In cases of inheritance involving a foreign element, it is the testator’s habitual residence that determines which country’s succession laws are applicable. This is governed by the new EU regulation (Regulation No. 650/2012) concerning succession law.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London - www.grprainer.com/en conclude: Many Germans have moved their main place of residence abroad in their old age, with a finca in Majorca or a cottage in Tuscany becoming their new homes. However, having one’s habitual residence in Spain or Italy could at one time give rise to disputes as to which country’s succession laws applied in inheritance cases. The decisive factor used to be the testator’s nationality in Germany and Italy, and his habitual residence in other countries.
The new EU regulation on succession law came into full force on August 17, 2015 and now provides for a uniform set of rules. In cases of inheritance involving a foreign element, it is the country where the testator habitually resided whose succession laws are applicable. The estate of a German testator whose main place of residence is in Spain will be dealt with according to Spanish succession law, whereas the inheritance passed on by a German testator in Italy shall be governed by Italian succession law etc.
This can have consequences for the heirs due to the substantial differences in the national succession laws of the various countries. It can, for instance, have implications for intestate succession, shares in an inheritance, claims to a compulsory portion, renouncing inheritances as well as the validity of a will. The popular form of will in Germany known as the “Berliner Testament” (Berlin will), in which spouses mutually appoint each other as sole heirs, is not recognised in all of the other countries.
For Germans living abroad, this means that they ought to re-examine and, where appropriate, adjust their last will and testament. It is also possible to determine which successions laws will apply. Regarding Berliner Testaments, it should be noted that changes need to be made by both spouses because unilateral measures are not effective in relation to joint wills.
The EU succession law regulation is thus a source of clarity, but it can also make bequeathing and inheriting more complex. Should issues arise pertaining to a will or contract of inheritance, testators and heirs can turn to lawyers who are competent in the field of succession law.