22 April 2015
Thanks to a new regulation coming into force across the EU, remembering a charity in your Will has become a whole lot easier.
For those of you fortunate enough to own second homes in places such as France or Spain, or who have moved to another EU country for a better lifestyle, you will probably be aware that a large proportion of your estate usually has to be left to your family when you die.
This is because most EU countries practise what is known as forced heirship in one form or another. This is a completely alien concept to individuals used to the more relaxed English approach which allows complete testamentary freedom.
Individuals wishing to leave foreign EU property in their Will to a favourite charity in the past may have become unstuck by the forced heirship rules, which would prevent the charitable gift from taking effect. Instead of the gift passing to a charity to do good, it may have ended up going to an estranged or perhaps unknown relative completely against the testator’s wishes.
However, you can now make an election in your Will to have the law of your nationality govern the succession of your foreign EU property. Therefore if you are an English national you can leave your property to whomever you wish.
This could of course include charitable organisations, but also friends and perhaps other relatives who would not be the direct heir under the normal forced heirship rules.
The election can be added to your Will now, but will not be effective until 17th August 2015. If you fail to make an election, there is a real risk that your foreign EU property will be subject to the local rules of the particular country where the property is situated, which may override the wishes in your Will.
I would recommend anyone who has foreign property in the EU to review their existing Will to ensure that the gift you have in mind, perhaps to a charity, will be effective.
As this is a new and specialised area of law I would also recommend seeking advice from a solicitor with cross border expertise. When making enquiries, you should ask if they are familiar with EU Regulation 650/2012.
This video from my colleague Dan Harris provides further, detailed guidance about the new regulation and its general application.
Simon Lofthouse, cross border specialist solicitor at Stone King
Click for more guidance on remembering a charity in your Will.