1. What are international successions?
International successions involve situations where individuals or assets span multiple countries. These include cases where a deceased person resided in a country different from their origin, owned assets in multiple countries, or had heirs residing in a country other than where the deceased lived.
International successions outside the EU refer to successions involving non-European Union countries.
These types of successions often present more challenges than domestic ones, primarily concerning the determination of the applicable law and jurisdictional authority.
2. Criteria for determining the applicable law in international successions
Each country has its own private international law governing this matter. Private international law in each country identifies the “substantive law” to be applied. Substantive law refers to the legal provisions of the country designated by private international law as applicable to a specific relationship.
In Italy, Law No. 218 of May 31, 1995, governs this area. Under Article 46 of this law, the criterion for identifying the substantive law applicable to an international succession is the nationality of the deceased.
However, addressing the need for uniformity prompted by increased mobility of individuals and assets, Regulation (EU) No. 650/2012 of July 4, 2012, came into effect on August 17, 2015. Applicable to successions opened from that date onward, its provisions constitute the unified private international law governing successions due to death across all EU member states (excluding the United Kingdom, Ireland, and Denmark, which continue to use their domestic private international law rules).
Regulation No. 650/2012 establishes the EU’s private international law framework for successions. It does not contain the substantive rules for inheritance but instead determines the country whose law will govern a given succession.
In Italy, this Regulation introduced a significant shift in the connecting factor.
Specifically, Regulation No. 650/2012 provides that the law applicable to an entire succession is that of the state where the deceased had their habitual residence at the time of death (Article 21), regardless of whether that state is within or outside the EU.
All factual elements, such as the duration and regularity of residence in the state and its underlying reasons, are considered. This criterion also determines the competent judicial authority for disputes concerning the succession (Article 4 of the Regulation).
This new criterion of habitual residence replaces the traditional nationality criterion (Article 46 of Law No. 218/1995). However, a succession may still be governed by the national law of the deceased if explicitly chosen.
The Regulation allows the testator to designate the law of the state of their nationality, either at the time of the choice or at the time of death, to govern their entire succession (Article 22).
The applicable law to a succession is of paramount importance. It governs the inheritance process in the absence of a will (intestate succession), the rights of reserved heirs under a will (necessary succession), the validity of succession agreements, and many other aspects often regulated differently across jurisdictions. These differences significantly impact the distribution of the inheritance.
A clear understanding of the applicable law enables effective succession planning under a predictable and comprehensive legal framework, covering all aspects of an international succession, regardless of the nature of the inherited assets (movable or immovable) or their location (as expressly stated in Recitals 7 and 37).
Article 75 of the Regulation preserves the application of any pre-existing bilateral or multilateral international private law conventions that a state was a party to at the time the new EU rules came into force.
Fiscal matters, such as inheritance taxes, marital property regimes, or the division of company shares, are not governed by EU legislation. Instead, bilateral or multilateral agreements between the individual countries involved apply, where such agreements exist.
3. Succession management tools
There are specific tools to manage international successions effectively:
- European Certificate of Succession (valid only for EU successions): this document is issued by the competent authority for succession proceedings. It allows heirs, legatees, executors of wills, and administrators of estates to prove their status and exercise their rights and powers under the law in other member states.
- International Will: this is a specific form of will that is governed by the 1973 Washington Convention. It produces effects internationally regardless of the location of the assets, the nationality, domicile, or residence of the testator. For further details, refer to the article on international wills.
4. Dualistic system (brief mention)
Lastly, the Sezioni Unite of the Italian Supreme Court of Justice (Court of Cassation) addressed international hereditary successions and private international law conflict norms.
In its judgment of February 5, 2021 (No. 2867), the Court affirmed that when the national law governing a transnational succession applies the law of the deceased’s domicile to movable assets but refers immovable assets back to Italian law, two separate successions are created, with distinct asset groups governed by different rules.