When someone passes abroad or has assets outside of Germany to be inherited, the question arises which law governs. We have already assessed when a testament is formally valid in these cases.
This article shall answer the question which law determines the contents and the consequences thereof of an estate.
Different validity, different law
After assessing if a testament is formally valid, it is still to determine what law governs. If a testament is found to be valid in its form due to Canadian law, this doesn’t mean Canadian law is also applicable to the remainder of the estate questions.
This can lead to a different standard regarding form and the applicable law. For all estates after August 17th, 2015, the applicable law follows the Regulation (EU) No. 650 / 2012 Of The European Parliament And Of The Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, short: European Succession Regulation. Even though this Regulation is established by the European Union which Canada and the USA are obviously not a part of, their legal systems can still govern according to the Regulation.
Principle: Place of last domicile
According to the general principle, the law of the state governs in which the deceased last resided. There can be exceptions to this principle depending on the circumstances, especially depending on the precise living situation of the deceased or the type of assets. For example, the law of the last country of domicile does not apply when the deceased clearly had a closer relationship to another state.
Exception: Testate probate
A testate probate can be established through a last will or an inheritance contract.
Last wills follow the law which would have applied at the time it was written according to the Succession Regulation. The same goes for inheritance contracts with one exception: if the contract regulates multiple people’s estates, it must be valid according to all legal systems that apply according to the Succession Regulation.
Special case: Choice of law
The application of different laws may be conquered by choosing the law that shall apply to one’s estate. This may be done when one is a citizen of the state whose law is to be chosen. The choice needs to be made clearly within the will. If the deceased had multiple citizenships, only one law can be chosen. The choice must comply with the form required by the law chosen.
Special case: Split probate
The situation may be different when the probate is split. This means that different assets are subjects to different laws. This can especially occur when the general rule of the place of domicile governs but the applicable foreign law establishes a “redirection” to another jurisdiction for certain assets. This would be relevant according to the Succession Regulation.
This can especially affect applications for certificates of inheritance or executorship as those can only be issued in the exact way that they were requested with the competent probate court.
To carefully and competently establish, what law applies and what different particuliarity needs to be accounted for, we at SNP Canada Ltd. Are happy to assist you with our 20 year experience in handling cross-border estates.
