Who inherits — and how it transfers: the two questions every foreign estate asks

Here is the sentence that untangles almost every cross-border inheritance conversation we have: who inherits and how it transfers are two different questions, answered by two different systems. Families mix them up; so, quite often, do professionals. Keep them apart and everything else on this site falls into place.

Question one — which law decides who inherits?

This is the job of the EU Succession Regulation (Reg. 650/2012, “Brussels IV”). By default, the law of the country where the deceased was habitually resident governs the whole succession — including forced-heirship rules that protect close family regardless of what the will says. A will can instead expressly elect the law of the deceased’s nationality, and for English testators that election restores full testamentary freedom, subject only to the family claims English law itself allows. The detail is in which country’s law decides who inherits.

Question two — how does the asset actually move?

This one is never up for election. An apartment in the Algarve is a Portuguese immovable sitting on a Portuguese land register, and nothing foreign can touch that register: whoever the governing law says inherits, the transfer runs through Portuguese procedure from start to finish — tax numbers for the heirs, the stamp-duty filing on its own clock, the formal establishment of the heirs, registration of the title. The same is true of a Spanish escritura, an Italian succession declaration, a French notaire’s file. There is no probate in these countries and no resealing of a UK grant — the local machinery is the only road, whichever law drives on it.

So what does a choice-of-law election actually change?

It changes the answer to question one — often decisively. Elect English law and the reserved shares fall away: the will’s gifts stand exactly as written, subject only to the family claims English law itself allows. What it does not do is move a single formality in question two. The same offices, the same filings, the same deadlines run in full. The election decides who takes the apartment; only the country it stands in can give it to them.

Why the election still earns its place

Because question one is where families get hurt. Without an election, a British couple habitually resident abroad can find local forced heirship reaching assets — and children from a first marriage acquiring rights in the family home — regardless of what the will says. One clause resolves all of that certainty in advance. And it quietly does one more thing: it removes the renvoi complication (art. 34, Reg. 650/2012), under which, absent an election, English private international law can send a foreign property straight back to the local law — splitting the estate between systems.

What this means in practice

Two consequences, both good news. First, the two questions can be worked on in parallel: the legal analysis of who inherits proceeds while the local machinery is already being opened — nothing waits for anything. Second, the division of labour between professionals becomes clean: the home solicitor runs the home estate; the lawyer registered in the country of the asset answers question two — and, where an election points to English law, formally proves that law to the local notary and registrar, which is precisely the certificate work we do in-house — included when we handle the estate (Succession Administration); otherwise a separate fixed fee, quoted before we start. One lawyer on both sides of that line is the rarity that makes the whole file simple.