When in Rome….

Ever dreamed of owning a little pied-a-terre in Paris or Provence, or fixing up an old farmhouse overlooking the vineyards in Italy? Maybe you have inherited such a place from relatives who still live in the “old country.”

Canadians of European descent who have close ties with the country of their ancestors might be aware that most countries in Europe have fixed rules about who may inherit an estate. When it comes to real estate (“immovables”), the forced heirship rules of the country where the property is located will apply, no matter what your Will says about it.

The good news is that in most of the European Union, that will change as of August 17, 2015, due to EU regulation 650/2012, otherwise known as Brussels IV.   I’ll just refer to it as the “Regulation.”

After August 17th 2015, a Canadian who has immovables in a participating EU country can choose either the law of the country of their habitual residence (which is defined in the Regulation, sort of), or the law of their nationality to govern the devolution of their EU estate, provided they have taken appropriate action before their death. Appropriate action would be to make a designation in their Will as to which law should apply to the immovable in question.

The only EU countries not participating in the changes brought about by the Regulation are the UK, Ireland and Denmark, which have opted out. If you own immovable property there, you should, of course, seek appropriate legal advice about the laws of succession in the relevant country.

If no choice of law designation is made, the default position is that the succession of the EU immovable property will be governed by the country of their habitual residence. This could have serious negative consequences for a Canadian living or working abroad.

As an example, the estate of a Canadian living or working in the Hague who does not amend her Will (whether it is a Canadian or Dutch Will) may find that the apartment she purchased in Paris is subject to forced heirship under Dutch law.

The Regulation requires that appropriate action be taken during the lifetime of the owner of the European real property. That means making a nomination in a Will which is valid in the EU country where the property is situated, stating which law will apply to their real estate. For that reason it is vitally important, for those who own real property in the EU, to determine if their Canadian-made Will would be valid in the country where the property is located, and if it is not, to ensure that a Will dealing with that property is made in the relevant country.

Although the Regulation does not come into effect until August 2015, if you are the owner of EU immovable property, you should consider amending your Will now in anticipation of it coming into effect, because if you wait, and become unable to make the amendment later, your existing Will applies.  If that Will has no choice of law provision, then it will be ineffective in disposing of the EU property and forced-heirship of the relevant country will apply.

However, a nomination made now has no effect until next August, so please do obtain advice from a specialist in international succession and probate law, either here in Canada or in the country where you reside and/or own land, about what would happen if you died in the interim.

There are of course many other considerations when owning real property in a foreign jurisdiction, including tax laws and non-succession related estate matters. We can put you in touch with the appropriate advisers if you have any questions about estate planning for foreign assets.

About Maria Holman

I am a lawyer with over 28 years of experience in drawing up wills, trusts and estate plans, helping clients with probate and estate administrations and advising business owners and families about planning for the future. You can find me at Webster Hudson & Coombe LLP in Vancouver, BC
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