Inheritance within the European Union – Case Studies

Since 17th August 2015, the EU Succession Regulation has determined which jurisdiction's inheritance law applies in such cases. The Succession Regulation applies to all EU member states, with the exception only of the Republic of Ireland and Denmark. According to the Regulation, the national law to be applied no longer depends your citizenship, rather on your habitual residence at the time of your death. In simple terms, this is assumed to be the jurisdiction deemed the centre of your family and social life. Whether a given jurisdiction qualifies as a habitual place of residence will also depend on how long and how regularly you are resident there. In turn, your habitual place of residence then also determines which court has jurisdiction over proceedings regarding your estate. 

However, as an Austrian citizen, you can stipulate that Austrian (inheritance) law should be applied to your estate by making a choice of law  to this effect. If you stipulate that Austrian law should apply to your estate and later die in Brussels (for example), and if you were habitually resident in Brussels at the time of your death, a Belgian court would still have jurisdiction over your affairs in most cases. However, the Belgian court would have to apply Austrian law. 

One option in this situation would be for you to stipulate in your will that Austrian law should apply to your estate. The heirs could then appoint an Austrian court to consider matters pertaining to your estate by means of an agreement on jurisdiction, rather than have your affairs dealt with by a court in the country where you were habitually resident at the time of your death (in this case, Belgium). 

According to the EU Succession Regulation, your habitual place of residence is the decisive factor not only for determining the applicable law in this situation, but also for deciding which court will have jurisdiction over your estate . This is designed to simplify cross-border inheritance proceedings. With this aim in mind, the Regulation stipulates that the courts in the EU member state where you were (last) habitually resident should therefore have jurisdiction over all of your movable and immovable assets, irrespective of where these assets are physically located. Wherever possible, the relevant court should also be allowed to apply its own national law to the relevant proceedings. 

According to the EU Succession Regulation, this means that if you are habitually resident in Italy at the time of your death, the Italian courts will have jurisdiction over your estate and, unless you have made a choice of law to the contrary, will apply the provisions of Italian law to the relevant proceedings. 

If you already have a valid will, the provisions of the EU Succession Regulation do not affect its validity in any way. However, if the will includes provisions regarding assets or individuals abroad, we recommend that you arrange for your will to be reviewed. For example, if a German citizen lives and works in Austria at the time of their death, German law no longer applies automatically to their estate. If an individual is habitually resident in Austria at the time of their death, this means that the Austrian courts will have jurisdiction over the estate, to which they will apply Austrian (inheritance) law. Citizens who do not wish this to be the case can exercise their right to stipulate that their estate be settled according to the law of the country of which they are a citizen. 

However, be aware that there are a number of points to consider when making a choice of law: First of all, you can only choose the law of the country of which you are/were a citizen at the time of your choice of law, or at the time of your death. There are also formal requirements for making a choice of law. Specifically, the choice of law must meet the formal requirements of a disposition of property upon death. 

If you are habitually resident outside Austria (or plan to be habitually resident outside Austria in the future) but you still want your estate to be dealt with according to Austrian law on the basis of your Austrian citizenship, you need to act now. As a rule, if you change the country in which you are habitually resident, the Succession Regulation stipulates that jurisdiction over your affairs passes to the courts in the country in which you are resident, and that those courts will apply local inheritance law. This foreign jurisdiction and inheritance law will apply to all your assets, including to immovable property in Austria. 

Any gender-specific references in this document should be interpreted as applying equally to all gender identities.