Rebecca Suthers
Senior Associate & Chartered Legal Executive
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Date Published:11 Mar 2016 Last Updated:10 Apr 2021

Who will inherit my foreign property when I die?

Wills, Trusts & Probate

On 17 August 2015 the EU Regulation, known as Brussels IV, came into effect. From that date the Regulation may affect what happens to your estate when you die and therefore you may need to change your Will, or make one if you haven’t already. Our specialist Wills, Trust and Probate Solicitors can provide specific advice on this complex area.

The Regulation affects anyone who dies after 17 August 2015 and has connections in more than one of the EU Member States, excluding Denmark & Ireland, who, like the UK, opted our of the Regulation. For example the Regulation will affect you if you live in the UK, but have a holiday home in France, Spain, Italy or Portugal.

If you have a holiday home in France you need to know which law will govern who inherits your estate when you die (also known as the law of succession). This is because certain countries, such as France, have what is commonly referred to as ‘forced heirship’ rules, which dictate how parts of your estate will pass, effectively ring-fencing it for close family. Each country has its own rules to decide which law applies (known as conflict of law rules) and due to complexities that can arise from this, the Regulation seeks to provide more certainty by introducing more common conflict law rules for EU member states to apply.

In countries where the Regulation applies, the default position is that the law of the country in which you are habitually resident when you die will govern the succession of your estate, unless you are more closely linked with another country (e.g. because you have only just moved out of it) or you choose to apply the law of your nationality, which can be done in your Will.

For countries where the Regulation does not apply, they will continue to apply their conflict of law rules, so that in the UK any immovable assets, such as property, will be governed by the law of the country in which they are situated (in the above example that would be France) and any moveable assets, such as bank accounts, would be governed by the law of the country in which you are domiciled (the place you consider your permanent home, even if you don’t live there, for example you could be working and living in Spain, but consider your permanent home as the UK).

Therefore, in order to avoid uncertainty it is advisable to include a choice of law election in your Will.

The Regulation does not change the tax law of any country. However, the liability of taxes often depends on who inherits, so if French Succession Law was to apply to your French holiday home then your children would be entitled to part of that property. Therefore, not only would the surviving spouse co-own the property with the children, but also there may be tax to pay. Whereas if you made an English Law Election in your Will and left your entire estate to your spouse then no Inheritance Tax would be payable until the surviving spouse had died.

Also, there is still some uncertainty as to who will administer your estate.In the UK Executors will administer your estate, but in France the beneficiaries do this. However, under the Regulation if English Law is to apply then the English system should be adopted and this could cause problems in France.

Another issue is where a claim is brought against an estate. For example any persons who would otherwise benefit under the forced heirship rules, but do not as a result of the English Law election applying, may try to make a claim.

If nothing else, what is clear from the above is that the regulation is anything but clear. For further advice as to how to proceed and make a Will to ensure that English Succession Law applies to your estate please contact our Wills, Trust and Probate Lawyers to make an appointment. Our specialist Wills, Trust and Probate Solicitors can be contacted at any of our offices including, Ringwood, Bournemouth, Poole, Swanage and London or email email@ellisjones.co.uk.