Knowledge · Inheriting across the border
Which law of succession applies when two countries are involved?
The question sounds like a legal opinion and usually has a short answer. What matters is where the deceased person last lived — not which passport they held, nor where the heirs live today.
The answer first. What decides is the deceased person’s last habitual residence (Art. 21 EU Succession Regulation), not their nationality. If they last lived in Germany, German succession law governs the estate as a whole — including accounts abroad, and even where the heirs have long been at home elsewhere. And German property law governs the land itself in any case: registration takes place in the German land register.
What „habitual residence" means
What is meant is the actual centre of life at the time of death — where someone really lived, with which ties, over what period. The registered address alone does not decide, and nationality does not decide at all.
In most families the answer is obvious: someone who lived for thirty years in a house in Lower Saxony had their centre of life there. It becomes difficult for people who commuted between two countries, who moved abroad to their children in old age, or who had a winter residence. Then the classification is a question of the individual case — and for that a specialised notary or lawyer is responsible, not we.
The choice of law — and what it cannot do
The Regulation permits a choice of law: the deceased could choose the law of their home state in their will (Art. 22 EU Succession Regulation). Such a choice overrides the residence rule. It cannot, however, set aside tax law — which country levies inheritance tax follows its own rules, and between many states there is no agreement on the matter.
Older wills often contain no express choice; that is not a defect but the normal case. The residence rule then applies, and the matter is as a rule simpler than it feels. What you can do yourself: if you are writing a will and two countries play a part, have the choice of law expressly written in or expressly left out — either is better than silence, because then no one has to interpret it later.
The land always follows German law
A reassurance that surprises many families: the land itself is governed by German property law regardless of everything else. And on death the transfer happens by itself: the estate passes as a whole to the heirs at the moment of death (section 1922 BGB) — without a contract and without registration. The land register is then incorrect and is corrected (section 22 GBO); the entry records what already holds in law. That is the difference from a purchase, where agreement and registration first bring the transfer about.
In practice this means: the community of heirs, the land register and the settlement all stay in their familiar place, in their familiar forms. What reaches across the border are the proofs — the certificate of inheritance (section 2353 BGB) and the European Certificate of Succession. And the Certificate is not a one-way street: it takes effect in all member states, including the one that issued it, and a Certificate issued in another member state suffices as proof of inheritance for the German land registry (section 35 GBO). Which papers to obtain, and in which order, is set out in Documents and translations.
- My mother held a Polish passport and lived in Germany. Which law applies?
- Under the residence rule, German law — the passport is irrelevant unless the will contains a choice of law. Whether such a choice exists is checked by a notary from the will; without a will the question does not arise.
- We heirs live abroad. Does that change anything?
- Not for the applicable succession law — what counts is the deceased person, not the heirs. For the practical handling it does: signatures from afar, certified translations and a European Certificate of Succession take time, and that time has to be planned for.
- Can two countries both levy inheritance tax?
- Yes, that happens — tax jurisdiction follows its own rules, and between many states there is no agreement on the matter. This question belongs to a tax adviser with cross-border experience, and it should be asked early, not after the estate has been settled.
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