The recent European legislation (EU Reg. n. 650/2012) in force since 17 August 2015 can be considered an epochal turning point in the field of law applicable to the successions of citizens of the European Union states.
Until the new EU Reg. n. 650/2012, many European countries (Italy, Austria, Germany, Greece, Spain) applied the principle of citizenship of the deceased to inheritances.
Therefore, the succession of an Italian citizen was regulated by Italian law, and often in the case in which the Italian citizen was resident abroad and had movable or immovable property in Italy, a dispute arose regarding which law was applicable to the succession, whether Italian law or that of the State of residence, with often notable consequences if one considers that the legitimate right was recognized by some European countries and not by others.
According to the previously applicable Italian law, the succession of the Italian citizen residing abroad was regulated by Italian law; However, the Italian citizen residing abroad had the right to draw up a will and declare in the will that the succession would be regulated by the State in which he resided; however, even if the citizen had chosen non-Italian law, the rights that Italian law attributed to legitimate residents in Italy remained intact.
The situation has drastically changed since 1 August 2015, for Italian citizens residing abroad.
From 17 August 2015, the law of nationality, i.e. the Italian one, will no longer apply to the succession of an Italian citizen residing in EU countries, but rather the law of the country of residence.
Therefore, if the Italian citizen resides in Germany, and has not made a will, the succession will be regulated by the law of the country of residence, and therefore by the law of Germany, and this also for all those assets of the deceased, whether immovable or movable that are found outside Germany (for example in Italy).
However, the EU Regulation, mentioned above, allows the citizen residing in an EU country other than that of his nationality, to choose (with an express declaration in the will) whether the law of nationality (even of a non-member state) regulates his succession. part of the EU) or the law of the country of residence.
The choice of the law that will regulate the succession is a choice of the utmost importance, and therefore the drafting of the will is of the utmost importance.
Choosing in your will to apply the law of one country rather than that of another can have significant consequences.
For example in matters of legitimate right, the so-called hereditary reserve.
In Belgium, the surviving spouse is only entitled to the usufruct of the deceased's personal assets; in Spain the surviving spouse has only the usufruct on a share of the inheritance, in England the spouse or children have no intestate rights.
The art. 23 of the aforementioned EU Regulation, provides that the chosen law regulates the entire succession also with regard to:
a)Â the causes, time and place of the opening of the succession;
b) the identification of the beneficiaries and their shares;
c) the ability to succeed;
d) disinheritance and unworthiness;
e) the division of the inheritance
The art. 25 regulates inheritance agreements and art. 28 regulates the formal validity of acceptance of inheritance and renunciation.
The art. 62 establishes the European succession certificate.
For these considerations, succession planning is important for Italian citizens residing abroad and for citizens of EU or non-EU countries residing in Italy and must be taken care of and considered in every aspect.
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Milano, April 4th 2016.
Avv. Giovanni Babino
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