Cross-border succession, an Italian will and the children's reserve
Mrs. Rossi, an Italian national habitually resident in Luxembourg for 20 years, dies in 2024. She made a will in Italy in 2010 leaving her entire estate to her second husband, Mr. Bianchi, and saying nothing about her two children from her first marriage. The estate includes a Luxembourg apartment worth EUR 800,000, Luxembourg bank accounts of EUR 200,000, and a house in Tuscany worth EUR 300,000. The will was deposited with an Italian notary; the children live in Belgium and object that they are reserved heirs. Mr. Bianchi asks a Luxembourg notary to transfer the apartment to him immediately and to issue a European Certificate of Succession. The notary notes that Mrs. Rossi never made a choice of law and that the Italian house is still registered in her name.
1. Which law governs the succession, and does the 2010 will validly choose Italian law?
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Under Regulation (EU) 650/2012, the default rule is the law of the deceased's habitual residence at death. Mrs. Rossi had lived in Luxembourg for 20 years, so Luxembourg law governs the whole succession, including the Tuscan house, unless she made a valid choice of Italian law. Article 22 requires the choice to be express or clearly implied in the will. The 2010 will says nothing about applicable law, so it is not a choice. The transitional provision for wills made before 17 August 2015 can validate a choice made before that date, but only if the will actually contains one. The notary should therefore apply Luxembourg succession law and not assume that Italian law governs because of nationality or the Italian will.
2. What is the effect of the will on the children's reserved shares?
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Under Luxembourg law, the children are reserved heirs. With two children the reserve is generally two-thirds of the estate, so the disposable portion is one-third. The will gives everything to Mr. Bianchi, which prima facie exceeds the disposable portion. The notary must value the worldwide estate, deduct debts and funeral costs, and calculate the reserve. The children can claim reduction of the legacy. The notary cannot transfer the apartment to Mr. Bianchi free of the children's claim without their agreement or a court decision. The notary should explain the options: a negotiated settlement, a partial transfer, or a deed subject to the children's rights. The notary must also consider the surviving spouse's rights and any collation.
3. Can the notary issue a European Certificate of Succession and transfer the apartment? What steps are required?
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The notary may issue a European Certificate of Succession if the notary is competent in Luxembourg and the succession is cross-border. The ECS is evidence of the heir's status and rights; it is not a transfer deed. For the Luxembourg apartment, the notary still needs a Luxembourg succession deed or certificate, payment of inheritance tax, and registration of the transfer. The ECS can help with the Italian house, but the Italian authorities may require a certified translation. Because the children object, the notary should not issue an ECS that presents Mr. Bianchi as sole heir without disclosing the reserve issue. The notary should first establish the heirs and the disposable portion, then issue the ECS or a qualified certificate. If there is a dispute, the notary should advise the parties to go to court.