English Wills and Overseas Property


Are you a UK resident with property in another country, or a UK citizen living overseas with property in the UK?

The number of UK citizens living overseas is on the rise. In 2015 there were approximately 1.2 million UK-born people living in other EU member states. If you are a UK resident and own property in another EU member state, or are a resident elsewhere in the EU with UK based property, the passing of your property when you die will depend on the relationship between the legal rules of both countries. It is therefore important to have an awareness of a provision of EU law which applies to people who died after 17th August 2015 – The European Succession Regulation, more commonly known as ‘Brussels IV’.

What is ‘Brussels IV’?

Brussels IV is an EU Regulation. EU Regulations automatically become law in any member state which signs up to them. For consenting member states Brussels IV provides that the law of the country in which you are ‘habitually resident’ decides how your property will pass. For example, if you are a UK resident and own property in France, UK law will determine what happens to your French property.

You are ‘habitually resident’ in a country if you usually reside there. This is different from being ‘domiciled’. It is easier to be habitually resident in a country than to be domiciled.

The UK is not a signatory to Brussels IV. This means that the Regulation only affects UK residents who specifically have property in EU member states which are signatories to it. If you have property in any other parts of the world, Brussels IV does not apply. Ireland, Denmark and the UK are the only member states which are not signatories.

If you do not want the legal system of your country of residence to determine how your property passes you can make an express election in your Will for another country’s legal system to apply. For example, you might want to make an election if you are a French national living in the UK and want French law to apply.

I have property in Scotland and I am resident in England/I have property in England and I am resident in Scotland. What does this mean?

Scotland and England are part of the same legal entity (the UK), for the purposes of EU law. Brussels IV does not change the relationship between the two countries.

There is however a conflict of laws between the Scottish and English legal systems. Scotland operates a system of ‘forced heirship’ meaning that specific family members have a right to certain portions of your property regardless of the terms of any Will. English law on the other hand provides for ‘testamentary freedom’ meaning that you have total freedom to decide who will inherit under your Will. If any family members are not due to benefit under your Will, and they wish to inherit, they will have to claim through the English courts. If you have Scottish property it would be sensible to seek advice from a Scottish solicitor, in addition to any solicitor you see for the drafting of your English Will.

I have property in an EU member state and am a UK resident/ I am an EU resident and have UK property – What is the impact of Brexit for me?

As the UK did not sign up to Brussels IV in the first place Brexit has no impact. Brussels IV has only been relevant in the past, and will only continue to be relevant in the future, when the other country involved is an EU member state which is itself a signatory to the Regulation.

Please contact our Asset Management department if you have overseas connections and would like to discuss how to deal with these in a Will.