The EU Succession Regulation

Habitual residence, not nationality and not location

Habitual residence at death is the starting point, rather than the location of each asset or nationality alone. Article 21 sets the general rule: unless the Regulation provides otherwise, the law applicable to the succession as a whole is the law of the State in which the deceased had his habitual residence at the time of death. Article 21(2) makes an exception where all the circumstances show a manifestly closer connection with another State.

Two words in that sentence do most of the work. As a whole means one law is the Regulation’s starting point for the entire estate, rather than automatically selecting the law of each asset’s location. Third-country renvoi, discussed below, can affect that result. Habitual residence is a factual question about where a person’s life was actually centred, not a matter of registration, and it is capable of being genuinely uncertain for someone who divided their year between two countries.

Article 4 deals with jurisdiction on the same basis: the courts of the Member State in which the deceased had his habitual residence at the time of death have jurisdiction to rule on the succession as a whole.

A British couple who retired to Paphos twenty years ago may well be habitually resident in Cyprus, in which case Cyprus succession law is the general starting point for a Cyprus court’s assessment of their estates, including assets in England. An English court is not bound by the Regulation, so the treatment of the English assets must also be checked there.

You may choose the law of your nationality, and it has to be done in the will

You can override that by choosing the law of the country whose nationality you hold. Article 22 allows a person to choose, as the law governing the succession to their estate as a whole, the law of the State whose nationality they possess at the time of making the choice or at the time of death. A person with more than one nationality may choose the law of any of them.

An express choice in a properly prepared will gives the clearest record of the intention. Article 22(2) also permits a choice demonstrated by the terms of a disposition of property upon death. Article 83 contains transitional rules for choices and dispositions made before 17 August 2015, including circumstances in which a law is deemed chosen. The absence of an express clause does not therefore prove that no choice exists. The document and its date must be examined; telling the family what law you intend is not a substitute.

It matters in Cyprus for a concrete reason. Under the Wills and Succession Law, Cap. 195, a reserved portion can arise, so that part of the estate is distributed by law whatever the will says. Whether it arises, and in what proportion, depends on which close relatives survive. Choosing the law of a nationality that does not impose a reserved portion, or choosing a law that does when the default would not, changes who inherits. The analysis runs in both directions and it is set out under making a will in Cyprus and wills made abroad and Cyprus property.

The Regulation applies even when the other country is outside the EU

This is the point most often missed, and it is the one that matters most to clients from outside Europe.

Article 20 provides that any law specified by the Regulation is to be applied whether or not it is the law of a Member State. The Regulation is universal in that sense: it is a set of rules that a Cyprus court uses to identify the governing law, and the law it identifies may perfectly well be that of a country that has nothing to do with the European Union.

So an Australian national habitually resident in Cyprus is within the Regulation as applied here, and may choose the law of their nationality under Article 22. Australia has different territorial systems of succession law: Article 36 determines how the relevant State or Territory is identified. It is not enough to assume that Australia has one uniform succession law. Equally, Cyprus law is the general starting point for an American who dies habitually resident here without a valid choice, subject to the Regulation’s exceptions.

Article 34 matters where the Regulation points to the law of a non-EU country, for example through habitual residence in Australia. Within that Article’s conditions, the foreign conflict rules can refer the matter back to the law of a Member State, or onward to a third State that would apply its own law. This is called renvoi. It does not apply to a law validly chosen under Article 22, or to the other exceptions listed in Article 34(2). Australian residence alone therefore does not settle which succession rules govern Cyprus land.

The United Kingdom never took part, and that cuts one way only

The United Kingdom and Ireland did not take part in the adoption of the Regulation and are not bound by it, and Denmark likewise did not take part. That is recorded in recitals 82 and 83.

The conclusion many people draw from this is the wrong one. Non participation means the courts of those countries do not apply the Regulation. It does not take a British national outside it when the estate is being dealt with in Cyprus, because Cyprus is bound by the Regulation and a Cyprus court applies it. Read with Article 20, the result is that a Cyprus court uses the Regulation to identify the governing law and may perfectly well identify the law of a part of the United Kingdom.

A British national habitually resident in Cyprus who makes no valid choice will generally have Cyprus law applied to the succession by a Cyprus court, subject to the Regulation’s exceptions. That can bring the Cyprus reserved portion into play even though the United Kingdom never joined the Regulation.

The practical consequence is that the choice under Article 22 deserves more attention from British clients rather than less, and that the two sides of the estate have to be planned together. What a grant obtained in England does and does not achieve here is a separate question, dealt with under administering a Cyprus estate from abroad.

What the governing law actually decides

Article 23 provides that the law determined under the Regulation governs the succession as a whole, and it sets out what that covers. It includes who the beneficiaries are and their shares, the capacity to inherit, the transfer of the assets to the beneficiaries, the powers of executors and administrators, liability for the debts of the estate, and the distribution of the estate.

The location of the flat does not, by itself, decide the succession law under the Regulation. The applicable-law analysis, including any relevant renvoi, comes first. This does not displace every local requirement: Article 1(2)(l) excludes registration requirements and the effects of registration or failure to register. Cyprus court and Land Registry procedures still require separate attention.

The Regulation also introduced the European Certificate of Succession, a certificate for use by heirs, legatees, executors and administrators who need to invoke their status or exercise their rights in another Member State. It is presumed to demonstrate accurately the elements established under the law applicable to the succession, and it exists to spare families the repetition of the same proof in each country. It operates between Member States, so it does not answer the question of what is required in a country that did not take part.

The work is done while the person is alive

A person who wants to make a choice of law must do so during life. After death there can still be substantial legal questions about habitual residence, any valid or deemed choice, the validity of a will, renvoi and the beneficiaries’ entitlements. They are not merely questions of paperwork.

In practice that means establishing where habitual residence is likely to be found, and being candid about the cases where it is genuinely arguable. It means deciding whether a choice of national law improves or worsens the position, which depends on which relatives survive and on what the chosen law does about forced shares. It means making that choice expressly in the will rather than assuming it. And where there are assets in more than one country, it means deciding whether one will or coordinated wills best serve the estate. A separate will for every country is not automatically required. Where there are several wills, they must be drafted so that they do not unintentionally revoke each other.

Where the estate includes Cyprus immovable property, the practical steps that follow a death are set out under estate administration and, for property specifically, under inheriting property in Cyprus from abroad.