One sentence in your will can switch the law that governs your estate

When you settle abroad, the country you live in often becomes the legal anchor for your entire estate—including assets thousands of miles away. Under EU Succession Regulation 650/2012, your habitual residence at death determines which country's inheritance laws apply to your whole succession. But there is a powerful escape clause. By inserting a single choice-of-law declaration into your will, you can switch this entire legal framework to your nationality instead, potentially unlocking complete testamentary freedom and avoiding forced-heirship constraints that would otherwise bind your estate worldwide.

How Habitual Residence Locks in German Law by Default

The EU Succession Regulation applies in all EU member states except Denmark, Ireland, and the United Kingdom. It was designed to simplify cross-border estates by removing legal fragmentation. The regulation's central rule: the law of the deceased's habitual residence at the time of death governs the succession as a whole. This means your movable assets (bank accounts, investments, personal property) and immovable property (land, real estate) all fall under one jurisdiction, no matter where they physically sit.

For you, as someone living in Germany, this has immediate consequences. If your habitual residence is Germany when you die—determined by the duration, regularity, and stability of your physical presence and life circumstances—then German inheritance law applies to your entire estate. That includes the Pflichtteil, Germany's compulsory inheritance share system. The Pflichtteil entitles certain close relatives (children, spouses, sometimes parents) to claim a fixed portion of your estate in cash, calculated as half their intestate share, regardless of what your will says. This applies even to property you own in other EU countries that participate in the regulation.

Your Right to Choose Your Nationality's Law Instead

Article 22 of the EU Succession Regulation gives you a critical override. You can elect that the law of your nationality—not your habitual residence—governs your succession. This choice must be made expressly in a will or inheritance contract (Erbvertrag). The regulation allows you to choose the law of any country whose nationality you hold either at the time you make the choice or at the time of your death.

Why does this matter? Nationality law often differs dramatically from Germany's forced-heirship model. Citizens of the United States, United Kingdom, Nigeria, India, or many other countries have testamentary freedom—the ability to leave their entire estate to whoever they choose, with no mandatory shares owed to family members. By electing your home country's law, you restore that freedom, assuming your home country's succession law is more permissive than German law. The chosen law then applies globally to your entire succession, across all EU member states that recognize the regulation.

The Essential Requirement: Express Declaration

The choice must be clear, deliberate, and stated expressly in writing. A single straightforward sentence in your will is sufficient and safest. For example: 'I hereby elect that the law of the United States of America shall govern my succession as a whole' or 'I choose that Indian law shall apply to my entire estate.' Vague language or implied intentions invite disputes and may not be recognized by German probate courts.

Your will must formally declare the choice. This is not something to leave implicit or buried in a passing remark. German probate courts and courts across the EU take the language seriously. The declaration should name the country whose law you are choosing, and ideally should explicitly state that this applies to your succession as a whole. Notarial advice is crucial here, especially if you hold multiple nationalities or own property in multiple countries.

When You Hold Multiple Nationalities, Including German

If you are a dual citizen—for instance, a German-American, a German-British, or a German-Indian national—you can still make a choice of law. You are permitted to elect the law of any nationality you hold. This includes choosing the non-German law, even if you also hold German citizenship. As of June 2024, German nationals can hold multiple nationalities simultaneously without losing German citizenship, making dual or plural nationality increasingly common among expatriates and returning migrants.

A German citizen living in Berlin who also holds British nationality can choose English law to govern their succession, even though Germany is their habitual residence and they are a German national. Similarly, a German-Indian dual citizen can elect Indian law. The regulation does not penalize you for choosing a non-German law, though German courts reserve the right to invoke public policy (ordre public) in rare and extreme circumstances—for instance, if the chosen law would violate a core constitutional principle of German law that is deemed to have sufficient domestic connection to the succession.

How to Declare Your Choice of Law

Working with a German Notary

The safest and most legally certain way to declare your choice of law is through a notarized will. A German notary (Notar) is a legally trained, state-appointed official, not a private lawyer. Notaries have special authority under German law to draft wills and verify their authenticity. When you meet with a notary to create or update your will, you can instruct them to include an explicit choice-of-law clause. They will ensure the wording complies with the EU Succession Regulation and German formal requirements.

You can also include a choice-of-law clause in a handwritten will (Holographisches Testament), though notarization provides much stronger evidence of your intent and reduces the risk of disputes. A handwritten will in Germany must be entirely written by your own hand, dated, and signed. If you choose this route, write your choice-of-law declaration as clearly and unambiguously as the rest of your will. Notarization is recommended, particularly if you own property in Germany or have a complex cross-border estate.

Inheritance Contracts and Other Options

You can also declare your choice of law in an inheritance contract (Erbvertrag), a binding agreement that can involve multiple parties and must always be notarized. This is less common for individuals but useful if you are making reciprocal arrangements with a spouse or other family members. The choice-of-law declaration works the same way: state expressly which nation's law should apply to your succession as a whole.

What Changes When You Make the Election

Freedom from Forced-Heirship Constraints

If you are a US citizen living in Germany and you elect US law, your Pflichtteil obligations disappear. American succession law allows you to leave your estate to anyone you choose—your best friend, a charity, a distant cousin—with no mandatory share owed to your children or spouse. The same applies to UK citizens electing English law, Nigerian citizens electing Nigerian law, and so on. Your choice of law governs the substantive rights and obligations relating to succession, including the presence or absence of forced-heirship systems.

This does not mean all rules vanish. Depending on which country's law you choose, tax implications, property transfer rules, and probate procedures may still vary. But in terms of who can inherit and in what proportions, you regain testamentary freedom—the power to decide your own estate plan without mandatory distributions to family members.

Universal Application Across the EU

Once you make a valid choice of law, that law applies to your succession as a whole. This means your choice is recognized not only in Germany but across all participating EU member states. If you own a flat in Berlin, a villa in Spain, and a cottage in Italy, and you elect your home country's law, all three properties fall under your chosen legal framework. You avoid the fragmentation that used to plague cross-border estates, where different countries might apply different laws to different assets.

Which Courts and Authorities Have Jurisdiction?

Making a choice of law does not change which country's courts can open succession proceedings. Under the regulation, the courts of the country where the deceased had habitual residence at death retain jurisdiction over the succession as a whole. If you live in Germany when you die, German probate courts (Nachlassgericht) will handle your case, even if you elected US law. However, your choice of law determines which substantive law those courts apply when interpreting your will and distributing your estate.

The European Certificate of Succession: Proving Status Across Borders

Once your estate is settled and the applicable law determined, your heirs, legatees, or executors need to prove their status in other EU countries. This is where the European Certificate of Succession (Europäisches Nachlasszeugnis) becomes invaluable. It is a standardized document created under the EU Succession Regulation that serves as proof of a person's rights as heir, legatee, executor, or estate administrator across all participating EU member states.

What It Does

Before the regulation, if you inherited property in multiple EU countries, you had to prove your inheritance status separately in each country—a costly, time-consuming, and bureaucratic nightmare. The European Certificate of Succession eliminates this. Issued by the competent authority (usually the probate court) in the country where the deceased had habitual residence, the certificate is recognized automatically in all EU member states without requiring separate probate proceedings in each country. It works like a pan-European inheritance passport.

How to Obtain It

The certificate is not issued automatically. An interested person—typically an heir, executor, legatee, or administrator—must apply expressly to the competent authority. In Germany, you apply to the probate court (Nachlassgericht) in the local jurisdiction of the deceased's last habitual residence. You will need to provide the death certificate, identification documents, family certificates proving your status as an heir, the will, evidence of assets, and any other supporting documentation the court requests.

The application process requires a solemn declaration confirming the accuracy of the information you provide. This declaration is often made before a notary or directly before the probate court. You must apply in person; representation by an attorney alone is not sufficient for the solemn declaration. The court or competent authority then examines your application and, if satisfied, issues the certificate. The document has unlimited validity unless later revoked or suspended.

Using the Certificate Across EU States

Once issued, the European Certificate of Succession can be used to transfer bank accounts, register property transfers, liquidate investments, and prove your authority to act on behalf of the estate in any EU member state except Denmark, Ireland, and the United Kingdom. Banks, land registries, and other institutions in Spain, France, Italy, Austria, Poland, and elsewhere recognize it without requiring separate national probate certificates. This vastly simplifies cross-border estate administration.

Practical Checklist for Expats and Foreigners in Germany

1. Determine your habitual residence status. Are you settled enough in Germany that it would be considered your habitual residence at death? If yes, German law applies by default unless you act.
2. Identify your nationality or nationalities. Are you a dual citizen? Do you hold another nationality you prefer for succession purposes?
3. Clarify what law you want to apply. Does your home country allow more testamentary freedom than Germany? Do you want to leave your estate to non-family members or in unequal shares?
4. Draft your will with a German notary (Notar) who understands cross-border estate planning. Ask them to include an express choice-of-law clause naming the country and confirming it applies to your succession as a whole.
5. Ensure the will complies with German formal requirements if it has any connection to Germany. A notarized will is safest. Handwritten wills are valid but riskier.
6. Review your will every few years, especially if you move, acquire new nationality, or accumulate assets in different countries.
7. Brief your family or executor about your choice of law and the reasoning behind it. Keep a copy in a safe place and ensure someone knows where it is stored.

Common Pitfalls to Avoid

Many expats assume that drafting a will in their home country and following their home country's rules is enough. It is not. If you die with habitual residence in Germany and you have not declared a choice of law in your will, German law applies to your succession regardless of where your will was drafted or in which language. A will signed by two witnesses and typed (as is common in the US and UK) does not meet German formal requirements, though it may be recognized as valid under the Hague Convention on the Form of Testamentary Dispositions.

Another common mistake is writing an implicit or vague preference. Saying 'I prefer that English law applies' or 'My estate should be handled according to US rules' is not enough. The regulation requires express declaration. Use clear language: 'I hereby elect' or 'I choose.' Ambiguous wording invites probate court disputes and delays.

For dual citizens, some people assume they cannot choose a non-German law because they hold German nationality. This is false. You can elect your other nationality's law even if you also hold German citizenship. But you must state your choice explicitly and have it properly documented.

Finally, do not ignore taxes. Choosing your home country's succession law does not exempt you from German inheritance tax on German-located property, and it does not eliminate tax obligations in your home country. Succession law and succession tax are separate issues. Consult both a notary and a tax advisor (Steuerberater or at your local Finanzamt) to coordinate your plan.