The majority of estate planning is carried out to reduce the extent to which an estate will be liable to inheritance tax and to ensure that a person’s assets are inherited by the people that he or she chooses, rather than the people chosen for him or her by the operation of intestacy laws.
Inheritance tax is a tax imposed by the UK Government and it does not depend on any EU regulation to govern the way in which it applies except in relation to ancillary matters such as the recognition of charities throughout the EU for charitable tax exemptions instead of simply charities based in the UK. To that extent, whether the UK remains part of the EU is unlikely to have any significant effect on the way in which UK inheritance tax is applied to the majority of estates.
The laws of succession
For succession purposes, succession laws are also governed by internal laws of the UK. In this instance, the constituent parts of the UK have separate systems of law which govern how an estate shall pass in the event that a person dies without leaving a will. Someone who dies with his or her domicile in England, for example, will find that the rules of intestacy operate very differently from a person who dies with his or her domicile in Scotland. Importantly for the purposes of this discussion, however, none of the bodies of succession law are affected to any great extent by the laws of the EU.
Recently the EU did create a succession regulation known as “Brussels IV”. Brussels IV is designed to reduce the administrative burden that is placed on a person who happens to own assets in more than one EU member state. For example, a person who is domiciled for succession purposes in Germany may own a holiday home in Spain. Prior to the creation of Brussels IV, that person would likely have required a will in both Germany and Spain in order to deal with the property in each of the respective jurisdictions. Brussels IV allows that person to elect for the succession laws of one of the jurisdictions to apply to the whole of his or her estate, meaning that only a single will is required in accordance with the laws of the chosen jurisdiction.
However, the UK has not opted into the regulation. It is thought to be possible at the moment (but is subject to doubt by some legal commentators) that a person domiciled in part of the UK would be able to include an election under Brussels IV which would be binding on a member state which was party to the regulation but the same would not be true the other way around. For example, if someone was domiciled in Scotland and he or she owned a holiday home in Greece, he or she may be able to elect for the laws of Scotland to apply to the whole of his or her estate, including to the property in Greece. If the person was domiciled in Greece, however, and tried to elect for Greek law to apply to the whole of the estate, it is unlikely that this would be enforced by the Scottish courts.
Because the UK has not opted into Brussels IV, whether the UK remains part of the EU has little to no effect on the applicability of Brussels IV to the internal succession laws of the UK. Therefore, for the purposes of personal succession and inheritance tax planning, the decision to remain part of the UK or to leave the EU will have little impact from a strictly legal point of view.