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EU edges closer to cross-border succession regulation

UK has opted out of draft Europer-wide rules

23 January 2012

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EU member states look set to adopt cross-border succession regulations after the European Council of Ministers reached broad agreement on a final package. The proposed new legislation, Brussels IV, is designed to set up legal procedures for the resolution of cross-border succession and probate disputes. Currently, Britain and Ireland have not opted in to the regulation’s scope, although the UK has been involved in the negotiations with a view to opting in later.

Brussels IV is a step in the right direction, believes Richard Frimston, partner and head of private client at Russell-Cooke. “The draft regulation provides for the application of a basic connecting factor for determining both the jurisdiction of the courts and the law applicable to a succession with cross-border implications. The proposed regulation will also allow a person to choose the law to govern the succession the law of the state of his/her nationality, which would take some of the stress out of estate planning by creating predictability.

“A European Certificate of Succession would enable persons to prove their status and/or rights as heirs or their powers as administrator of the estate or executor of the will without further formalities. This should result in faster and cheaper procedures for all those involved in a succession with cross-border implications,” he said.

However, Frimston does not believe that UK participation is likely any time soon. “The EU presidency statement makes it clear that when assessing whether to include any new provisions on the restoration of lifetime gifts in the text of the future regulation, consideration should be given to the fact that such provisions may pave the way for a later opting in by the UK and Ireland. n this context, the other member states will need to be assured that the future regulation will eventually apply to those two member states. In other words, the EU will only give ground on this, if the UK commits to opting in. This seems unlikely in the current political climate.”

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Wills, Trusts & Probate