Since the EU Succession Regulation came into force in 2015, its rules on cross-border successions apply to estates of deceased persons whether they were resident in Italy at the time of death or they owned property situated in Italy. The EU Succession Regulation applies to estates relating to citizens of third countries as well as citizens of EU member states and aims to simplify and clarify the administration of the deceased’s assets, in particular laying down guildelines for determining which country’s law should apply to the succession as a whole.
The Regulation applies to British citizens resident in Italy or who own property in Italy, in spite of the fact that the UK opted-out of participating in the Regulation, despite having played a central role in drafting its provisions. The United Kingdom is considered a third country in the rules of the Regulation, in the same way as the US, Australia or Japan for example. The Regulation provides the following rules in relation to the law which will apply to the deceaseds’ estate:
- the applicable law will be the law of the place of ‘habitual residence’ of the deceased OR
- the applicable law will be the law of nationality of the deceased if this had specifically been chosen in writing in their lifetime (usually in a Last Will and Testament)
There has been only a handful of cases on the interpretation of the Succession Regulation decided by the European Court of Justice since 2015. One of the most recent cases was decided on 22nd June 2022 and dealt with the renunciation of an inheritance (Case no C-617/20).
The rules on renouncing an inheritance vary between EU states. In Italy for example, a renunciation cannot be partial, it must relate to the entre succession and not part of it. An heir cannot therefore decide to accept an inheritance of assets in one country while refusing to accept the others. Renunciation is effective from the date of death of the deceased. If the heir renouncing the estate has children of their own, their status as heir will automatically pass to those children in equal shares. The status of heir carries duties to deal with the deceased’s debt as well as the right to inherit assets, and for this reason the heir of a person who had left substanital debt may choose to renounce the inheritance to avoid becoming liable to the creditors. In order to be effective, the renunciation of inheritance made in Italy must be witnessed by a Notary and then filed with the court of the place of last residence of the deceased.
This recent judgement of the ECJ in Case no. C-617/20 dealt with the death of a Dutch citizen who died resident in Germany, leaving his estate according to the law of intestacy to his wife and two nephews. The nephews were resident in Holland and declared in front of the Dutch court that they intended to renounce the inheritance. The renunciation was written in Dutch and then sent to the German probate court. The German court refused to accept their renunciation as not in the form recognised in Germany, and considered them to be heirs. The nephews appealed to the German courts who then referred the question to the ECJ for a preliminary ruling.
The ECJ ruled on what form the reununcation must take if the heir lives in a different country from where the deceased was resident. The court decided that the renunciation may take the form which is considered valid by the recognised authority of the place of habitual residence of that heir. The form of renunciation does not have to be in conformity with the law applicable to the succession which may be a different law. The renunciation made in Dutch was considered valid and effective from the date it was made.