CROSS BORDER SUCCESSION, 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 UK Assets passing Worldwide Assets going from: UK dom UK deemed dom France French Assets passing Worldwide Assets going: from French resident to French resident (sometimes) Spain Spanish Assets passing Worldwide Assets going to a Spanish resident Netherlands Dutch Assets passing from Dutch resident (within 10 years) Germany German Assets passing 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? Last HR is forum? Enforceable Succession Agreements

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

CROSS BORDER SUCCESSION, Richard Frimston CROSS BORDER SUCCESSION, WILLS AND TAX IN EUROPE BRUSSELS IV & OTHER RECENT DEVELOPMENTS February 2011