At the outset, it is necessary to clarify what cross-border succession proceedings are in general. The concept refers to cases in which elements of the laws of several countries are involved. For example: the deceased had Polish citizenship, was living in the UK for the last years of his life, or was living in Poland before his death, but most of his assets (e.g. real estate) are located in the UK or in another country. However, for the purposes of this article, the essence of which is to Succession law and Brexit, We assume that links exist between Poland and the UK.
We will deal with the explanation below:
- Where to start in a succession case with a cross-border element?
- What court will have jurisdiction to resolve disputes on such a basis?
- Is there a solution that can easily help us get through the drudgery of such proceedings?
We respond below. However, inFor more information on international succession proceedings, click here: Cross-border succession proceedings
Succession law and Brexit - first steps
For most of us, succession issues are not a straightforward subject - because they always involve the loss of a loved one. It is a process that we will try to sort out at least a little, making it easier to understand. In any case, in proceedings with a cross-border element, the main thing to establish is:
- which courts will have jurisdiction to hear the case,
- the law of which country the courts hearing the case should apply,
- in which State the judgment will be enforced.
Cross-border successions are quite complex. The best evidence of this will be the following example. It may happen that - as a result of the application of the cross-border rules - a Polish court will be competent to hear the case and will apply Polish law. However, it may also happen that a Polish court will be forced to apply British law and the decision itself will be enforced e.g. in Hungary.
Succession matters and Brexit
Interestingly, this may come as a bit of a surprise to many people, but in succession matters Brexit has not triggered significant changes. Indeed, matters of this kind in the European Union are governed by Regulation No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession, of which the United Kingdom never accepted. Thus, national regulations continue to apply in relations between Poland and the UK.
As for inheritance from the United Kingdom, the proceedings in this regard are dependent on the amount of the inherited property. Where a testator has left a legacy in the UK with a value of over £5,000, it will be necessary to obtain from the court a special permits (Grant of Representation). It constitutes an authorisation to manage inheritance mass. The heir must also state the deceased's whereabouts at the time of death. Importantly - remember, that the application concerning the said empowerment is subject to a court fee. In addition, the heir must appear in court in person - in order to swear an oath about his obligations as heir.
Succession law and Brexit - the competent court
The court having jurisdiction to hear the succession case is court of the testator's habitual residence. Place of habitual residence is the place where life interests are concentrated. This concept does not include deaths related to holidays, business trips or short-term contracts.
If the testator had no place of habitual residence in any EU Member State party to the Regulation (the United Kingdom has opted out of its application in its territory), the competent court will be court of the place in which the succession property is located. However, an important condition applies in this regard. It will be possible if the testator at the time of death:
- was a national of a Member State or
- without being its citizen...
..had at least his habitual residence in the relevant country (no more than 5 years before the succession case was brought before the court). This means that, for example, an inheritance case after a Polish citizen who left Poland 7 years ago and died in the UK may be conducted before the Polish courts.
Remember!
In order to avoid the risk that British law will be chosen to govern the succession of a Polish citizen residing in the United Kingdom, it is possible to make a declaration choosing the law of the country of nationality at the time of making the choice. Such a declaration can be made, for example, in a will.
In the case of a testator's declaration of choice of Polish law, his heirs have the possibility to transfer the succession case itself to Poland - by concluding a prorogation agreement (even if the provisions of the regulation itself implied the jurisdiction of a foreign court).
Example content of the clause:
Acting pursuant to Article 22 of Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, I declare that I am choosing Polish law, being the law of the State of my nationality at the time of making this choice, as the law to govern all matters concerning my succession.
European Certificate of Succession
The Regulation referred to above introduces the institution of a European Certificate of Succession. This certificate confirms in another Member State - which is a party to the Regulation - the right to the succession or the right to individual items of property. As the United Kingdom is not a party to the Regulation, a separate procedure for the recognition of the Polish judgment in the Islands will have to be carried out in such a case.
For more information, see pages of the European Judicial Atlas in civil matters.
Are you unsure or unsure what the next steps are when it comes to inheritance in the UK? Or perhaps you would like to discuss Completing the requirements and regulations relating to a cross-border succession? We are at your service from Monday to Friday from 9.00 a.m. to 5.00 p.m. Tel.
