As the concept of globalisation continues to expand for both commerce and individuals, British nationals far more frequently decide to retire to a European country such as Spain, Italy, Portugal or Greece. The attraction of a warm year-round climate, friendly culture and marvellous beaches, together with a more affordable cost of living lures many people to relocate to such a benign environment in their older years.
Giambrone & Partners have years of experience in assisting our clients to successfully purchase real estate and obtain the appropriate visas to enable them to settle in Europe.
However, our experience indicates that there is one consideration that is often overlooked, that of how your estate is to be dealt when the time comes. Inheritance law in many European counties is not the same as that in the UK. If you are permanently domiciled in Europe and fail to make a will and die intestate, the laws of succession in the country in which you live will prevail.
The laws governing succession vary across different European jurisdictions, the fundamental difference between inheritance law in Europe and the UK, is the principle of testamentary freedom in the UK, as opposed to the forced heirship laws of succession in Europe.
British nationals are far more familiar with testamentary freedom where an individual can leave their estate to any person or organisation that they choose to advantage. Giambrone & Partners has inheritance experts in all our European offices that have many years of experience in assisting our clients to manage their worldwide assets in different jurisdictions.
Gonzalo Butori, a Partner,commented "If you permanently reside in any European country and you have not made a will, your estate will be dealt with under the laws of succession of that country. This means that set percentages of your estate, depending on the family relationship, will pass in automatically to your family members." Gonzalo further commented "the concept of forced heirship delivers rigid intestate succession laws. Your spouse and children will inherit, however if the testator is unmarried or widowed without children, their next of kin will automatically inherit. A person who fails to take the appropriate legal steps make their wishes clear with regard to their estate who has separated from but not divorced their spouse will inadvertently be leaving the person, from whom they are estranged, an inheritance if they do not make a will expressly indicating who their beneficiaries are and under which jurisdiction they wish the will to be enacted."
Forced Heirship –v- Testimony Freedom
The rationale behind the concept of forced heirship is to protect the economic interests of the family and ensure that certain heirs receive a fair share of the inheritance with nobody overlooked. Whereas testamentary freedom in the UK permits individuals to have the freedom to dispose of their assets in any way they choose in a valid will and does not compel the testator to advantage their relatives over and above the testator's wishes. This principle increasingly becomes more important as society changes bringing with it extended and blended families.
The consequences of the changing society mean that there are often potential beneficiaries such as step-children that a testator would like to include. Also, not all couples are married and unmarried partners and the children of an unmarried couple now enter the equation as well. Many people like to leave their friends bequests to reflect their life-long friendships and have particular charities that they wish to advantage.
In some cases, their pets are among the beneficiaries of choice. Paul O'Grady, the well-known dog lover, comedian and quiz show host, left £125,000 to care for his dogs. However, the designer Karl Lagerfeld left a substantial sum directly to his cat Choupette, it is not known through which jurisdiction or legal instrument that Mr. Lagerfeld employed as pets cannot be beneficiaries in France.
There are laws of succession in England and Wales in the event of a person dying intestate that allow spouses and civil partners to inherit from the deceased's estate. The children of a marriage may also inherit a specified portion if the estate is over a designated amount. If the estate exceeds The Inheritance (Provision for Family and Dependants) Act 1975 this allows challenges for reasonable financial provision from the estate when made by a person who was receiving financial support from the deceased but was not listed as a beneficiary.
In order to enable a British national living permanently abroad to retain testimony freedom the individual should commission the drafting of an English will under the laws of England and Wales and also a will under the jurisdiction of residence stating that you wish your estate to be dealt with under the terms of your English will. It is imperative that the two wills have the same terms to avoid confusion or the opportunity for relatives you did not wish to include as beneficiaries to challenge the will and leave your actual beneficiaries with a protracted legal fight on their hands that will eat into their inheritance. Giambrone & Partners inheritance lawyers are qualified in more than one jurisdiction and therefore are completely familiar with the provisions of the inheritance laws and have extensive expertise in drafting wills for more than one jurisdiction ensuring the harmonisation of your particular wishes in relation to your beneficiaries and allowing you peace of mind.
Gonzalo Butori has acted in a wide range of international and domestic commercial disputes. He has experience dealing with complex, high-value cross-border litigation.
He has particular proficiency with regard to dispute resolution and represents claimants and defendants in all jurisdictions on civil and commercial matters and regularly appears at mediation and arbitration hearings. He has acted as co-advocate in international commercial disputes under ICC and LCIA rules as well as in other Alternative Dispute Resolution (ADR) proceedings.
Gonzalo is recognised for his pragmatic approach and solution-based strategies as well as his robust capacity when pursuing his clients' best interests. When heavy disclosure in foreign languages is required, he develops and delivers technical solutions to ease the cost burden for clients.
He has assisted in a number of cross-border transactions involving various EU jurisdictions and achieved successful results. He also specialises in the conflict of laws and jurisdiction.
Gonzalo regularly advises international clients in connection with family and inheritance-related cross-border matters. Throughout his experience, he has dealt with high-value and complex matters both contested and non-contested which have given him valuable exposure and experience. Gonzalo is well regarded for his extensive knowledge and expertise when advising foreign clients with regard to their financial interests, mainly relating to estate management issues, together with probate in both Spain and England & Wales.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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