European Union: Cross-Border Estate Planning: The EU Succession Regulation

Last Updated: June 4 2015
Article by Carla Figliomeni and Rahul Sharma

A major step in facilitating cross-border succession was the adoption of the Regulation (EU) Nr. 650/2012 (hereinafter referred to as the "Succession Regulation") on jurisdiction, 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. This was adopted on July 4, 2012 and will come into force and be applicable to deaths of residents of the succession countries after August 17, 2015.

Except for Denmark, the United Kingdom and Ireland, the Succession Regulation provides a direct application in all participating member states of the Succession Regulation (hereinafter referred to as the "Member States") and enjoys universal character, in that, the selected law can be the law of a Member State, a third state, or a non-Member State. On a practical level, the Succession Regulation is an important arm in ensuring predictability for estate planners.

Overview of the Succession Regulation

The Succession Regulation introduces novel concepts for cross-border succession planning of individuals with multi-jurisdictional estates and ties to a Member State. The following is a brief overview:

  1. Habitual Residence: The most significant criterion of the Succession Regulation is the adoption of the concept of "habitual residence" instead of nationality or domicile. This means that the law of the country where the deceased habitually lived just before death will govern inheritance issues. In the Member States, one law will govern the entire succession, regardless of the nature or location of the estate's assets. The default rule will, in general, apply the laws of the habitual residence of the deceased except if:

    1. the deceased maintained closer ties with another state, established on a case-by-case basis;
    2. state mandatory laws where the property is located overrule this general rule; and
    3. "renvoi" to another jurisdiction is authorized, depending on the circumstances.
  2. Choice of Law: The second major innovation of the Succession Regulation is Article 22, which allows the general rule of habitual residence to be overridden by the use of the concept of "party autonomy", in order to permit a testator or testatrix to designate his or her national law as the law governing his or her succession as a whole, by expressing his or her choice expressly and in testamentary form. Should a person have a double nationality, he or she may designate one of the two national laws.
  3. Jurisdiction in one Country: While Article 22 allows for a testator or testatrix to select his or her national law to govern his or her succession, the Succession Regulation does not allow a testator to choose the jurisdiction to rule on the succession as a whole. Instead, the courts of the jurisdiction in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.

    However, where the deceased made a choice of law in accordance with the Succession Regulation and the law chosen by the deceased is of a Member State, the parties concerned may agree that the courts of that Member State are to have exclusive jurisdiction to rule on any succession matter. The courts of the Member State in which the deceased had his habitual residence at the time of death can also decline the jurisdiction to govern the succession if it considers that the courts of the Member State of the chosen law are better placed to rule on the succession, taking into account the practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets.
  4. Loi Uniforme: Article 20 of the Succession Regulation provides that any law specified by the Succession Regulation shall be applied whether or not it is the law of a Member State.
  5. European Certificate of Succession: The Succession Regulation creates a European Certificate of Succession. This standard form certificate will allow heirs, legatees, executors or administration to prove their legal status and/or rights in any of the Member States and benefits from direct circulation, as no formality is needed for its recognition in the destination state.

What Canadian Advisors Should Know

The Succession Regulation may impact Canadian nationals who own property in a participating EU member state (and who may also be nationals of that state). Canadian estate planners and advisors should be cognizant of the Succession Regulation if they are approached by a client who meets this general profile, particularly if they or the client is concerned about the potential application of a forced heirship or other particular legal regime to the succession of the client's EU-based property. Although the Succession Regulation will take effect later in the year, it is possible and may be prudent for Wills prepared for dual Canadian and EU nationals at this time to specify that the law of a particular Canadian province should apply to the succession of the testator or testatrix's property.

Particularly given the changing nature of EU law and the jurisprudence which is likely to ultimately emerge from the Succession Regulation, it may be most advisable to involve a lawyer who practices in the EU member state in which a client may have property (and of which he or she may be a national) in order to determine whether:

  1. A separate Will should be prepared in respect of the property located in the EU member state, which Will may specify that the law of the Canadian province in which the client is otherwise resident should apply. Although the Succession Regulation appears to permit such an election to be made, many aspects of the general law of the jurisdiction in which property is located might nevertheless apply to its succession. This is also contemplated in Article 10 of the Succession Regulation. As an example, transfers or conveyances of real property would quite likely need to proceed under the local laws of the jurisdiction in which the property is situated. Similar considerations may apply to the shares of corporations governed by the laws of an EU member state. The Succession Regulation does not appear to permit a client or testator to divert himself or herself from the application of local law in such cases; and
  2. Whether other aspects the law of the EU member state in question (such as matrimonial laws, for example) or public policy considerations may impact the effect of any elections made under and in keeping with the Succession Regulation.

The Unanswered Questions of the Succession Regulation

The principle of Public Policy is a recognized "national" safeguard in Private International Law and it will be possible to set aside a provision of an otherwise applicable law, if said law should be obviously incompatible with the Public Policy of the State. Contrary to Public Policy would mean a significant contradiction to a State's basic social principles. Difficulties will remain for some time as the right to choose the law of the nationality under the Succession Regulation will certainly trigger questions as to what constitutes a contradiction to basic social principles and whether, the concept of forced heirship, prevalent in countries like France, Italy and Germany, might be ruled as being a basic social principle which cannot be trumped by a deceased's testamentary choice of law. If the concept of forced heirship is ruled to constitute a matter of Public Policy, the autonomy provided to a testator or testatrix under the Succession Regulation may be significantly curtailed.

The Succession Regulation appears to leave many questions unanswered. While there are outstanding questions as to which law will apply to the succession of a deceased person's EU-situs property, there are also unanswered questions as to which law applies to other incidental matters such as testamentary capacity, revocation, children's rights and legitimacy, adoption, status of spouses, recognition of foreign divorces, family allowances, matrimonial property regimes, and the ranking of creditors of the estate. The Succession Regulation suffers from exceptions, which underline a renewal of conflict of laws and legal issues that practitioners must keep in mind when implementing the multijurisdictional estate plan. It will be interesting to see how these questions are answered over time, if at all, and whether guidance will emerge from EU courts and tribunals which will be of assistance to Canadian advisors when discuss the impact and implications of the Succession Regulation with their clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Carla Figliomeni
Rahul Sharma
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.