Cross-border inheritance: which country's law applies

Which country's law governs the succession?

Unless the Regulation provides otherwise, the succession as a whole is governed by the law of the state in which the deceased had their habitual residence at the time of death (Pärimismäärus art 21 lg 1) [2]. The general rule is therefore based neither on the deceased's nationality nor on where the property is. By way of exception, the law of another state applies if it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with that other state (Pärimismäärus art 21 lg 2) [2].

The applicable law governs in particular (Pärimismäärus art 23 lg 2) [7]:

• who the heirs are and what their shares are, including the succession rights of the surviving spouse or partner;
• the conditions and effects of accepting or waiving the succession;
• liability for the debts under the succession;
• the reserved share and other restrictions on the freedom to dispose of property upon death;
• the sharing-out of the estate.

The Regulation does not apply to revenue, customs or administrative matters (Pärimismäärus art 1 lg 1) [8]. Also excluded from its scope are matrimonial property regimes, the nature of rights in rem and the recording of rights in a register of immovable or movable property (Pärimismäärus art 1 lg 2) [8].

Can a will choose which country's law applies?

Yes. A person may choose as the law governing their succession as a whole the law of the state whose nationality they possess at the time of making the choice or at the time of death; a person with several nationalities may choose the law of any of those states (Pärimismäärus art 22 lg 1) [3]. The choice must be made expressly in a declaration in the form of a disposition of property upon death or be demonstrated by the terms of such a disposition (Pärimismäärus art 22 lg 2) [3]. A disposition of property upon death is a will, a joint will or an agreement as to succession (Pärimismäärus art 3 lg 1 p d) [9]. Any modification or revocation of the choice must meet the formal requirements for modifying or revoking a disposition of property upon death (Pärimismäärus art 22 lg 4) [3].

The admissibility and substantive validity of a will are governed by the law that would have applied to the testator's succession had they died on the day the disposition was made (Pärimismäärus art 24 lg 1) [10]. A written will is formally valid if it complies with the formal requirements of either the state where it was made; or a state whose nationality the testator possessed, or in which they were domiciled or had their habitual residence, at the time the disposition was made or at the time of death; or, for immovable property, the state where the property is located (Pärimismäärus art 27 lg 1) [11]. Member states that are parties to the Hague Convention of 5 October 1961 on the law applicable to the form of testamentary dispositions continue to apply that Convention instead of Article 27 to the formal validity of wills, including joint wills (Pärimismäärus art 75 lg 1) [12].

Where is the succession handled?

The courts of the member state in which the deceased had their habitual residence at the time of death have jurisdiction to rule on the succession as a whole (Pärimismäärus art 4) [4]. If the deceased's habitual residence was not in a member state, the courts of the member state in which assets of the estate are located have jurisdiction if the deceased had the nationality of that state at the time of death or, failing that, if they had their previous habitual residence there and not more than five years have passed since that habitual residence changed by the time the court is seised (Pärimismäärus art 10 lg 1) [13]. If the deceased chose the law of a member state, the parties concerned may agree in writing that the courts of that member state have exclusive jurisdiction to rule on any succession matter (Pärimismäärus art 5 lg 1 ja 2) [14].

In Estonia, succession proceedings are conducted by a notary. An Estonian notary conducts them if, under the Regulation, the proceedings must take place in Estonia; if the proceedings fall outside the Regulation, the rules of the Law of Succession Act (pärimisseadus, PärS) on the deceased's last residence and on property in Estonia apply (PärS § 165 lg 2, 3 ja 3¹) [15]. The Private International Law Act (rahvusvahelise eraõiguse seadus, REÕS) applies only to the extent that the Succession Regulation does not provide otherwise (REÕS § 1 lg 2 p 4) [16].

What is the European Certificate of Succession?

The European Certificate of Succession is issued for use in another member state (Pärimismäärus art 62 lg 1) [5]. It is intended for heirs, legatees with direct rights in the succession, executors of wills and administrators of the estate who need to invoke their status or exercise their rights or powers in another member state (Pärimismäärus art 63 lg 1) [17]. Using the certificate is not mandatory, and it does not replace internal documents used for similar purposes in the member states (Pärimismäärus art 62 lg 2 ja 3) [5].

The certificate is issued on application in the member state whose courts have jurisdiction over the succession (Pärimismäärus art 64; Pärimismäärus art 65 lg 1) [18] [19]; in Estonia, the European Certificate of Succession is certified by a notary (PärS § 171 lg 1¹) [20]. The certificate produces its effects in all member states without any special procedure, and it is a valid document for recording succession property in the relevant register of a member state (Pärimismäärus art 69 lg 1 ja 5) [6]; the recording itself, including the legal requirements for it, nevertheless remains outside the Regulation's scope (Pärimismäärus art 1 lg 2 p l) [8]. The applicant receives certified copies of the certificate, valid for six months (in exceptional, duly justified cases the issuing authority may decide on a longer period); after that, an extension of the validity period or a new certified copy must be requested (Pärimismäärus art 70 lg 1 ja 3) [21].

What the law says

• „Käesolevat määrust kohaldatakse 17. augustil 2015 või hiljem surnud isikute vara pärimisele.“ [1] (translation: this Regulation applies to the succession of persons who die on or after 17 August 2015; Pärimismäärus art 83 lg 1) – earlier successions are not covered.
• „Isik võib pärimisasjale kui tervikule kohaldatavaks õiguseks valida selle riigi õiguse, mille kodanik ta on valiku tegemise ajal või surma hetkel.“ [3] (translation: a person may choose as the law to govern their succession as a whole the law of the state whose nationality they possess at the time of making the choice or at the time of death; Pärimismäärus art 22 lg 1) – the choice is the law of a nationality.
• „Tunnistuse kasutamine ei ole kohustuslik.“ [5] (translation: the use of the certificate is not mandatory; Pärimismäärus art 62 lg 2) – the certificate does not replace internal documents (Pärimismäärus art 62 lg 3) [5].
• „Tunnistusel on õiguslik toime kõikides liikmesriikides ilma ühegi erimenetluseta.“ [6] (translation: the certificate produces its effects in all member states without any special procedure; Pärimismäärus art 69 lg 1) – it need not be separately recognised in another member state.
• „Käesolevas määruses osutatud riigi õiguse sätte kohaldamisest võib keelduda üksnes siis, kui selle kohaldamine on ilmselgelt vastuolus kohtu asukohariigi avaliku korraga“ [22] (translation: the application of a provision of the law of a state specified by this Regulation may be refused only if it is manifestly incompatible with the public policy of the forum; Pärimismäärus art 35) – setting foreign law aside is the exception.
• „Välisriigis koostatud pärimistunnistust tunnustatakse Eestis Euroopa Parlamendi ja nõukogu määruse (EL) nr 650/2012 kohaselt.“ [15] (translation: a certificate of succession issued abroad is recognised in Estonia in accordance with Regulation (EU) No 650/2012 of the European Parliament and of the Council; PärS § 165 lg 4).

What to do

1. Find out where the deceased had their habitual residence at the time of death and whether they chose the applicable law in a will – this decides which country's law governs the succession (Pärimismäärus art 21 lg 1; Pärimismäärus art 22 lg 2) [2] [3].
2. Check the Estonian succession register: anyone may consult its data once the death of the deceased has been proven (PärS § 179 lg 1) [23].
3. In Estonia, succession proceedings are opened by an heir, a creditor of the deceased, a legatee or another person with rights in the estate, by filing an application certified by a notary with the notary (PärS § 166 lg 1) [24].
4. If the estate includes property in several member states, you may apply for a European Certificate of Succession; attach the originals or copies of the relevant documents (Pärimismäärus art 65 lg 1 ja 3) [19].
5. If you wish to decide the law of your own succession, choose the law of your nationality expressly in a will or an agreement as to succession (Pärimismäärus art 22 lg 1 ja 2) [3].
6. The Regulation does not cover tax matters (Pärimismäärus art 1 lg 1) [8] – check them separately under the law of each state concerned.

Frequently asked questions

An Estonian citizen lived and died in another member state. Does Estonian law apply to the succession?

Usually not: the law of the state of their habitual residence at the time of death applies (Pärimismäärus art 21 lg 1) [2]. Estonian law applies if they chose it in a disposition of property upon death (Pärimismäärus art 22 lg 1 ja 2) [3] or if, at the time of death, they were manifestly more closely connected with Estonia (Pärimismäärus art 21 lg 2) [2].

Does a will made before 17 August 2015 remain valid?

If the deceased died on or after 17 August 2015, a disposition of property upon death made before that date is admissible and valid in substance and form if it meets the conditions of Chapter III of the Regulation, or if it was valid under the rules of private international law in force at the time it was made in the state of the deceased's habitual residence, in any state whose nationality the deceased possessed, or in the member state of the authority dealing with the succession (Pärimismäärus art 83 lg 3) [1]. If the will was made under the law the deceased could have chosen under the Regulation, that law is deemed chosen (Pärimismäärus art 83 lg 4) [1].

What if the deceased's habitual residence was not in a member state?

The courts of the member state where assets of the estate are located may still rule on the succession if the deceased had the nationality of that state at the time of death or, failing that, if their previous habitual residence was there and not more than five years have passed since it changed by the time the court is seised (Pärimismäärus art 10 lg 1) [13]; otherwise, their jurisdiction covers only the assets located in that state (Pärimismäärus art 10 lg 2) [13]. The law specified by the Regulation applies even if it is not the law of a member state (Pärimismäärus art 20) [25].

Is a foreign certificate of succession recognised in Estonia?

Where the Succession Regulation applies, it is recognised in Estonia in accordance with the Regulation (PärS § 165 lg 4) [15]. Where the Regulation does not apply, it is recognised in Estonia if the procedure for issuing it and its legal meaning are comparable to an Estonian certificate of succession; recognition is decided by Harju County Court (Harju Maakohus) (PärS § 165 lg 4) [15].

Does the Regulation also decide how spouses' joint property is divided?

No – matrimonial property regimes are excluded from the Regulation's scope (Pärimismäärus art 1 lg 2 p d) [8]. The law applicable to the succession does, however, determine the succession rights of the surviving spouse or partner (Pärimismäärus art 23 lg 2 p b) [7].