National succession laws in comparative perspective
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National succession laws in comparative perspective Eleanor Cashin Ritaine
Published online: 11 April 2013 © ERA 2013
Abstract The 2012 EU Regulation on Cross-Border Successions allows EU citizens to choose between at least two possible applicable laws to their succession: the law of their country of residence or the law of their nationality. This paper aims to highlight how substantive succession law issues are treated in a diverse manner throughout Europe and thus increase the need for proactive estate planning when the choice of law is open to the European resident. In particular, the paper provides a pan-European panorama of the national legal rules on successions, forced heirship rights and, the means of transferring the estate. Keywords Successions · Private international law · Estate planning The 2012 EU Regulation on Cross-Border Successions1 shall enter into force in 2015 but it provides for an opt-in alternative as of now. It aims to harmonize the rules governing the conflict of laws applicable to a succession by applying a single law to the inheritance, i.e. the law of the country of the final residence of the deceased by
1 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on Juris-
diction, Applicable Law, Recognition and Enforcement of Decisions and Acceptance and Enforcement of Authentic Instruments in Matters of Succession and on the Creation of a European Certificate of Succession, OJEU 27.7.2012, L 201/107. This article is based on a presentation given at the Conference “Cross-border Successions within the EU”, organised by ERA on 22–23 November 2012 in Trier. E. Cashin Ritaine, Associate () Lalive, PO Box 6569, 1211 Geneva 6, Switzerland e-mail: [email protected] E. Cashin Ritaine University of Lorraine, Metz, France
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default or alternatively the law of his/her nationality by express choice. This law shall apply to the whole of the succession, no distinction being made between immovable and movable property.2 As a result, by allowing EU citizens to choose between at least two possible applicable laws, the law of their country of residence or the law of their nationality,3 it becomes paramount for estate planning practitioners to be knowledgeable of the substantive content of succession laws throughout Europe.4 The impact assessment preceding the adoption of the Regulation showed that some nationals are more prone than others to reside in a different country than the country of their nationality: this is the case of in particular, Irish, Italian, Portuguese, Greek, Spanish and French nationals.5 Alternatively, some countries host a large number of foreigners: Luxembourg (20 % of population), Belgium (5.5 %), Ireland, Sweden and Germany. Additionally, many European citizens have assets in other countries, whether immovable property or bank accounts.6 Around 450,000 cross border succession cases7 are processed every year in EU Europe and imply cooperation between legal professionals in different countries with often di
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