The European Union (EU) adopted on July 4, 2012, an ambitious yet realistic European regulation designed to standardize the rules of jurisdiction and applicable law as well as the recognition of foreign documents and decisions in matters of succession.
Territorial scope of application
This Regulation will of course apply first and foremost throughout the EU. Well, almost all of it: Great Britain, Ireland and Denmark have not ratified it.
It is important to note that the application of the laws of countries that are not party to the Regulation (i.e. Swiss law, if applicable) will also be accepted in relations with third countries.
Temporal scope of application
This Regulation will enter into force and apply to deaths occurring on or after August 17, 2015.
The EU Member States accept that provisions are already being drafted in accordance with this regulation, which may open up new ways of planning your estate. However, they will only be applicable once the regulation comes into force, i.e. in summer 2015.
The main principles
The principles adopted by the European Regulation are very similar to those of our Federal Act on Private International Law (LDIP):
– the unity of the law applicable to the succession, for all movable and immovable assets, wherever they are located,
– the connection to the law of the last habitual residence of the deceased; this is a criterion analogous to that of “last domicile of the deceased” in Swiss law
– and the possibility to choose the law applicable to the succession (professio juris), either his or her national law, even if you also have the nationality of your country of residence (contrary to Swiss law, which does not allow this).
In concrete terms, this will newly involve
– the recognition of pacts of succession, either because they have been concluded in a country that admits them (Switzerland), or on the condition that they are admitted by the national law of at least one of the future deceased,
– and that of the institution, and the broad powers, of the executor of the will.
The European Certificate of Succession
Another innovation of the Regulation is the creation of a European Certificate of Succession, a sort of authentic certificate of inheritance which will be recognized in all the Member States to attest, in particular, to the status of heir, legatee or executor of a will. It will have the particularities of being subsidiary (it will not replace internal documents) and of being valid for only six months from the date of its issue!
From a tax perspective
On the other hand, this regulation will not apply to tax matters and will therefore only indirectly – but nevertheless certainly – have an impact on the amount of inheritance tax to be paid.
If you have a situation with international characteristics, do not hesitate to consult your notary to find out whether the new European Inheritance Regulation plays a role in your case and to provide you with detailed information.