Cross-border successions

Posted on 12 May 2017

The European Union adopted a Succession Regulation (EU) No 650/2012 in order to make cross-border successions easier to plan and manage. However, Ireland, Denmark and UK do not participate in the abovementioned EU regulation and they are considered as third countries. This EU Regulation applies as of 17 August 2015 which means that its rules apply to the succession of persons who die on or after 17 August 2015.

What is the meaning of cross-border succession?

When a succession has elements from different countries as for example, elements from different countries arise if a person drafting a will lives in a country other than that of his origin, owns assets in several countries or his future heirs live in a different country.

Which law will usually apply to a cross-border succession?

It is necessary to know which national law will apply to the succession as this law will determine the most important elements of the succession. For the purposes of a cross-border succession, there is only one applicable law and this is determined by the country where the deceased has his last habitual residence at the time of his death. It is worth noting that the country of habitual residence is the country with which the deceased had a close and stable connection. In each particular case, this country will be decided by the authority dealing with the succession.

The following factors determine the country of the deceased’s last habitual residence:

  • the duration and frequency of the deceased’s stay in a given county
  • the conditions and reasons for the stay of the deceased in a given country
  • in which country the deceased’s family and social life are located
  • the country where the deceased had most of his assets
  • the nationality of the deceased

For example X from Germany went to France for a two- year project. He died in France. His family continues to live in Germany. The authority dealing with the succession considers that X had his last habitual residence in Germany because his family and his main house are in Germany, he intended to go back to Germany on completion of his project in France and therefore German law will apply to X’s succession.

It is worth noting that there are exceptions to the general rule. If the facts of the particular case indicate that the deceased was clearly more closely connected with a country other than the country of his habitual residence, then the law of that other country will apply to the succession. For example if the deceased had moved to the country of his last habitual residence shortly before his death.

Is it possible for someone to choose the law that will apply to his succession?

Generally, the law of the country where the deceased had his last habitual residence will apply on his succession. However, a person can choose the law of his country of nationality that should apply to his succession. The country whose law is chosen can be an EU Member State or a non-EU country.

In a case where the deceased has chosen the law of his country of nationality which is an EU Member State to apply on his succession then the interested parties are able to agree that the Court of his EU Member State of nationality will have an exclusive jurisdiction in respect of his succession.

However if the deceased has chosen the law of his nationality which is a non EU country but he had his last habitual residence at the time of his death in an EU Member State then the law of the non EU country will be applied by the Court authorities of the EU Member State. In other words, the applicable law is determined by the law of his country of nationality (non EU country) and the jurisdiction belongs to the EU Member State where the deceased had his last habitual residence.

For example if the deceased who is Russian has chosen Russian law (third country) to apply to his succession but he has habitual residence in Cyprus (EU Member State) therefore Courts of Cyprus will have the jurisdiction to deal with his succession applying Russian law. However in practice we can argue that it is more appropriate for the chosen law of one country to be applied by the courts of the same country because the judges and lawyers will have the knowledge of the particular chosen law.

At this point it is important to note that Court decisions or notarial documents dealing with a succession matter issued in one EU Member State could have an effect on another EU Member State. Also under the Succession Regulation, heirs as well as legatees, the executors of a will and the administrators of the estate of the deceased can request the European Certificate of Succession which is an EU document that will enable them to prove their status and exercise their rights in any other EU Member State.

The EU Regulation aims to determine which EU Member State’s authorities will deal with a cross- border succession and which national law will apply to that succession. As a consequence, a citizen or a testator (the person who makes a will) can plan their succession and heirs no longer need to deal with several national laws and authorities.