- Ann Vranken - Alain De Jonge
- Succession Regulation , International succession , cross-border estate , heir , cross-border succession , deceased , estate planning
The European Succession Regulation (further referred to as ESR) ensures that each succession is handled in a coherent manner, under one single legal system, and by one single court. This prevents parallel proceedings and the resulting possibility of conflicting decisions.
The ESR also introduces the European Certificate of Succession and ensures that decisions
relating to successions, authentic instruments and court judgments are circulated within the
European Member States.
This regulation is applicable throughout the whole of the European Union, except in Denmark, Ireland and the United Kingdom.
An international succession exists when several different countries are involved in an estate, e.g. a second residence is owned abroad, or shares or a stake are held in a company in a another Member State, if the deceased held a different nationality to that of the country of his last place of residence or has heirs who live in a different Member State, etc.
This makes the settlement of a cross-border estate much simpler and less expensive. From now on, heirs need no longer approach notaries and courts in several Member States. It remains to be seen whether all of the competent authorities will be able to make the ESR a reality.
The ESR introduces a number of major changes to current Belgian succession law, both regarding jurisdiction and the law applicable for cross-border successions.
Under the new European succession law, the law of the country of the deceased’s last habitual residence applies to the succession, and the deceased’s choice of law is limited to the law of the country of his nationality at the time of the choice of law or at the time of his death.
Thus, persons with Belgian nationality may choose Belgian law.
The system of the forced share (minimum share of the estate), to which children of a deceased are entitled in our country, does not apply in other Member States, and therefore, in certain cases, may come under pressure. It is possible that heirs will lose this protection, pursuant to the application of European succession law, if the deceased moves abroad and the law of that country becomes applicable to the estate. In such case, it may be opportune to choose the law of the country of nationality, i.e. Belgium.
Foreigners living in Belgium fall under the application of Belgian succession law, except if they choose the law of the country of their nationality.
Estate planning can be very useful for persons who own real estate in several Member States, which fall under the ESR.
You can consult the ESR by clicking here.
A more detailed article on this topic can be found by clicking here