EU Succession Regulation: What it Means for Cross-Border Estates

Samantha Tayler-Auld

Succession laws vary from country to country which historically made the administration of cross-border estates potentially complex. Since 17 August 2015, the EU Succession Regulation has given individuals in most EU Member States an element of choice over which country’s rules are to govern the succession of their estate.

Though this gives an element of certainty to beneficiaries and those administering estates, legal problems can still arise, as a recent German case highlights. The probate team at Osbornes Law has extensive experience in advising clients in estates involving cross-border assets in Europe and internationally.

What is the EU Succession Regulation?

Also known as ‘Brussels IV’, the Regulation applies to 25 EU member states, it doesn’t apply to Denmark, Ireland or the UK.  It aims to reduce the uncertainty of who will inherit your estate where you have connections in more than one country, each having its own law on the succession of estates.

The Regulation allows individuals to elect, in their Will, that they would like the succession laws of their country of nationality to govern the succession of their estate as a whole, rather than the law of the country in which they are habitually resident in when they die.

Can UK nationals use the regulation?

While the UK opted out of the Regulation and is no longer in the EU, this does not prevent a UK national from electing UK law to apply to their estate. The UK national should choose the law of the jurisdiction (England & Wales, Scotland or Northern Ireland) that they are most closely connected with. On death, EU Member States must then apply that jurisdiction’s law to estate assets in those countries.

As England & Wales have ‘testamentary freedom’, allowing testators to leave their estate to whomever they wish, choosing the law of England & Wales to govern the succession of assets is often favoured by clients who have assets in other countries where a ‘forced heirship’ regime exists.  However, a recent judgment in Germany has held that English law over the ‘compulsory portion’ (enforced under German law), is not applicable, despite the testator being a UK national who elected UK law to govern the succession of his estate as a whole.

A German case highlights the limits of the regulation

Despite the clarity offered by Brussels IV, a recent German court case has shown the limits of electing English law. In June 2022, the Federal Court of Justice ruled that German public policy could override the chosen succession law in certain circumstances.

In this case, a British national who had lived in Germany for over 50 years excluded his adopted child from his will, having elected English law to govern his estate. However, the court held that this exclusion violated German public policy, as children are guaranteed a compulsory portion of the estate under the German constitution – a right not recognised under English law.

This decision reinforces that while the EU Succession Regulation offers flexibility, local laws and constitutional protections can still override foreign law in some circumstances.

Key takeaways for cross-border estate planning

• Make a will that includes a valid election under the EU Succession Regulation if you want English law to apply to your foreign assets.
• Consider local laws carefully – some countries may override your chosen law if it conflicts with core principles like forced heirship.
• Seek advice from specialists in both English and international law to ensure your wishes are upheld and your estate is protected.
• Review and coordinate all your wills – having separate wills in different countries can be effective, but they must not conflict.

Get expert advice

At Osbornes Law, our specialist probate and private client lawyers have extensive experience dealing with international estates and applying the EU Succession Regulation. We work closely with foreign lawyers where needed to ensure your will reflects your wishes and avoids disputes over wills.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811