With cross-border estates the question of the applicable law arises. How the EU Succession Regulation and the habitual residence shape a succession with a connection to Austria.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
If the deceased lived abroad or assets lie in several states, the succession becomes cross-border. The question then arises which law applies and how the handling with a connection to Austria succeeds. The answers lie above all in European succession law.
This article explains the main features of the EU Succession Regulation, the role of the habitual residence and the European Certificate of Succession. It does not replace advice in an individual case and names the Regulation only in cautious main features, but it provides a first orientation.
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The answer sorts which question of international succession law matters first for you.
Under the EU Succession Regulation the applicable law as a rule connects to the last habitual residence of the deceased. If this was abroad, foreign law may be decisive, even where probate proceedings with a connection to Austria are conducted.
This allocation should be examined carefully, as it can also affect the statutory succession.
If accounts or real property lie in several states, the handling is more demanding. The European Certificate of Succession can help to prove the position as heir across borders. The probate proceedings are to be coordinated with the bodies abroad.
An early stocktaking of the assets in the individual states makes the later handling easier.
The EU Succession Regulation allows a choice of law under certain conditions, for instance in favour of the law of nationality. If there is such a choice in the will, it must be examined whether it is valid and what consequences it has for the statutory succession.
Whether the choice of law takes effect should be clarified carefully before further steps.
For many cross-border cases the EU Succession Regulation determines which law is to be applied to the entire estate. As a central connecting factor it as a rule uses the last habitual residence of the deceased. Where this was therefore needs to be clarified carefully.
If the habitual residence was abroad, foreign law may be decisive, even where probate proceedings with a connection to Austria are conducted. This allocation affects the entire handling.
The Regulation allows a choice of law under certain conditions. A person can, for instance, choose the law of their nationality, so that the law of the state of residence does not apply. Such a choice is sensibly made in the will.
Whether a choice of law is valid and what consequences it has for the statutory succession needs careful examination. The scope of a choice can be assessed reliably only in the specific case.
The European Certificate of Succession serves to prove the position as heir in several member states. It eases dealings with banks, registers and authorities abroad, without a separate procedure being needed in each state.
Especially where assets lie in several states, the certificate can simplify the handling considerably. An early stocktaking of the assets per state helps to plan the right steps.
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