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Brussels IV or not, you need an express election

'By making an election, there's absolutely no question. English law will apply'

4 November 2015

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The EU Succession Regulation (Brussels IV) may not be able protect the EU assets of British citizens resident in the UK, unless an express election is made in their will for UK succession laws to apply.

The uncertainty results from the fact that the UK has not elected into the regulation meaning the default position of habitual residence is not concrete.

The cautionary note has been sounded Kate Johnson, an associate at Wedlake Bell, who said that the position may not be resolved until a case comes before the courts.

'There are some mixed views on what the UK status is in respect of this regulation in Europe. There is a real risk that if you haven't got an election, while the default position would be country of residence, English law will refer the matter back to where the property is located.

'Let's say it's France for example, there is a risk that France will accept that and then apply French succession law, so we're back where we were a year ago.

'By making an election, there's absolutely no question. English law will apply but it only applies in an internal sense, it will not refer and any referral will not be accepted. So it's really important, particularly for clients with English nationality who are resident in England to make that election.

Brussels IV came into effect on 17 August 2015 and applies across all EU member states, barring Ireland, Denmark and the UK.

It allows citizens of the signatory nations to elect which jurisdiction's succession laws (from among the signatory states) they want to apply to their assets on death.

 

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Tax & Wealth structuring Wills, Trusts & Probate