Richard Frimston
CROSS BORDER SUCCESSION,
WILLS AND TAX IN EUROPE
BRUSSELS IV
& OTHER RECENT DEVELOPMENTS
February 2011
What do we mean by Cross
Border?
 Foreign assets
 a Foreign Will
 Foreign connections
 Domicile
 Residence
 Nationality
of self or family member
Connecting factors
 Domicile
 Habitual Residence
 Nationality;
and, in some cases
 Religion
 Situs
What do we mean by Cross
Border?
 Foreign assets
 a Foreign Will
 Foreign connections
 Domicile
 Residence
 Nationality
of self or family member
Matrimonial Property Regimes
•
•
•
•
•
Primary
Secondary
Community
Separation
Legal Regime
Private International Law
Tools
 Jurisdiction
 Applicable Law
 Recognition and
 Enforcement
Matrimonial Property Regimes &
Private International Law
• France, Luxembourg,
Netherlands - Hague
Convention XXV of
14/3/1978
• England & Wales –
Radmacher v Granatino
• Scotland
• USA
• EU – Rome IV
•
Mismatches of Connecting Factors
for Taxation
UK
–
–
•
France
–
–
•
Spanish Assets passing
Worldwide Assets going
• to a Spanish resident
Netherlands
–
–
•
French Assets passing
Worldwide Assets going:
• from French resident
• to French resident (sometimes)
Spain
–
–
•
UK Assets passing
Worldwide Assets going from:
• UK dom
• UK deemed dom
Dutch Assets passing
Worldwide Assets going
• from Dutch resident (within 10 years)
Germany
–
–
German Assets passing
Worldwide Assets going
• from German resident (within 5 years)
• to German resident (within 5 years)
Double Tax Relief
• UK / India
– overrides deemed domicile rules
– no IHT in India
– UK cannot tax non UK assets
• French Assets passing between UK doms
e.g. usufruct from A to mixed sex PACS partner B
– on death of A
• 40% UK IHT
• no French tax - exempt
– on death of B
• 40% UK IHT
• no French succession tax – not taxable
– DTR of no assistance
Cross Border Estate Planning
 Formal validity of Wills
 Succession law
 (Administration)
 Taxation
Planning Points
• Reduce number of Jurisdictions
• Review domicile, residence and nationality
with a view to possible changes
• Review Wills for:
– Forced Heirship issues
– Inheritance taxes in all jurisdictions
• Overriding Trusts?
• Joint Property
• Matrimonial Regime Change
European Union
• Treaties
• Regulations
• Directives
Brussels IV
• EU Succession Regulation 2013?
• Hague Conventions XXI
(Administration) and XXXII
(Succession)?
• Habitual Residence not
Domicile?
• Choice of Nationality (or HR?)
at time of choice?
• Unitarian not schismatic and
no Renvoi?
Brussels IV
• use choice of law provisions and
succession agreements
• nationality and common law domicile
still connecting factors for other
purposes
• personal status
– marriage
– parent child
• tax
• double tax treaties
Richard Frimston
CROSS BORDER SUCCESSION,
WILLS AND TAX IN EUROPE
BRUSSELS IV
& OTHER RECENT DEVELOPMENTS
February 2011