What factors cause the succession law of the jurisdiction to apply on the death of an individual?

Private Client (2nd edition)

Israel Small Flag Israel

Israeli courts have jurisdiction over the inheritance of any individual who was a resident of Israel at the time of his death or has left real estate and other assets situated in Israel (such as movable assets that are located in Israel and IP that is registered in Israel).

Ireland Small Flag Ireland

In accordance with Irish private international law rules concerning succession law, the devolution of the estate of a deceased person, will be by the law of the situs of the property in respect of immovable property and by The law of the domicile of the deceased person, in respect of movable property.

Belgium Small Flag Belgium

According to the European Succession Regulation 650/2012 of 4 July 2012 by which Belgium is bound, the law applicable to one’s succession as a whole is the law of the state in which the deceased had his habitual residence at the time of his death. A person may choose for the law of his nationality to govern his succession as a whole, provided he possesses that nationality at the time of making that choice or at the time of his death.

United States Small Flag United States

Two main factors will determine which state’s succession or intestacy laws control the disposition of a decedent’s estate: (1) the property classification, or type, of each item of property, and (2) the state of a person’s domicile at the time of death.

There are generally three types of property: (1) real estate; (2) intangible personal property (such as cash and stock); and (3) tangible personal property.

Domicile is the geographic location of a person’s permanent legal residence. A person’s domicile is the place he or she intends to use as his or her dwelling for an indefinite period of time. It is the place to which the person intends to return. A person’s intention regarding domicile is determined by his or her actions, such as where the person votes and where he or she pays state income taxes. An individual can only have one domicile.

The law of a person’s domicile generally determines the disposition of intangible and tangible personal property, even if it is located in different states. The disposition of real estate, however, is controlled by the state in which it is located. Accordingly, ancillary probate or administration will be required if a decedent dies owning real property outside of his or her state of domicile.

Cyprus Small Flag Cyprus

Cyprus law regulates the succession to the estate of all persons whose domicile at the time of death is Cyprus, irrespective of nationality or residence, as well as the succession to any immoveable property located in Cyprus, regardless of the domicile nationality or residence of the owner. For deaths after 17 August 2015, the EU Succession Regulation applies, and a valid choice of law in favour of another EU member state under article 22 of the regulation will prevail.

Austria Small Flag Austria

Relevant factor of the succession law of the jurisdiction is the testator’s citizenship and habitual residence.

Given the Austrian citizenship and a habitual residence in Austria then Austrian succession law would apply.

In case of an Austrian citizenship but habitual residence abroad the succession law of the habitual residence country would apply (applicable for all EU member states except Denmark, UK and Ireland). If a testator will prevent this effect, he/she has to state expressively the applicability of Austrian law.

Austrian jurisdiction applies to the movable and immovable property located in Austria but does not apply to immovable property located abroad. In case a testator without Austrian citizenship and without habitual residence in Austria owns immovable property in Austria a succession procedure (following the applicable law) would take place in Austria dealing only with an immovable property.

Bulgaria Small Flag Bulgaria

In terms of the Bulgarian International Private Law Code three factors could potentially trigger the application of succession laws on the death of an individual.

Firstly, this the habitual residence of the decedent. Succession of movables is governed by the laws of the state in which the deceased had his/her habitual residence at the time of death. Habitual residence as used in the Code is an independent concept of the concept of tax residence.

The second factor is the situs of immovable property. Succession of immovable property is governed by the laws of the country in which the immovable property is situated.

Finally, a person is entitled to select the law of the country of his/her nationality as the law governing his/her succession. The election is made by a will and must not effect adversely any forced shares designated by the rules of forced heirship under the law that would apply normally.

Argentina Small Flag Argentina

The last domicile of the deceased person and the location of the immovable property (if any), determines the territorial jurisdiction.

Therefore, if the decedent was domiciled in Argentina or if the decedent was domiciled abroad leaving immovable property located in Argentina, Argentine rules will apply and a court-based procedure (proceso sucesorio) must be followed (section 2643 CCC).

The applicable law, is determined by the last domicile of the decedent. However, an exception applies if the deceased was last domiciled in a foreign country and their estate comprises immovable property located in Argentina. In this case, the applicable law would be the CCC as established in section 2644 of the CCC. As mentioned in Question 12 above, this law governs:

  • The determination of the decedent's heirs.
  • Any succession rights arising by reason of death.
  • The validity of testamentary dispositions.

Monaco Small Flag Monaco

Under Monaco law, the place of the opening of the succession is the domicile of the deceased. Monegasque courts have jurisdiction to rule on successions opened on the territory of Monaco or when an immoveable asset belonging to the estate is located in Monaco.

The estate of a foreigner resident in Monaco is subject to Monaco private international law rules.

Monegasque law will apply to the estate of an individual domiciled in Monaco at the time of his/her death, unless the deceased has expressly elected his/her national law to govern the entirety of his/her estate.

Italy Small Flag Italy

Conflicts of law rules are regulated by the EU Regulation No. 650/2012 of 4 July 2012 (the EU Succession Regulation). Habitual residence in Italy would generally lead to the application of Italian succession law. If the habitual residence of the individual is located outside of Italy, Italian succession law may still be applicable due to a renvoi to Italian succession law (see 14). In both cases, the possibility to elect for a foreign law of nationality is granted.

Bermuda Small Flag Bermuda

The Succession Act 1984 sets out what happens to assets located in Bermuda in the absence of a will under the rules of intestacy (see the response to question 16 below for more details).

United Kingdom Small Flag United Kingdom

14.1 The application of English succession laws depends on the deceased's last domicile (§1.9) and on the location of any immovable property (i.e. real property).

14.2 Succession to movable property (e.g. cash, shares, chattels) is, as a matter of English law, governed by the laws of the deceased's last domicile (§1.9).

14.3 Succession to immovable property is, as a matter of English law, governed by the laws of the jurisdiction in which that property is located. Therefore, according to English law, succession to land owned in France is governed by the succession laws of France.

14.4 The above position may be altered in accordance with the private international laws of any non English jurisdiction to which English law refers the succession, including the provisions of the European Succession Regulation (§15.2) where they apply.

Colombia Small Flag Colombia

The following factors cause Colombian succession law to apply on the death of an individual:

  1. The death of nationals or foreigners who die with their last residence in Colombia; and/or
  2. Colombian situs assets.

Cayman Islands Small Flag Cayman Islands

Please see the answer to question 12 above.

Shares in the Cayman Islands are considered immovable property by the Succession Law (2006 Revision). Personal chattels or immovable property do not include "…any chattels used at the death of the intestate for business purposes, nor money nor securities for money" (Section 2 of the Succession Law). Subject to that, the extent of which property will be regarded as "movable" or "immovable" will be determined by applying principles similar to those which apply by virtue of English common law.

A person's domicile as a matter of Cayman Islands law will be determined according to the relevant principles of English common law.

If an issue of succession is referred to the laws of another jurisdiction the doctrine of renvoi would be applicable to the same extent to which it would were the referral to be one made by English law.

Germany Small Flag Germany

According to the EU Succession Regulation the inheritance law applicable to an individual’s succession is determined by his last habitual residence if (1.) the deceased is not manifestly more closely connected to another jurisdiction and (2.) if he has not opted for the succession law of his citizenship.

Singapore Small Flag Singapore

Generally, under Singapore law, succession of movable assets (such as bank accounts) is determined by the law of the testator’s domicile at the time of demise, while succession of immovable assets is governed by the law of the jurisdiction where the immovable assets are located.

Accordingly, Singapore law applies to the succession of –

  1. Testators dying domiciled in Singapore in respect of their movable assets;
  2. Testators dying anywhere in respect of their Singapore-sited immovable assets.

Portugal Small Flag Portugal

As European regulations are directly binding for Portugal, Regulation (EU) no. 650/2012, of July 4th, 2012 concerning succession related matters, is applicable. Thus, at the light of the foreseen in article 21, no. 1 of Regulation no. 650/2012, which contains the general rule of determination of the law applicable to the succession, “the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death”.

Regarding non-European States, it is important to note that, for Portuguese civil law purposes, the last place of the individual’s habitual residence is also relevant to determine the place where the succession should be managed.

France Small Flag France

Since August 2015, under the EU Succession Regulation 650/2012, the law applicable to the succession, including immovable and movable assets, is the law of the country in which the deceased has his habitual residence at the time of death. This rule applies whether or not the deceased is a member of the EU.

The EU Succession Regulation 650/2012 allows, however, a person to choose the law of country whose nationality he/she possesses at the time of making the choice, or at the time of death, as the law to govern his/her succession. A person with several nationalities can choose the law of any of the countries whose nationality he/she possesses. As a consequence, when a person who is not a French national dies having his/her last habitual residence in France, the French “notaire” should check the choice made during his/her life. If no choice has been made, the French “notaire” should apply the French law of succession. If a choice has been made, the French “notaire” should apply the law of succession chosen by the deceased.

Liechtenstein Small Flag Liechtenstein

As a basic principle, any legal succession upon death is determined by the decedent’s personal statute at the time of death (Art. 29 (1) Act on International Private Law). The personal statute is the law of the country of which the person concerned is a national, and if a person has no nationality, the law of the country of his or her habitual residence ("gewöhnlicher Aufenthalt"; actual place of living) (Art. 10 Act on International Private Law). Thus, Liechtenstein law is applicable if the decedent was a national of Liechtenstein.

Furthermore, Liechtenstein law is generally applicable when probate proceedings take place in Liechtenstein (Art. 29 (2) Act on International Private Law). If the decedent, however, was a foreign national or if he or she was a Liechtenstein national but living abroad, he or she can choose the applicable succession law in a will or a contract of inheritance. The only options are the succession law of his nationality or of his last domicile.

With regard to compulsory shares against a third party (e.g. a foundation) special rules apply (Art. 29 (5) IPRG). The compulsory share can only be successfully asserted against a third party in a Liechtenstein court if the applicable succession law as well as the law applicable to the acquisition of the assets through the third party provide for the compulsory share.

Mexico Small Flag Mexico

Our legal system does not expressly indicate in which cases the Mexican law may apply to successions that have an international vocation (that is, those that have factors or points of connection with the outside), when the deceased had not granted a will to the date of his death.

Notwithstanding the above, Article 13 of the Mexican Federal Civil Code, provides the specific rules for determining the applicable law should the specific act not be otherwise expressly regulated.

In accordance with section II of the aforementioned legal norm, the status and capacity of individuals is governed by the Law of the place of his domicile, while for its part, section III provides that the constitution, regime and termination of real rights over real estate, as well as leases and temporary use of such property, and personal property, will be governed by the right of the place of their location, even if their owners are foreigners.

Based on the foregoing, the Mexican succession Law would be applicable to a foreigner provided that at the time of death he has its domicile in national territory, or when the real or personal property of that person is located in national territory at the time of death (in which case Mexican Law will only apply with respect to said assets).

It should be noted that article 29 of the Mexican Federal Civil Code, considers as the domicile of a natural person: (i) the place where he habitually resides; in the absence of this, (ii) the place of the main center of its business; in the absence of these (iii) the place where they simply reside; and in the absence of all these (iv) the place where they are. It is presumed that a person habitually resides in a place when he remains in the place for more than six months.

Finally, with regard to the competent courts to hear the hereditary trial (if necessary), section VI of Article 24 of the Mexican Code of Civil Procedures provides that it is competent judge: (i) the one of the place where the author of the succession was domiciled at the time of his death; (ii) in the absence of domicile, the one of the place of the location of the estate assets; (iii) and in the absence of both, the place of death of the author of the inheritance.

Brazil Small Flag Brazil

According to Brazilian law, as a general rule, the succession will be governed by the laws of the deceased's last domicile.

As an exception to the rule, the Brazilian succession law will be applied if this is more beneficial to the Brazilian spouse and children.

Regardless of applicable law, the probate process should take place in Brazil to all Brazilian assets.

For all assets that a Brazilian resident has abroad, the probate process should take place on that jurisdiction.

Updated: May 30, 2019