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April 22, 2021
European Inheritance Regulation


Important differences between German and Italian inheritance law

In Germany, especially in Southern Germany, there are many Germans who have assets in Italy or intend to acquire them or, for example in old age, want to spend a significant part of the year in Italy. In the following some points aspects are represented, which result from this constellation.

I. European Inheritance Regulation (EU Inheritance Regulation)

If an inheritance case has references to two different legal systems because the decedent had his last residence in Italy, for example, but substantial estate assets are located in Germany, for example, two main questions arise from the perspective of international private and procedural law:

1. do the German or Italian courts have international jurisdiction to settle the estate?
2. is German or Italian law applicable to the succession?

Both questions have to be answered with respect to successions that have occurred since 17.08.2015 or will occur in the future according to the EU Inheritance Regulation of 14.07.2012, in which both Germany and Italy participate.

a) International Jurisdiction

The provisions in Chapter II of the Regulation on international jurisdiction in matters of succession and probate completely supersede the national procedural law of the Member States. The latter retains significance only for determining the court with jurisdiction within a member state.

The jurisdiction rules of the EU Inheritance Regulation apply in principle to the entire estate. Thus, only one court is to decide on the succession upon death, even if the estate is distributed over several states. In view of the increasing mobility of citizens, the Regulation provides for the habitual residence of the decedent at the time of his death as the general connecting factor for international jurisdiction in Art. 4. If this is in Germany, the German courts have international jurisdiction for the settlement of the entire estate, even if substantial estate assets are located in Italy or in other member states, for example. Accordingly, Italian courts have jurisdiction over the estate even of German citizens if they had their habitual residence in Italy prior to their death.

The main purpose of this rule is to prevent contradictory decisions by courts of different member states regarding the same estate.

b) Applicable law

Principle: Law of the habitual residence

According to Art. 21(1) of the EU Inheritance Regulation, "the entire succession upon death" is also subject to only one law, regardless of the nature of the assets and regardless of the EU member state or third country in which they are located. Thus, the EU Inheritance Regulation also follows the principle of unity of succession in private international law.

According to this, the law of the state in which the decedent had his habitual residence at the time of his death applies to the entire legal succession upon death.

c) Solution: Choice of Law

If the testator does not have the nationality of his or her state of residence, the EU Inheritance Regulation enables him or her to determine the law applicable to his or her succession by death within narrow limits by choosing the law. This choice of law is granted to him in particular in the interest of secure estate planning, because the exercise of the right of free movement by transfer of habitual residence has no influence on the applicable law of succession if the testator has made such a choice of law.

However, according to Art. 22 Para. EU Inheritance Regulation, the choice of law is opened up to the testator - as a counterweight to the principle of linking to habitual residence - only in favor of the law of the state of which he or she is a national.

The principle of unity of the estate also applies to the choice of law. Therefore, the testator can only make the choice under Art. 22 (1) EU Inheritance Regulation for his or her entire estate - without regard to the location of individual objects of the estate. A partial choice of law only for the assets located in Italy or Germany is no longer permissible under the validity of the Regulation.

II. Important differences between German and Italian inheritance law

The German law of succession differs significantly from the Italian law of succession in some aspects and it is precisely for this reason that a correct choice of law can provide a remedy to regulate certain situations in the way the testator wishes, although it should be noted that some provisions, which have a so-called public law character, can nevertheless not be circumvented and could be compulsorily applied.

As areas where different rules prevail in the two legal systems, the following can be mentioned, for example:

  • Transfer of the estate: in Italy, acceptance of the inheritance is required, whereas in Germany the transfer of the estate occurs at the time of the opening of the inheritance.

  • In the case of bequests, in Italian law there is an automatic transfer at the time of the opening of the succession, whereas in Germany bequests have a mandatory effect and thus only the claim that the legatee acquires against the heir, for the transfer of ownership or possession of the thing subject to the bequest. Thus, German law does not recognize the so-called real effect of the bequest.

  • As far as the position of the so-called obligated heirs is concerned, in Italy they have the same status as heirs, whereas in Germany they have a property law claim against the heirs.

  • The so-called disposition share of the testator is higher in Germany than in Italian law.

  • German law, unlike Italian law, recognizes the joint will, by which spouses can make a joint will. For this purpose, it is sufficient if the other spouse also co-signs the will, indicating the date and place of the will drawn up by the spouse. The joint will can be revoked by the spouses during their lifetime by revoking the entire will or individual dispositions or by drawing up a new joint will. Unilateral revocation is also possible, subject to certain requirements. Under Italian law, there is no such possibility of joint dispositions; it is necessary to draw up two individual wills.

    The will known as the "Berlin will" is a special feature of the joint will. The spouses appoint each other as sole heirs and at the same time stipulate that upon the inheritance of the surviving spouse, the entire estate shall pass to a third party. This variant is also unknown to Italian law.

  • Inheritance contracts: This does not exist in any form in Italian law, but does exist in German law and is an alternative to a will to structure the successions. It must be notarized and the parties must be present. Unlike the joint will, the contract of succession can also be concluded with a third party. With the contract of inheritance, the testator can determine inheritance provisions, legacies and conditions. These dispositions are linked to a consideration from the contracting party. In practice, the testator will opt for this form if he wants to secure care services from the contractual partner. Compared to the will, the contract of inheritance offers the additional security for the contractual partner that the testator cannot unilaterally change the contract of inheritance. The contract can therefore only be amended if the testator and the contracting partner are present at the notary's office.

  • Inheritance certificates are issued in Germany by the court that has jurisdiction according to the last place of residence of the deceased. In Italy, on the other hand, they are issued by notaries.

    They confirm the status as heir and are to be presented to the competent offices to carry out the necessary formalities in the case of inheritance. If the beneficiary of the inheritance is in Italy, he or she can request the certificate of inheritance of a person who has died in Germany from the German consulate. The application for the issue of the certificate of inheritance can be made (whether in Germany or in Italy) by the persons provided for by the EU provision. However, for some formalities to be carried out in Italy, the certificate of inheritance is not sufficient, so that it proves necessary for the heirs to declare before a notary whether they accept or disclaim the inheritance before the requested execution in Italy.


These represent only some of the peculiarities that exist in the respective legal systems and that should be taken into account when settling the estate.

However, it should also be noted that in Italy in particular, and in the case law prevailing there, particular attention is paid to so-called mandatory law. This can lead to regulations, e.g. under German law, which are legitimate there, being interpreted in Italy as a breach of mandatory law and thus being declared null and void. Therefore, the aspect to be regulated in each case must be carefully examined and weighed up. Inevitably, therefore, there is unfortunately a lack of absolute legal certainty.

For further information, please contact the authors working in our Italian Desk respectively one of our Italian cooperation partners:


Ulrich Leierseder
Attorney at Law
Specialist in commercial and corporate law



Nicole Trojer
Attorney at Law/Avvocato
LT Legal