For many, sporting attention turns to qualification for the UEFA European Football Championship. The Euros. For the international/ constitutional lawyer (not me!), Group A offers Brexit (Scotland), EFTA (Norway), the EU (Spain and Cyprus) and, on a European level, all teams are in the Council of Europe (including Georgia). The global arena is also important for succession and estate planning matters.
There are, for us, four critical points to consider when dealing with succession across borders. Domicile, land and buildings, will validity and the EU Succession Regulation.
Domicile
Very broadly, it is the country to which you are most legally connected. Many legal points flow from domicile (or similar other concepts used in somecountries). It will affect the validity of wills and decide which law governs succession to, at least, your moveable estate. Moveable estate being essentially all assets apart from land and buildings. We will return to land and buildings in a moment. Domicile can also have an important role in the application of any forced heirship systems that determine that certain parts of an estate must go to certain family members irrespective of the terms of a will. One to watch.
For more on domicile (via Rod Stewart) click here.
Land and buildings
We just mentioned the role of domicile in succession to moveable assets. For many, many countries the law of the jurisdiction in which any land and buildings is physically situated will govern succession to such land and buildings. (We do English but those that like Latin call that the lex situs.) This role of that country’s law in personal estate planning with that foreign asset needs to be considered.
It means one might need a will in that other country. There might be forced heirship that applies to land to factor into thoughts and planning. The process and administration to transfer title following death requires attention. Getting good and reliable local advice that connects with your Scottish estate planning is the critical step to get this right.
Where do I sign up? Validity of wills
Domicile, habitual residence, the assets involved and physical location at the time of making a will can all affect how a will is validly signed.
Even after Brexit… the EU Succession Regulation
We have talked about this before in more detail (click here) but a reminder now about the role of the EU Succession Regulation. This can be very useful. It can affect will drafting in Scotland. It can affect the form of any will in the other relevant country. If there are to be two wills, they need to coordinate with each other.
Again, joined up Scottish and foreign advice is needed to navigate this. The way the regulation works can be a very useful. It can be critical to smooth succession and ensuring the ‘right’ people inherit your estate.
A ‘bonus’ European update: charities and UK tax
Unlike the other great European sporting event we have just had, the Six Nations, no bonus points in the Euro qualifiers. But a bonus update here. Although, it is one that restricts the notion of ‘charity’ and ‘charitable’ under UK tax law.
The definitions of a charity and a Community Amateur Sports Club (CASC) for tax purposes have changed. This alters over a decade of these definitions being based on EU case law.
The new rules will change things so that only charities that come within the jurisdiction of the High Court in England, Wales or Northern Ireland, or the Court of Session in Scotland will qualify for UK charitable tax reliefs .
For CASCs, it will change the location condition so that the CASC must be based in the UK and provide facilities for eligible sports in the UK.
If an individual or corporate makes a donation to a non-UK charity from 15 March 2023, UK tax reliefs (such as gift aid) are only available if the charity has ‘asserted their UK charitable status’ prior to 15 March 2023 under transitional provisions. After April 2024, taxpayers will not be eligible for UK tax relief on donations to EU or EEA charities and these entities themselves will be unable to claim gift aid.
New applications for charity tax recognition from 15 March 2023 must meet the new definition. The new rules can affect some legal drafting in documentation for charities.
For help on international succession and charities issues, get in touch with Alan Eccles: alaneccles@bkf.co.uk / 07470808717.
Alan is the Scottish author for the textbook, International Succession.
“Alan is a professional, dedicated and passionate private client lawyer.” Another interviewee enthuses: “Alan has excellent experience and technical knowledge, and he is very generous with his time.” Chambers High Net Worth 2022
“Alan is highly experienced in advising third sector organisations on governance and constitutional issues, including charity establishment and modernisation… He blends excellent technical advice with both pragmatism and plain communication.” Chambers and Partners 2023
Scottish charity and wealth law 