That is a rather simple question but the answer is sadly more complex. We would start off by saying that if you have assets abroad it’s absolutely vital that you seek legal advice about your estate in the UK and any assets abroad.
In England and Wales, we have testamentary freedom meaning that you are allowed to dispose of your assets freely, ie to give your assets to whom you choose.
Much of Europe, on the other hand, has variations of fixed inheritance (or forced heirship), often meaning children have precedence over surviving spouses. Without planning, that could result in unexpected tax liability, not to mention an unwelcome surprise when for example, an adult child seeks to enforce their rights over now widowed spouses home and evict them.
Nowadays, no article is complete it seems if it does not touch on the B-word – Brexit.
International succession focuses on how a person’s property is dealt with on their death, who is entitled to inherit, and the mechanism for paying tax and other creditors. When it comes to the provisions in a Will, the local succession laws can sometimes conflict and to make things easier for EU member states, Regulation No 650/2012 seeks to enable EU citizens to organise their succession and remove any obstacles relating to cross border estates.
However, following on from Brexit, that will not necessarily be the case. The current position is that the decision to leave the EU does not affect the application of the above regulation in relation to Wills of UK citizens. The UK is not bound by the succession regulation above mentioned, but we will be a third state (ie non-EU member state) for the purpose of succession regulation above mentioned, meaning the rules on ‘Renvoi’ come into play.
The rules on Renvoi are somewhat complicated, but in essence, usually need to be considered when a conflict of law arises between two or more jurisdictions.
Ok back to basics: in many cases, you do need to make a Will here in the UK, and whilst the common perception is that you also need to make a Will in the country where you own other assets, that may not always be the case. In any event, you need to be very careful that any Will you make abroad does not revoke your English Will.
Next, you ought to consider the following points:
Where are you domiciled?
If a choice of succession law is to be made, does it need to relate to your worldwide estate?
For double taxation relief or unilateral relief, where is it preferable to pay tax first?
Will each jurisdiction accept the Will as valid under their private international law rules?
Which estate planning techniques are suitable taking into account tax regimes in all relevant jurisdictions?
If you can answer any of those questions correctly then you’re likely to be a Wills, Trust and Probate Lawyer. If you can’t, then you need to speak to one!
Where it is appropriate to have a single Will covering worldwide assets, it’s still advisable to take advice in all relevant jurisdictions. In the case of a foreign estate or legacy, it might also be worth considering the appointment of separate executors to deal with the administration in those countries.
The bottom line is, whether you need the UK and a foreign Will is dependent on some, or all, of the above, and the impact of law and tax in two (or more jurisdictions).
The best advice we can give you is to always seek professional legal advice from a qualified Solicitor when preparing your Will, especially if you have assets abroad.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
Wills, Trusts & Probate team
020 7183 1485