I am completely confused. I was told that a new arrangement with England and France will come into force this year, allowing me as an english woman domiciled in France to make a Will leaving my assets in France and in England to whoever I wish, as I could if I were domiciled in England.
There are millions of Expats living overseas, and our service at ExpatLegalWills.com serves the needs of the 2.8 Million Canadians, the 6 million Americans and the 13 million Brits who now regard themselves as Expats.
Many of these expats still have property in their homeland, and are in the process of writing their UK Wills. The question that immediately comes to mind is that if they are living say, in Dubai, how can they write a Will that covers both their assets in the UK, Canada or US while they are resident in their new home.
What has made this more complicated, particularly for the Brits living in Europe is as new law that is coming into effect in 2015 called The European Succession Regulation No.650/2012 (or “Brussels IV”).
How does the European Succession Regulation affect UK Wills?
The European Succession Regulation is trying to resolve the conflicts that arise when different countries have different laws dictating what can and cannot be done within a Will.
For example, most continental European countries have estate planning laws based on a Civil Code (as does Quebec in Canada and Louisiana in the US) that place significant restrictions on how most of a person’s estate will pass to surviving members of a family. This is radically different to the law of England, Canada and the US where for the most part, an individual is free to dispose of his or her assets however they wish (once a spouse and dependents have been taken care of). But even between Civil Code countries, there are variations in what can and cannot be included in a Will.
Brussels IV includes the following key clauses;
- The default position is that the law of the state in which the deceased was “habitually resident” applies to succession to assets across the Brussels IV zone.
- The deceased may choose the law of his nationality to apply to succession to all of his assets across the Brussels IV zone.
- Where a person has more than one nationality he may choose the law of any one of them.
- The selection of the law of nationality must be made expressly in a will or analogous document.
The application of these clear rules to the estates of individuals dying after 17 August 2015.
How Brussels IV impacts Expats in Europe
On the face of it, allowing a person to choose the laws governing their estate plan seem to have resolved a major headache, but there is a key caveat
Brussels IV will apply to the estates of individuals dying after 17 August 2015 and in all of the EU Member States except the UK, Denmark and Ireland, who have opted out.
The UK has opted out of Brussels IV, so the impact on Expats writing their UK Wills is very limited.
Due to the UK opt-out, if the expatriate UK national owns English land this will still pass in accordance with English law, and must be included in a Will written under English (and Welsh) law. However, it is possible that the expat could apply English law to their assets held in their new country of residence (but it remains to be seen how the courts in each European country work with Wills written under English law).
The Recommendations from ExpatLegalWills.com
Even with the new European Succession Legislation our advice remains exactly the same. We have always recommended that if you own assets in the UK, Canada or the US, and you are now living overseas, you should write a Will that complies to the laws of the UK, Canada and the US for your respective assets. If you have assets in your new country of residence you should prepare a separate Will to cover the assets held in your new home country.
However, do not simply prepare two standard Wills as there is a danger that one can revoke or cancel the other. Each Will must be written with the clear language that it is dealing specifically with the assets held in the respective country.
Our advice is the same for a Brit living in Dubai as a Canadian living in Florida, or an American living in Mexico. If you still have assets in your home country write a Will for each jurisdiction in which you hold assets.
It is a little unfortunate, but judging by the support calls and emails coming into our customer helpline, Brussels IV has simply added confusion to an already complicated situation. People who were ready to write their UK Wills are now wondering if they can write a French Will to cover their UK assets – this would be a mistake.
At ExpatLegalWills.com you can prepare your US, Canadian and UK Wills in about 20 minutes from the comfort of your own home for $34.95 or £24.95. You can also login to your account and update this Will whenever you need to make a change.
Each time you step through the service, simply download and print your Will and then sign it in the presence of two witnesses to make it a completely legal Will that complies with the laws of England, Wales, Canada or the US.
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