The New EU Succession Regulation – How Will Switzerland Be Affected?

Author:Ms Tina Wüstemann, Daniel Leu and Sandra Spirig
Profession:Bär & Karrer
 
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In order to harmonize the conflict of law rules on cross-border successions, the EU enacted the "EU Succession Regulation" ("the Regulation") in 2012. The Regulation will be applicable as of 17 August 2015. It has direct binding effect and will apply in all EU Member States except for the United Kingdom, Denmark and Ireland. Although Switzerland is not an EU Member State, the Regulation is relevant for Swiss residents and Swiss nationals under certain circumstances.

Relevance of the Regulation for Swiss Estate Planning?

The Regulation will be applicable to estates of persons deceasing on or after 17 August 2015 with either their "last habitual residence" in a Member State, leaving assets in a Member State, or, in case of a choice of law, in favor of the law of a Member State.

While Switzerland is not an EU Member State, the Regulation will affect estates of persons residing in Switzerland and Swiss nationals living in an EU Member State in the following cases:

if the deceased person was a Swiss national and had his last habitual residence in an EU Member State; if the deceased person was an EU national who had his last habitual residence in Switzerland and who made a choice of law in favor of his EU national law; or if the deceased person was residing in Switzerland and leaves assets in an EU Member State. Example: The estate of a deceased Swiss national who had his last habitual residence in Switzerland comprises a holiday home in the South of France and a bank account in Vienna. According to the Regulation, French courts have jurisdiction over the French holiday home and Austrian courts have jurisdiction over the bank account in Vienna, applying Swiss inheritance law as the law of the state of the last habitual residence of the deceased. If the deceased person was a French national (with his last habitual residence in Switzerland), French courts would be competent not only to rule on questions of succession regarding the French holiday home, but also regarding the worldwide estate, again applying Swiss succession law to the whole estate.

As Switzerland in this example also has jurisdiction (due to the last domicile of the deceased in Switzerland), there exists a risk of contradicting judgments and additional costs.

Hence, the Regulation is also highly relevant for Swiss nationals with their last residence in the EU, Swiss residents with a passport of an EU Member State or assets in the EU or a resident in the EU with assets in...

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