Cross-border succession: the European Regulation and the revised PILA

The European Succession Regulation

Since 17 August 2015 Italian courts and notaries have determined the law applicable to a succession under Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 (the Succession Regulation). It replaced the conflict rule of Art. 46 of the Italian Law No 218 of 31 May 1995 on private international law. Under that provision the succession was governed by the national law of the deceased at the time of death. An Italian living in Lugano could submit the succession to the law of the state of residence by an express declaration in a will, but such a choice could not prejudice the rights that Italian law reserved to protected heirs resident in Italy.¹ The Regulation applies to the succession as a whole and has universal application, so that it designates the law of a third state such as Switzerland where its connecting factors lead there. The basic rule is in Art. 21(1): "the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death." Among other matters the applicable law governs "reserved shares and other restrictions on the disposal of property upon death" (Art. 23(2)(h)).² Trusts as such are excluded from the scope of the Regulation by Art. 1(2)(j), although the devolution of assets to a trust created by will remains governed by the succession law.

Art. 22 allows a person to choose as the law governing the 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". The choice must be made expressly in a disposition of property upon death or be demonstrated by its terms.³ No other choice is permitted. An Italian national may therefore choose Italian law, while a person with Italian and Swiss nationality may choose either Italian or Swiss law. An Italian national without Swiss nationality cannot choose Swiss law, even after decades in Lugano. For such a person Swiss law applies under the Regulation only through the objective connecting factor of habitual residence. The Regulation also gives Italian courts subsidiary jurisdiction where the deceased was habitually resident in a third state. Under Art. 10(1) the courts of the member state in which estate assets are located may rule on the succession as a whole if the deceased had the nationality of that state or had been habitually resident there within the previous five years. Under Art. 10(2) they may rule on the assets located there in any event.⁴

Notes

1. Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201, 27 July 2012, p. 107, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32012R0650 (consulted 5 October 2026). Art. 83(1) (deaths on or after 17 August 2015) and Art. 20 ("Any law specified by this Regulation shall be applied whether or not it is the law of a Member State"). Legge 31 maggio 1995, n. 218, Art. 46, text and note on its replacement by the Regulation for successions opened after 17 August 2015, Brocardi.it, https://www.brocardi.it/legge-diritto-internazionale-privato/titolo-iii/ capo-vii/art46.html (consulted 5 October 2026). ↩
2. Regulation (EU) No 650/2012, Arts 21(1) and 23(2)(h) (above). ↩
3. Regulation (EU) No 650/2012, Art. 22(1) and (2) (above). ↩
4. Regulation (EU) No 650/2012, Art. 10 (above). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of October 2026.