INTERNATIONAL INHERITANCE LAW
The EU Succession Regulation: which inheritance law applies across borders
As soon as an estate crosses a border, an account in Austria, the flat in Cologne, retirement in Portugal, German inheritance law no longer applies as a matter of course. Within the European Union that is decided by the EU Succession Regulation, and it connects primarily to the last habitual residence, not to nationality.
What the EU Succession Regulation governs, and what it does not
The EU Succession Regulation (Regulation (EU) No 650/2012) determines which national inheritance law applies to an estate with a foreign element, which court decides about the estate, and how proof of succession takes effect across borders. It applies to estates where the deceased died on or after 17 August 2015.
For earlier deaths the old conflict-of-laws rules remain, which connected to nationality. What the EU Succession Regulation does not govern is inheritance tax, the spouses' matrimonial property regime, and the question of which document has to be produced to banks and registers after the death. That last point decides months of time in practice.
Habitual residence decides, not the registration slip
Under Article 21 of the EU Succession Regulation, succession is governed by the law of the state in which the deceased had their habitual residence at the time of death. Habitual residence is the actual centre of a person's life, and it is assessed rather than read off a document. What counts is the duration and regularity of the stay, where the family lives, where the home is furnished, where social ties exist.
What is not decisive: nationality, the registered address, where the property lies and where the bank is based. A registration in Cologne is no protection against Spanish inheritance law if life took place in Andalusia. Article 21(2) contains an exception for a manifestly closer connection with another state. That exception is narrow and is not a planning tool.
The choice of law under Article 22 and its form
Under Article 22 of the EU Succession Regulation you can choose, for your estate, the inheritance law of a state whose nationality you hold. What matters is your nationality at the time of the choice or at death. Anyone holding several nationalities can choose between them. There is no free pick: anyone holding neither Italian nor English nationality cannot choose those laws.
As to form: the choice of law has to be declared expressly in a disposition upon death or must follow from its terms. It belongs in a will or a contract of inheritance. A power of attorney is not enough, nor an advance healthcare directive, nor a letter to the children. With an effective choice of law the chosen law continues to apply even if you move later.
Unity of the estate: one law for the whole estate
The inheritance law determined under the Regulation applies to the entire estate, regardless of where the individual assets are located. The account, the securities portfolio, the household contents, the shareholding, the holiday flat: all under one law. The formerly widespread splitting of an estate by type of asset and place of location is therefore over within the Regulation's scope.
The practical value of that principle is considerable, because it makes dispositions plannable. Anyone allocating a share of the estate no longer has to work out whether something different applies to the property in France than to the account in Cologne.
Where the Regulation ends
The Regulation does not bind every state. Denmark and Ireland are not bound. The United Kingdom was not bound even before it left the European Union and is today a third state. For third states the position is: a court or a register there applies its own conflict-of-laws rules, and for immovable property those frequently connect to where it is located.
The result can be a de facto split: the German part of the estate is governed by the law determined under the Regulation, the property in a third state by the law of that state. Anyone with property in a third state therefore plans on two tracks, with an adviser on the ground.
Even within the European Union, special rules of the state where an asset is located can apply to particular types of asset.
The compulsory share follows the applicable inheritance law
Whether and to what extent family members receive a minimum share is decided by the applicable inheritance law, not by where those family members live and not by where the assets are. Under German law the compulsory share amounts to half the value of the statutory share of the estate and is a claim for money against the heir (section 2303 German Civil Code).
Other legal systems give children more extensive entitlements; others again allow greater freedom of testation. The choice of law is therefore also a decision about the compulsory share. But it is no blank cheque: only the laws of your nationality can be chosen, and whatever minimum entitlement that law provides for then applies in full, with its deadlines, rights to information and valuation rules.
The European Certificate of Succession
For proving the position as heir across borders the Regulation provides its own document: the European Certificate of Succession under Articles 62 et seq., which takes effect in the bound member states without any further procedure, but does not replace the German certificate of inheritance and is not compulsory.
Which document a bank, a register or a land registry ultimately requires, when it is applied for, and what takes its place in Denmark, Ireland and third states, is a question of administering the estate, not of which law applies.
Inheritance tax is a separate question
The EU Succession Regulation does not govern inheritance tax. That is the point most frequently confused. Who inherits and in what share follows inheritance law. Who pays tax, in which state and in what amount, follows the tax law of each state concerned. German inheritance law by virtue of a choice of law is no protection against two states taxing the same acquisition.
Germany has treaties on avoiding double taxation for inheritance tax with only a few states. Whether tax paid abroad is credited is a tax question your tax adviser answers. I am not a tax adviser, but I am happy to put you in touch with someone from my network. I identify the interface early so that the order of magnitude of the tax is known before any arrangement is signed.
Where families lose access to the assets
01
A move shifts the applicable inheritance law without anyone noticing
The most frequent case. A German will is written in 2012, in 2019 the couple move to Mallorca, and the will stays in the folder. If one of the spouses dies there with their habitual residence in Spain, the estate is administered under Spanish law.
02
The choice of law is missing or is in the wrong place
Many wills say nothing about the applicable law. Just as often the choice of law appears in a covering letter, in an advance power of attorney or in a note kept by an adviser. It is void there. It has to appear in the disposition upon death itself.
03
Two wills in two states contradict each other
Anyone who makes a will in Germany and years later a second one before a notary abroad for the property there often has two documents that partly cancel each other out. Revocation clauses in one language then catch the other document, although nobody intended that.
04
The holiday property is left unresolved
The flat by the sea appears in the planning only as a value, not as a legal question. Yet the state where it lies decides which document its register accepts. The heirs are then left with a property they can neither sell nor let.
How I proceed
01
Establishing the connecting factors
First we sort out what is where and where life actually takes place: the nationalities of everyone involved, the actual centre of life, any planned changes of residence, assets by country, existing dispositions, prenuptial agreements and the property regime.
02
Determining the applicable law and naming the gaps
From that information it follows which inheritance law would apply without a choice of law, where a choice of law changes something, and where the Regulation does not help because a third state is involved.
03
Aligning the aim with the compulsory-share position
Only then do we talk about drafting. Who is to receive what, who is to be provided for, which minimum entitlements are unavoidable. This is where it is decided whether a choice of law supports your aims or works against them.
04
Drafting the choice of law and the disposition
The choice of law is expressly included in the disposition. Where property and third states are involved, we clarify with a colleague in the state concerned, before signature, whether the arrangement can be implemented there.
A typical situation
01
Retirement in Italy, a flat in Cologne
A married couple with German nationality live in Cologne, own a flat here and a holiday flat in Italy. Retirement is to be spent largely in Italy. Without an arrangement, the applicable inheritance law depends on where the centre of their life actually was. Then comes the decision about a choice of German law. The result is a will containing a choice of law.
Advice from Cologne, assets in several states
Advice is given at Jakordenstrasse 8 in 50668 Cologne, by video or by phone. For testators and heirs from Cologne and the surrounding area, from Bergisch Gladbach, Leverkusen, Bruehl, Huerth, Kerpen or Frechen, the journey is short. Anyone living abroad sends documents electronically and gets an appointment that works across the time zones.
Which probate court will later deal with the estate follows the rules on local jurisdiction and not the seat of my office. I tell you early which body that is likely to be.
MORE TOPICS
More on international inheritance law
YOUR QUESTIONS
Frequently asked questions
In principle the inheritance law of the state in which you have your habitual residence at the time of death applies (Article 21 EU Succession Regulation), not the law of your nationality. Anyone moving permanently to Spain will as a rule fall under Spanish inheritance law. Under Article 22 you may choose German inheritance law. The choice has to be declared expressly in a will or a contract of inheritance.
Habitual residence is the actual centre of a person's life, not the registered address. The overall position is assessed: how long and how regularly a person stays in a state, where their family lives. Article 21(2) permits, in exceptional cases, the application of the law of a state with which there was a manifestly closer connection. Nobody should base their planning on that exception.
Through an express declaration in a disposition upon death, that is, in a will or a contract of inheritance. A handwritten will can contain a choice of law; notarial recording is not mandatory but helps with foreign authorities. Powers of attorney, advance directives, letters or an adviser's notes are not sufficient. Only laws of a nationality you hold at the time of the choice or at death can be chosen.
No. The EU Succession Regulation governs inheritance law, not tax. Which state taxes an acquisition follows solely from the tax law of the states involved, and that can lead to taxation in two states. A choice of German inheritance law changes nothing about this. Germany has treaties on avoiding double taxation for inheritance tax with only a few states.
I bill by time; my hourly rate is 280 euros plus 19% VAT. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. The initial consultation is also billed by time. Examining the connecting factor and adding a choice of law to an existing will stays modest. An arrangement involving property in several states does not. Notary costs and the costs of foreign advisers are additional.
Clarify the foreign element before it becomes a problem
If you have assets abroad, are planning a change of residence or hold a will that is older than your move, we will look at the connecting factors together. Advice throughout Germany, by video on request, in German or English.
INTERNATIONAL INHERITANCE LAW
The EU Succession Regulation: which inheritance law applies across borders
As soon as an estate crosses a border, an account in Austria, the flat in Cologne, retirement in Portugal, German inheritance law no longer applies as a matter of course. Within the European Union that is decided by the EU Succession Regulation, and it connects primarily to the last habitual residence, not to nationality.
What the EU Succession Regulation governs, and what it does not
The EU Succession Regulation (Regulation (EU) No 650/2012) determines which national inheritance law applies to an estate with a foreign element, which court decides about the estate, and how proof of succession takes effect across borders. It applies to estates where the deceased died on or after 17 August 2015.
For earlier deaths the old conflict-of-laws rules remain, which connected to nationality. What the EU Succession Regulation does not govern is inheritance tax, the spouses' matrimonial property regime, and the question of which document has to be produced to banks and registers after the death. That last point decides months of time in practice.
Habitual residence decides, not the registration slip
Under Article 21 of the EU Succession Regulation, succession is governed by the law of the state in which the deceased had their habitual residence at the time of death. Habitual residence is the actual centre of a person's life, and it is assessed rather than read off a document. What counts is the duration and regularity of the stay, where the family lives, where the home is furnished, where social ties exist.
What is not decisive: nationality, the registered address, where the property lies and where the bank is based. A registration in Cologne is no protection against Spanish inheritance law if life took place in Andalusia. Article 21(2) contains an exception for a manifestly closer connection with another state. That exception is narrow and is not a planning tool.
The choice of law under Article 22 and its form
Under Article 22 of the EU Succession Regulation you can choose, for your estate, the inheritance law of a state whose nationality you hold. What matters is your nationality at the time of the choice or at death. Anyone holding several nationalities can choose between them. There is no free pick: anyone holding neither Italian nor English nationality cannot choose those laws.
As to form: the choice of law has to be declared expressly in a disposition upon death or must follow from its terms. It belongs in a will or a contract of inheritance. A power of attorney is not enough, nor an advance healthcare directive, nor a letter to the children. With an effective choice of law the chosen law continues to apply even if you move later.
Unity of the estate: one law for the whole estate
The inheritance law determined under the Regulation applies to the entire estate, regardless of where the individual assets are located. The account, the securities portfolio, the household contents, the shareholding, the holiday flat: all under one law. The formerly widespread splitting of an estate by type of asset and place of location is therefore over within the Regulation's scope.
The practical value of that principle is considerable, because it makes dispositions plannable. Anyone allocating a share of the estate no longer has to work out whether something different applies to the property in France than to the account in Cologne.
Where the Regulation ends
The Regulation does not bind every state. Denmark and Ireland are not bound. The United Kingdom was not bound even before it left the European Union and is today a third state. For third states the position is: a court or a register there applies its own conflict-of-laws rules, and for immovable property those frequently connect to where it is located.
The result can be a de facto split: the German part of the estate is governed by the law determined under the Regulation, the property in a third state by the law of that state. Anyone with property in a third state therefore plans on two tracks, with an adviser on the ground.
Even within the European Union, special rules of the state where an asset is located can apply to particular types of asset.
The compulsory share follows the applicable inheritance law
Whether and to what extent family members receive a minimum share is decided by the applicable inheritance law, not by where those family members live and not by where the assets are. Under German law the compulsory share amounts to half the value of the statutory share of the estate and is a claim for money against the heir (section 2303 German Civil Code).
Other legal systems give children more extensive entitlements; others again allow greater freedom of testation. The choice of law is therefore also a decision about the compulsory share. But it is no blank cheque: only the laws of your nationality can be chosen, and whatever minimum entitlement that law provides for then applies in full, with its deadlines, rights to information and valuation rules.
The European Certificate of Succession
For proving the position as heir across borders the Regulation provides its own document: the European Certificate of Succession under Articles 62 et seq., which takes effect in the bound member states without any further procedure, but does not replace the German certificate of inheritance and is not compulsory.
Which document a bank, a register or a land registry ultimately requires, when it is applied for, and what takes its place in Denmark, Ireland and third states, is a question of administering the estate, not of which law applies.
Inheritance tax is a separate question
The EU Succession Regulation does not govern inheritance tax. That is the point most frequently confused. Who inherits and in what share follows inheritance law. Who pays tax, in which state and in what amount, follows the tax law of each state concerned. German inheritance law by virtue of a choice of law is no protection against two states taxing the same acquisition.
Germany has treaties on avoiding double taxation for inheritance tax with only a few states. Whether tax paid abroad is credited is a tax question your tax adviser answers. I am not a tax adviser, but I am happy to put you in touch with someone from my network. I identify the interface early so that the order of magnitude of the tax is known before any arrangement is signed.
Where families lose access to the assets
01
A move shifts the applicable inheritance law without anyone noticing
The most frequent case. A German will is written in 2012, in 2019 the couple move to Mallorca, and the will stays in the folder. If one of the spouses dies there with their habitual residence in Spain, the estate is administered under Spanish law.
02
The choice of law is missing or is in the wrong place
Many wills say nothing about the applicable law. Just as often the choice of law appears in a covering letter, in an advance power of attorney or in a note kept by an adviser. It is void there. It has to appear in the disposition upon death itself.
03
Two wills in two states contradict each other
Anyone who makes a will in Germany and years later a second one before a notary abroad for the property there often has two documents that partly cancel each other out. Revocation clauses in one language then catch the other document, although nobody intended that.
04
The holiday property is left unresolved
The flat by the sea appears in the planning only as a value, not as a legal question. Yet the state where it lies decides which document its register accepts. The heirs are then left with a property they can neither sell nor let.
How I proceed
01
Establishing the connecting factors
First we sort out what is where and where life actually takes place: the nationalities of everyone involved, the actual centre of life, any planned changes of residence, assets by country, existing dispositions, prenuptial agreements and the property regime.
02
Determining the applicable law and naming the gaps
From that information it follows which inheritance law would apply without a choice of law, where a choice of law changes something, and where the Regulation does not help because a third state is involved.
03
Aligning the aim with the compulsory-share position
Only then do we talk about drafting. Who is to receive what, who is to be provided for, which minimum entitlements are unavoidable. This is where it is decided whether a choice of law supports your aims or works against them.
04
Drafting the choice of law and the disposition
The choice of law is expressly included in the disposition. Where property and third states are involved, we clarify with a colleague in the state concerned, before signature, whether the arrangement can be implemented there.
A typical situation
01
Retirement in Italy, a flat in Cologne
A married couple with German nationality live in Cologne, own a flat here and a holiday flat in Italy. Retirement is to be spent largely in Italy. Without an arrangement, the applicable inheritance law depends on where the centre of their life actually was. Then comes the decision about a choice of German law. The result is a will containing a choice of law.
Advice from Cologne, assets in several states
Advice is given at Jakordenstrasse 8 in 50668 Cologne, by video or by phone. For testators and heirs from Cologne and the surrounding area, from Bergisch Gladbach, Leverkusen, Bruehl, Huerth, Kerpen or Frechen, the journey is short. Anyone living abroad sends documents electronically and gets an appointment that works across the time zones.
Which probate court will later deal with the estate follows the rules on local jurisdiction and not the seat of my office. I tell you early which body that is likely to be.
MORE TOPICS
More on international inheritance law
YOUR QUESTIONS
Frequently asked questions
In principle the inheritance law of the state in which you have your habitual residence at the time of death applies (Article 21 EU Succession Regulation), not the law of your nationality. Anyone moving permanently to Spain will as a rule fall under Spanish inheritance law. Under Article 22 you may choose German inheritance law. The choice has to be declared expressly in a will or a contract of inheritance.
Habitual residence is the actual centre of a person's life, not the registered address. The overall position is assessed: how long and how regularly a person stays in a state, where their family lives. Article 21(2) permits, in exceptional cases, the application of the law of a state with which there was a manifestly closer connection. Nobody should base their planning on that exception.
Through an express declaration in a disposition upon death, that is, in a will or a contract of inheritance. A handwritten will can contain a choice of law; notarial recording is not mandatory but helps with foreign authorities. Powers of attorney, advance directives, letters or an adviser's notes are not sufficient. Only laws of a nationality you hold at the time of the choice or at death can be chosen.
No. The EU Succession Regulation governs inheritance law, not tax. Which state taxes an acquisition follows solely from the tax law of the states involved, and that can lead to taxation in two states. A choice of German inheritance law changes nothing about this. Germany has treaties on avoiding double taxation for inheritance tax with only a few states.
I bill by time; my hourly rate is 280 euros plus 19% VAT. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. The initial consultation is also billed by time. Examining the connecting factor and adding a choice of law to an existing will stays modest. An arrangement involving property in several states does not. Notary costs and the costs of foreign advisers are additional.
Clarify the foreign element before it becomes a problem
If you have assets abroad, are planning a change of residence or hold a will that is older than your move, we will look at the connecting factors together. Advice throughout Germany, by video on request, in German or English.
INTERNATIONAL INHERITANCE LAW
The EU Succession Regulation: which inheritance law applies across borders
As soon as an estate crosses a border, an account in Austria, the flat in Cologne, retirement in Portugal, German inheritance law no longer applies as a matter of course. Within the European Union that is decided by the EU Succession Regulation, and it connects primarily to the last habitual residence, not to nationality.
What the EU Succession Regulation governs, and what it does not
The EU Succession Regulation (Regulation (EU) No 650/2012) determines which national inheritance law applies to an estate with a foreign element, which court decides about the estate, and how proof of succession takes effect across borders. It applies to estates where the deceased died on or after 17 August 2015.
For earlier deaths the old conflict-of-laws rules remain, which connected to nationality. What the EU Succession Regulation does not govern is inheritance tax, the spouses' matrimonial property regime, and the question of which document has to be produced to banks and registers after the death. That last point decides months of time in practice.
Habitual residence decides, not the registration slip
Under Article 21 of the EU Succession Regulation, succession is governed by the law of the state in which the deceased had their habitual residence at the time of death. Habitual residence is the actual centre of a person's life, and it is assessed rather than read off a document. What counts is the duration and regularity of the stay, where the family lives, where the home is furnished, where social ties exist.
What is not decisive: nationality, the registered address, where the property lies and where the bank is based. A registration in Cologne is no protection against Spanish inheritance law if life took place in Andalusia. Article 21(2) contains an exception for a manifestly closer connection with another state. That exception is narrow and is not a planning tool.
The choice of law under Article 22 and its form
Under Article 22 of the EU Succession Regulation you can choose, for your estate, the inheritance law of a state whose nationality you hold. What matters is your nationality at the time of the choice or at death. Anyone holding several nationalities can choose between them. There is no free pick: anyone holding neither Italian nor English nationality cannot choose those laws.
As to form: the choice of law has to be declared expressly in a disposition upon death or must follow from its terms. It belongs in a will or a contract of inheritance. A power of attorney is not enough, nor an advance healthcare directive, nor a letter to the children. With an effective choice of law the chosen law continues to apply even if you move later.
Unity of the estate: one law for the whole estate
The inheritance law determined under the Regulation applies to the entire estate, regardless of where the individual assets are located. The account, the securities portfolio, the household contents, the shareholding, the holiday flat: all under one law. The formerly widespread splitting of an estate by type of asset and place of location is therefore over within the Regulation's scope.
The practical value of that principle is considerable, because it makes dispositions plannable. Anyone allocating a share of the estate no longer has to work out whether something different applies to the property in France than to the account in Cologne.
Where the Regulation ends
The Regulation does not bind every state. Denmark and Ireland are not bound. The United Kingdom was not bound even before it left the European Union and is today a third state. For third states the position is: a court or a register there applies its own conflict-of-laws rules, and for immovable property those frequently connect to where it is located.
The result can be a de facto split: the German part of the estate is governed by the law determined under the Regulation, the property in a third state by the law of that state. Anyone with property in a third state therefore plans on two tracks, with an adviser on the ground.
Even within the European Union, special rules of the state where an asset is located can apply to particular types of asset.
The compulsory share follows the applicable inheritance law
Whether and to what extent family members receive a minimum share is decided by the applicable inheritance law, not by where those family members live and not by where the assets are. Under German law the compulsory share amounts to half the value of the statutory share of the estate and is a claim for money against the heir (section 2303 German Civil Code).
Other legal systems give children more extensive entitlements; others again allow greater freedom of testation. The choice of law is therefore also a decision about the compulsory share. But it is no blank cheque: only the laws of your nationality can be chosen, and whatever minimum entitlement that law provides for then applies in full, with its deadlines, rights to information and valuation rules.
The European Certificate of Succession
For proving the position as heir across borders the Regulation provides its own document: the European Certificate of Succession under Articles 62 et seq., which takes effect in the bound member states without any further procedure, but does not replace the German certificate of inheritance and is not compulsory.
Which document a bank, a register or a land registry ultimately requires, when it is applied for, and what takes its place in Denmark, Ireland and third states, is a question of administering the estate, not of which law applies.
Inheritance tax is a separate question
The EU Succession Regulation does not govern inheritance tax. That is the point most frequently confused. Who inherits and in what share follows inheritance law. Who pays tax, in which state and in what amount, follows the tax law of each state concerned. German inheritance law by virtue of a choice of law is no protection against two states taxing the same acquisition.
Germany has treaties on avoiding double taxation for inheritance tax with only a few states. Whether tax paid abroad is credited is a tax question your tax adviser answers. I am not a tax adviser, but I am happy to put you in touch with someone from my network. I identify the interface early so that the order of magnitude of the tax is known before any arrangement is signed.
Where families lose access to the assets
01
A move shifts the applicable inheritance law without anyone noticing
The most frequent case. A German will is written in 2012, in 2019 the couple move to Mallorca, and the will stays in the folder. If one of the spouses dies there with their habitual residence in Spain, the estate is administered under Spanish law.
02
The choice of law is missing or is in the wrong place
Many wills say nothing about the applicable law. Just as often the choice of law appears in a covering letter, in an advance power of attorney or in a note kept by an adviser. It is void there. It has to appear in the disposition upon death itself.
03
Two wills in two states contradict each other
Anyone who makes a will in Germany and years later a second one before a notary abroad for the property there often has two documents that partly cancel each other out. Revocation clauses in one language then catch the other document, although nobody intended that.
04
The holiday property is left unresolved
The flat by the sea appears in the planning only as a value, not as a legal question. Yet the state where it lies decides which document its register accepts. The heirs are then left with a property they can neither sell nor let.
How I proceed
01
Establishing the connecting factors
First we sort out what is where and where life actually takes place: the nationalities of everyone involved, the actual centre of life, any planned changes of residence, assets by country, existing dispositions, prenuptial agreements and the property regime.
02
Determining the applicable law and naming the gaps
From that information it follows which inheritance law would apply without a choice of law, where a choice of law changes something, and where the Regulation does not help because a third state is involved.
03
Aligning the aim with the compulsory-share position
Only then do we talk about drafting. Who is to receive what, who is to be provided for, which minimum entitlements are unavoidable. This is where it is decided whether a choice of law supports your aims or works against them.
04
Drafting the choice of law and the disposition
The choice of law is expressly included in the disposition. Where property and third states are involved, we clarify with a colleague in the state concerned, before signature, whether the arrangement can be implemented there.
A typical situation
01
Retirement in Italy, a flat in Cologne
A married couple with German nationality live in Cologne, own a flat here and a holiday flat in Italy. Retirement is to be spent largely in Italy. Without an arrangement, the applicable inheritance law depends on where the centre of their life actually was. Then comes the decision about a choice of German law. The result is a will containing a choice of law.
Advice from Cologne, assets in several states
Advice is given at Jakordenstrasse 8 in 50668 Cologne, by video or by phone. For testators and heirs from Cologne and the surrounding area, from Bergisch Gladbach, Leverkusen, Bruehl, Huerth, Kerpen or Frechen, the journey is short. Anyone living abroad sends documents electronically and gets an appointment that works across the time zones.
Which probate court will later deal with the estate follows the rules on local jurisdiction and not the seat of my office. I tell you early which body that is likely to be.
MORE TOPICS
More on international inheritance law
YOUR QUESTIONS
Frequently asked questions
In principle the inheritance law of the state in which you have your habitual residence at the time of death applies (Article 21 EU Succession Regulation), not the law of your nationality. Anyone moving permanently to Spain will as a rule fall under Spanish inheritance law. Under Article 22 you may choose German inheritance law. The choice has to be declared expressly in a will or a contract of inheritance.
Habitual residence is the actual centre of a person's life, not the registered address. The overall position is assessed: how long and how regularly a person stays in a state, where their family lives. Article 21(2) permits, in exceptional cases, the application of the law of a state with which there was a manifestly closer connection. Nobody should base their planning on that exception.
Through an express declaration in a disposition upon death, that is, in a will or a contract of inheritance. A handwritten will can contain a choice of law; notarial recording is not mandatory but helps with foreign authorities. Powers of attorney, advance directives, letters or an adviser's notes are not sufficient. Only laws of a nationality you hold at the time of the choice or at death can be chosen.
No. The EU Succession Regulation governs inheritance law, not tax. Which state taxes an acquisition follows solely from the tax law of the states involved, and that can lead to taxation in two states. A choice of German inheritance law changes nothing about this. Germany has treaties on avoiding double taxation for inheritance tax with only a few states.
I bill by time; my hourly rate is 280 euros plus 19% VAT. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. The initial consultation is also billed by time. Examining the connecting factor and adding a choice of law to an existing will stays modest. An arrangement involving property in several states does not. Notary costs and the costs of foreign advisers are additional.
Clarify the foreign element before it becomes a problem
If you have assets abroad, are planning a change of residence or hold a will that is older than your move, we will look at the connecting factors together. Advice throughout Germany, by video on request, in German or English.