In this essay we will briefly focus on the issues to be faced when an EU citizen lives in a country other than the one of which he/she is a citizen and wants to dispose of his assets after his death. 

We will review the matter from the Italian perspective, but the general principles should generally  apply to the other EU countries, because the matter is governed by the European Regulation no.650/2012, under which (article 21) the law applicable to international succession is that of the country in which the deceased had his habitual residence at the time of death, regardless of whether this is an EU country or a Third country. Under same Regulation a person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.

Therefore, the first thing the Italian citizen residing abroad should do is to become fully apprised of the law of the country where he/she resides, because, irrespective of the citizenship, that law shall be the one applicable to the inheritance. The second (but not secondary) thing to check is where the assets are located, because in some instances the law of the place where the assets (mainly real estate) are located may apply, irrespective of the law governing the succession. A careful review of all laws possibly applicable is therefore necessary to determine which one may better respond to the intention of testator.

If for whatever reason the testator concludes that the Italian law is the one which is best suited to govern his/her inheritance, he/she should make an express choice executing a choice declaration in the form of a disposition of property upon death.

The choice may also be demonstrated by the terms of such a disposition, but to avoid ambiguities it is preferable that it is clearly made in a will or in a separate deed.

It the Italian law is chosen, the Italian citizen should know that according to the Italian civil code he succession can be:

• “legitimate” when, in the absence of a will, the law identifies the heirs in the persons of the close relatives of the deceased and assigns to them the assets belonging to the estate. If the Italian residing abroad made the choice of the Italian law without expressly regulating his succession, i.e. without appointing heirs, the rules of the Italian Civil Code on the legitim succession will apply;
• “testamentary” when the deceased drew up a will by which he/she disposes of his/her assets (i) by appointing universal heirs, i.e. persons inheriting all - or a quota  of - the assets; or (ii) by appointing legatees, i.e. persons inheriting only a single asset (or a sum of money). The testator is not totally free to dispose of his assets, because the Italian law provides for “forced heirship”: part of the inheritance must go to certain heirs by law as follows:

If the forced heirship rules are not complied with in the will, the prejudiced heirs may apply to the competent court seeking to reverse the will disposition. Again, a careful analysis of the jurisdiction rules should be made for each country where the assets are located, to ascertain whether a judgment obtained, for example, in Italy (assumingly the place of governing law) is likely to be enforced in the country where the testator was domiciled or where the assets of the estate are located.