Law Applicable to Succession

Characteristic Features of
Succession Law in the Baltic
States, Austria and Germany
Ilze Metuzāle, Notary
09/05/2014
The Institution Competent for Handling Succession
Matters
Notary – in Latvia, Estonia and Lithuania
Court – in Germany
Notary as a representative appointed by the court –
in Austria
Law Applicable to Succession
The law applicable to succession depends in each country
on:
1) Nationality of the deceased;
2) Habitual residence of the deceased;
3) Location of property.
Austria – the law of the country whose citizen the
deceased was at the time of death. Austrian law does not
provide for exceptions; therefore persons cannot choose
the law applicable to succession matters.
Germany – the law applicable to succession is the law of
the country whose citizen the deceased was. However all
foreigners may choose German law as the law applicable to
succession regarding the immovable estate located in
Germany.
Lithuania – the law of the country of the deceased
person's habitual residence at the time of death. Succession
of immovable estate is determined by the law of the
country where the estate is located. Lithuanian laws do not
provide an opportunity to choose other applicable law.
Estonia – the law of the country of the deceased person's
habitual residence at the time of death. Estonian laws
provide an opportunity to choose the law applicable to
succession cases. However the opportunity to choose is
limited: it is possible to choose only the law of the country
the deceased was a citizen of.
Latvia - the law applicable to succession is determined by
the location of the movable and immovable property in
question. The law where the movable and immovable
property was located in at the deceased person's time of
death is applied to succession. Latvian laws do not permit
any exceptions regarding this principle; this means that
individuals cannot choose the law applicable to succession.
Intestate Succession
Austria – succession takes place in categories depending on the
closeness of the relationship. The spouse receives one third of the
succession; the rest of the succession is split up between children in
equal shares.
Germany – succession takes place in categories depending on the
closeness of the relationship. The surviving spouse is only one of heirs
together with children, etc., and the share to be inherited depends on
the matrimonial property regimes. If the testator had lived together
with his/her spouse and had co-owned common property in equal
shares, and he/she has surviving children, then the surviving spouse
receives half of the property (intestate succession is ¼, and another ¼
is disbursed as a one-off compensation). The remainder of the
property is split up equally between children.
Lithuania - succession takes place in categories depending on the
closeness of the relationship (a total of six degrees or categories of
heirs are distinguished in Lithuania). The surviving spouse inherits by
operation of law or is qualified in the same category as second step
heirs (if such exist). The spouse inherits ¼ of the succession together
with the first step heirs provided that no more than three heirs exist
excluding the spouse. If more than 3 heirs exist, the spouse inherits
equal shares as other heirs. If the spouse inherits only with the second
degree heirs, he/she is entitled to one half of the succession. If no
first or second step heirs exist, the spouse inherits the entire
succession.
Estonia – succession by categories; a total of three categories exist. If
the surviving spouse lives together with the first degree intestate heirs descending heirs - the spouse inherits the share of children, yet not
less than ¼ of the succession. If the spouse inherits together with
second degree heirs, he/she is entitled to one half of the succession.
If no first or second degree heirs exist, the spouse inherits the entire
succession.
Latvia – succession takes place in accordance with a
certain sequence based on the type of relationship and the
closeness of heir categories. The surviving spouse receives
the share of a child if more than three children exist; in
case of four or more children - at least ¼ of the
succession. If the testator does not have any descending
heirs, the spouse receives one half of the succession and
the apartment furnishings. If the testator has neither
descending, adopted, ascending heirs, or siblings or their
children, or if the surviving ones are renounced, then the
surviving spouse inherits everything.
Testate Succession
Austria:
1) Public or authentic wills drafted by a notary or a court;
2) Holographic wills written and signed by the testator
him/herself;
3) Written wills which might not be written by the testator's
hand, yet are signed by the testator in the presence of three
witnesses.
Germany:
1) Public or authentic wills drafted and certified by a
notary;
2) Holographic wills written and signed by the testator
him/herself;
3) Wills written by one's hand which may be deposited at
the court upon testator's request.
The option of joint wills exists; this option is reserved for
married couples or same sex partners in officially
registered relationships.
Lithuania:
1) Public or authentic wills drafted and certified by a
notary;
2) Holographic wills written and signed by the testator
him/herself.
Estonia:
1) Public or authentic wills drafted and certified by a notary;
2) Wills executed by testators and are deposited at a notary's office;
3) Holographic wills written and signed by the testator him/herself;
4) Wills which might not be written by the testator's hand, yet are signed
by the testator in the presence of two witnesses.
The last two types of wills are valid only for six months after executing
them, provided that the testator is still alive. Testators must execute new
wills after this period. Public wills and wills deposited with the court do
not have an expiry date.
Latvia:
1) Authentic or public wills certified by a notary or custody
court (residents who reside in the jurisdiction territory of
the custody court where no notaries practice);
2) Wills executed by the testator and deposited at a notary's
office or custody court;
3) Holographic (private) wills which must be completely
written and signed by the testator;
4) Hand-written or printed wills executed in the presence of
two witnesses - this type of wills will be deleted from the
Civil Law of the Republic of Latvia as of 1 July 2014.
Becoming an Heir
Austria - court orders are necessary in order to give
succession to heirs; court orders are issued after completing
a special procedure. The procedure is carried out by a notary
on behalf of the court. The court whose jurisdiction is the
deceased person's area of residence launches a succession
procedure upon the receipt of a notification of a person's
death. The succession process is handled by a notary acting
in the capacity of the court's representative, and he/she acts
on behalf of the court. The succession process is completed
by issuing a court order.
Germany - if the succession matter falls under the
jurisdiction of German courts, both - notarially executed
wills and wills deposited with the court are opened and read
without the heir's initiative upon the testator's death. If the
heir wishes to decline the succession, he/she must decline it
officially otherwise it is considered that the heir has
accepted the succession. The deadline for declining
successions is six weeks after the testator's death; in case the
testator's last habitual residence was abroad the deadline is
six months.
Lithuania - in order to receive succession heirs must submit
succession claims regarding the acceptance of a succession, or they
must start managing the property to be inherited. The deadline for
accepting successions is three months from the moment of opening
the succession. If the heir misses the deadline for accepting the
succession, he/she must turn to the court by means of requesting to
extend the period for accepting the succession.
Estonia – in order to receive succession heirs must submit succession
claims regarding the acceptance of a succession. If the heir wishes to
decline the succession, he/she must decline it officially otherwise it is
considered that the heir has accepted the succession. The deadline for
declining successions is three months after the heir finds out about the
testator's death.
Latvia – in order to receive a succession heirs must submit succession
claims regarding the acceptance of a succession to a notary. The
succession matter is handled by a notary who practices in
the district court of the testator's last declared habitual
residence; if the last habitual residence is unknown, the case
must be launched according to location of the inheritable
property or its main part. The deadline for accepting
successions is one year after the testator's death however the
notary may announce a shorter application period upon the
request of the interested persons. It must not be shorter
than three months from the publishing date of the
summons. Announcing takes place through the official
newspaper "Latvijas Vēstnesis".