International successions: which law applies?

In order to determine the applicable law, a distinction must be made between successions in the European Union (EU) and outside the EU. 

Within the EU

The default applicable law is that of the State in which the deceased had his last residence before his death (article 21 of the EU "Inheritance" Regulation), whether or not this State is a member of the EU.

This point can pose difficulties if the deceased divided his time between several States, especially when he did so on a relatively equal basis: in this case, it can be a challenge to determine his residence. It will then be studied in which State the deceased had the "center of his interests": real estate, a job, bank accounts...

To avoid these complications, it is in the interests of the deceased and his heirs to anticipate his inheritance. The deceased has the option of choosing the law that will be applied to their estate: rather than their country of residence, the law of their country of nationality will apply (Article 22 of the EU Succession Regulation). If the deceased has more than one nationality, they can choose which of these will apply. Note here: this choice must be clearly expressed, in a will, alongside the deceased's other testamentary dispositions.

Whether chosen or determined by default, the applicable law governs the entire succession: who is entitled to inherit and how much? What proportion of the estate can the deceased dispose of freely (the available portion)? How should partition be formalized? etc.

Outside the EU

In this case, the law of the deceased's country of habitual residence generally applies, without the deceased being able to make a choice of law. However, there may be international conventions between certain States that regulate this question, which should be checked according to the situation at play. 

The law determined to be applicable must be used by all parties involved in the settlement of the estate: the notary, the lawyer, and possibly the judge, even if the law is not that of the country in which they practice. For a point on determining the competent judge, see the next post.

If you have specific questions regarding the applicable law to an estate or other aspects of inheritance law, do not hesitate to consult our law firm.