How wills and inheritance laws work across borders
Key takeaway
EU inheritance rules in participating countries other than Denmark and Ireland generally use the law of the country where the deceased last lived, with a permitted choice of nationality law subject to public policy limits. In Minnesota, for example, a will can satisfy specified local or foreign execution laws, and other states differ.
Research notice: Core authorities include the official Your Europe inheritance guidance, Minnesota statutes and HMRC guidance on grants involving overseas assets. Read the participation limits and conditions alongside each example. Ask an estate attorney in the relevant jurisdiction to confirm document execution, law selection, court authority and administration before acting.
EU succession: law selection, courts and documentation
Read the nationality law answer for the available law choices and their conditions, and the inheritance scope answer for the assets and matters covered. Court selection and succession documentation have their own requirements.
Under the EU inheritance framework, which excludes Denmark and Ireland, heirs usually take a court dispute to the courts of the EU country where the deceased last lived. If the deceased chose nationality law and that nationality is of an EU country, the heirs and all other concerned parties can agree to use that country's courts. All concerned must agree to that court choice. Choosing the law alone does not supply this agreement.
European Certificate of Succession
In participating EU countries, excluding Denmark and Ireland, a European Certificate of Succession provides an alternative to national documentation of status as heir, executor or administrator. Obtain the certificate from a court with power to rule on the inheritance or another competent authority in the same country. The issuing authority keeps the original and issues certified copies valid for six months, which can be extended. The issuing authority can modify or withdraw an inaccurate certificate. Other participating EU countries recognise the certificate without a special procedure. Do not assume recognition outside participating countries.
Will execution, later wills and overseas grants
For a review of multiple wills, use the cross border estate review checklist to gather the documents and asset inventory. Read the complete set of wills together, including their execution history, disposition clauses and express revocation language. For the meaning and legal effect of a governing instrument, see the Minnesota choice of law answer.
Will execution: a Minnesota example
In Minnesota, for example, a will is valid if executed in compliance with the Minnesota statute on will execution, and other states differ. Minnesota also recognises execution complying with the law, at the time of execution, of the place where the testator executed the will. Another alternative is compliance with the law of a place where the testator was domiciled, had an abode or was a national at execution or death. These execution recognition rules establish no recognition, administration or property transfer result abroad.
Later wills: review replacement and supplementation
In Minnesota, for example, a subsequent will can revoke an earlier will or part of it expressly or by inconsistency, and other states differ. Without express revocation, the subsequent will wholly revokes the earlier will by inconsistency if the testator intended replacement rather than supplementation.
Under this Minnesota rule, a subsequent will making a complete disposition of the estate creates a presumption of replacement. Unless rebutted by clear and convincing evidence, that presumption means the earlier will is revoked and only the subsequent will operates at death. A subsequent will that does not make a complete disposition creates a presumption of supplementation. Unless rebutted by clear and convincing evidence, that presumption means the subsequent will revokes the earlier will only to the extent of inconsistency. Both wills then operate at death to the extent they are consistent.
Overseas grants: a limited UK example
HMRC guidance on undertakings for grants on credit involving overseas assets recognises that assets outside the UK may require an application for a grant in the other country. The guidance does not establish another country's requirements or mean that a separate foreign grant is always required.
Foreign estate representatives: a Minnesota procedure
In Minnesota, for example, a domiciliary foreign personal representative may use the filing and notice procedure for local powers only when no local administration, application or petition is pending in Minnesota, and other states differ. The representative must file with a court in a county containing the decedent's property. The filing must include a certified or authenticated copy of the appointment and any official bond, plus notice of an intention to exercise all powers of a local personal representative over Minnesota assets and maintain actions and proceedings in Minnesota.
After this filing, the court administrator must promptly publish notice at estate expense once a week for two consecutive weeks in a legal newspaper in that county. The notice must give the representative's name and address and state the intended exercise of local powers over Minnesota assets and maintenance of actions and proceedings in Minnesota.
Only after 60 days from the required filing may the representative exercise all powers of a local personal representative over Minnesota assets and maintain actions and proceedings in Minnesota, subject to conditions imposed on nonresident parties generally. Exercise of those powers is barred by a written objection filed within those 60 days by a resident creditor of the nonresident decedent. A later application or petition for local administration terminates the foreign representative's authority, although the local court may allow limited powers to preserve the estate.
Federal estate tax: citizen or resident estates
For federal estate tax, a resident decedent is one domiciled in the United States at death. In this definition, the United States includes the states and the District of Columbia. Domicile requires living in a place with no definite present intention of leaving. Residence alone does not establish domicile, and an intended change requires actual removal. The income tax residence classification is separate and does not apply to estate tax. Special territory rules require a separate review. Use the domicile guide for that discussion.
For U.S. citizen or resident decedents, federal estate tax applies to the transfer of the taxable estate. The gross estate can include foreign property to the extent of the decedent's interests and other applicable gross estate inclusion provisions. An applicable death tax convention may affect these rules. Gross estate inclusion alone does not establish tax payable or probate treatment.
Treaty coverage and further tax questions
For treaty relief and foreign tax credit questions, continue to how estate tax treaties and foreign tax credits work. Use that guide for the tax discussion rather than treating an inheritance law choice as a tax calculation.
Use the IRS treaty inventory to identify estate or gift tax coverage, then examine the actual agreement before asserting relief. An income tax treaty's existence alone does not establish a particular estate tax benefit. The inventory identifies Canada's estate tax provisions within the United States and Canada income tax treaty. Ask a tax adviser to examine the agreement for any exemption, credit, property location rule or relief from double taxation.
Take QDOT questions to the qualified domestic trust guide. For foreign trust treatment and further planning topics, return to the cross border estate planning hub.
Common questions
Which state's law decides what a governing instrument means?
In Minnesota, for example, the law of the state selected in a governing instrument determines its meaning and legal effect, unless applying that law is contrary to the elective share provisions, the exempt property and allowance provisions, or any other public policy of Minnesota applicable to the disposition, and other states differ. Use the forced heirship guide for descendants' claims.
Does the EU inheritance framework cover assets wherever they are located?
Yes, under the EU inheritance framework in participating countries other than Denmark and Ireland, the applicable inheritance law governs all movable and immovable assets regardless of location, subject to public policy limits. Its scope includes beneficiaries, disinheritance, reserved shares, restoration of lifetime gifts, transfers of ownership to heirs and the powers of heirs, executors and estate administrators, including conditions for selling property and paying creditors.
Denmark and Ireland do not participate. The authority handling the succession may refuse provisions of chosen nationality law that conflict with its local public policy. The framework does not determine the authority or applicable law for inheritance taxes, civil status, matrimonial or registered partnership property regimes, or company matters. Coverage of assets wherever located does not promise recognition outside participating countries.
Which law can a person with multiple nationalities choose for succession?
Under the EU inheritance guidance, a person with multiple nationalities may choose the law of any of those nationalities, including a country outside the EU, subject to the participation and public policy limits below. The authority usually applies the law of the EU country where the deceased last lived unless nationality law was chosen. Express the choice explicitly and clearly in a will or separate declaration. The will or declaration must meet the requirements of the EU country where the person last lived or the chosen nationality law.
EU inheritance rules do not apply in Denmark and Ireland, whose authorities may disregard the choice. Danish and Irish citizens can use these rules when their inheritance is handled in another participating EU country. The authority handling the succession may refuse provisions of chosen nationality law contrary to its local public policy. Examples include discrimination between heirs based on sex or birth within or outside marriage. Review law selection, court selection and succession documentation separately with counsel.
Resources to check out
- Your Europe: Planning an international inheritance: Official guidance on law selection, inheritance scope and public policy.
- Your Europe: Managing an international inheritance: Official guidance on courts and succession certificates.
- European eJustice: Succession country information: A starting point for country specific questions to discuss with counsel.
- France: Can children be disinherited?: A resource for a separate review of French inheritance questions with local counsel.
- New York: Wills connected to another jurisdiction: A resource for a separate New York property and choice of law review.