When a person dies in a foreign country or leaves assets in another country, a conflict of laws may arise among legislations of the countries involved in their succession. Therefore, what is the applicable law?
By way of example, if a German citizen or an American citizen dies in Italy leaving properties or other assets in Italy and in his own country, how to identify which national law is to apply to:
The EU Succession Regulation n. 650/2012 provides standard rules applying in the territory of the European Union, with the exception of Ireland and Denmark, as these Member States did not participate in the adoption of this Regulation, they are not obligated by its provisions and are not subject to its application.
The above-mentioned Regulation aims to simplify and harmonize the rules related to the jurisdiction, applicable law, and recognition of foreign wills and successions within EU member states.
Under its rules law of the State in which the deceased was resident at the time of death applies to the succession.
However, individuals can choose to apply the law of their nationality (the law of the country of their citizenship) to their succession, including for the distribution of assets.
In case the deceased has multiple citizenships, it is possible to choose one of his/her national laws to regulate the succession.
Even the Jurisdiction (where the case will be heard) follows the same rules: the court of the country in which the deceased was resident at the time of death and, if chosen, the court of the deceased’s country of citizenship.
Even if the UE Regulation applies uniformly to all assets regardless of where they are located, local laws may still affect specific procedural matters (e.g., the formalities of a will or the validity of certain dispositions).
The regulation does not apply to countries outside the EU, but its provisions may influence how cross-border successions are handled where one of the countries involved is a non-EU country.
In fact, due to its universal application, the EU Regulation rules not only for citizens of EU member states but also for any other non-EU individual who had a “habitual residence” in an EU Country at the time of death.
As a result, in the absence of an explicit choice of national law, Italian judges and notaries will apply Italian inheritance laws (and therefore the EU Regulation rules) to the succession of both an Italian citizen and an American who was a resident of an EU member state at the time of death.
For example, the inheritance of an American citizen resident in Italy will be subject to the Italian succession law and, for example, to the “quota di legittima” that restricts the testator’s wishes to dispose of their asset freely, when there are children, spouse and other closest relatives.
This article was written by Sara Bocci and Caterina De Carolis.
This article is posted by Mazzeschi Web Content Manager. Should you need any further information, please do not hesitate to contact us at info@mazzeschi.it. Follow us on social media @StudioMazzeschi to receive the latest updates.
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