and German-Norwegian successions:
I. Which law is applicable?
Regarding successions that affect both Germany and Norway, firstly it has to be determined, which jurisdiction is the one to be applied. Due to a lack of a genuine “international inheritance law”, the applicable law is determined by the affected states themselves.
1. Norway:
From a Norwegian perspective – as long as the Nordisk Dødsbodkonvention, which applies in relation with Denmark, Sweden, Finland and Iceland is not applicable, the international Norwegian Inheritance law – a customary legislation – has to be firstly consulted. Regarding international successions customary law is also an assessable source of law.
The Norwegian international inheritance law establishes the applicable jurisdiction by means of the residence of the deceased (hjemlandslov). The country in which the deceased used to have the centre of his life is the assumed country of residence.
1st Case : A German carpenter moves to Norway and starts a business and builds a house. From a Norwegian perspective due to the residence as the relevant factor, Norwegian law is the applicable law.
2nd Case : A Norwegian citizen moves permanently to Berlin and dies in Berlin. Since the deceased had his last residence in Berlin, from the Norwegian perception German law is the applicable law. However, it remains unclear, whether the Norwegian Law refers to the German law. An individual assessment must be undertaken.
Caution: Norway is not a member state of the EU, thus the European Regulation of Successions – in force since August 2015- is from a Norwegian perspective not applicable.
Attorney Swane: Tel. + 49 (0) 30 62 93 78 66 6
Attorney Block: Tel. + 49 (0) 40 573 07 99 99
2. Germany:
Germany as a member state of the European Union has ratified the Regulation of Successions. To facilitate cross-border-successions within the European Union, the European Parliament and the Council passed the Regulation of Successions (Regulation No 650/12), applicable to persons deceased on or after 17th, of August 2015.
According to the EU Regulation, only one single criterion remains for determining the jurisdiction and the law applicable to cross-border successions, namely the last “habitual residence” of the deceased.
Caution! The new law also applies to nationals of Norway residing in any of the other member states of the Regulation of Succession (“Loi uniforme”, Art. 20). For example, if a Norwegian citizen resides in Germany, the Regulation will be applied.
II. Matrimonial Property Regime:
The matrimonial property regime, depending on the respective legal order, exercises a significant influence on the economic outcome regarding the distribution of the estate.
The statutory matrimonial property regime in Denmark is the “joint property” (§ 56 EheG). The joint assets of the spouses establish the matrimonial common property. The surviving spouse is allowed to take on the matrimonial common property if he notifies the probate court within 60 days and the spouses have lived in the matrimonial property regime of a deferred joint property (felleseie). The distribution of the common property is deferred upon the death or remarriage of the surviving spouse.
The legal institute of the deferred joint property may lead to a denial of access of the estate in favor of the descendants of the deceased and the surviving spouse. Children of the deceased from an earlier marriage may, however, deny the deferred joint property concerning their inheritance portion and demand to be compensated.
III. Substantive Law
1. Intestate successions:
The Norwegian intestate succession regulations can be found in the Lovomarv (here ) of 03.03.197. Similar to the German regulation the line of succession is determined by classes of beneficiaries. This line of succession ends however with the third class of beneficiaries (Grandparents of the deceased).
The portion of the surviving spouse depends on the existence of further heirs. In case the deceased had children, the spouse will inherit a fourth of the estate. If the deceased had no children and the parents and/or siblings are the closest relatives the spouse will receive half of the estate. Otherwise, the spouse will inherit the entire estate.
A special characteristic of the Norwegian Inheritance Law is that also unmarried life partners – living under similar circumstances as within a marriage or have common children or lived together for the last five years- are entitled to a legal hereditary. (§§ 28a – 28g Arvelova-al here)
2. Will and Succession Contract:
Similar to the German regulations under Norwegian Legislation the testator may dispose of everything up to the restrictions of the forced heirship.
The formal requirements concerning the establishment of a will are compared to the German provisions substantially stricter:
The will has to be signed by the testator. Furthermore, two approved witnesses must also sign the will. The will has either to be signed in front of both witnesses or has to be acknowledged by the testator as his will in front of two witnesses. In contrast, to the German regulations, a written document is sufficient.
Joint wills are permitted and may not only be established by spouses, but also by unmarried life partners and siblings.
However, the right of the surviving spouse to establish a will after the occurrence of the death are limited.
Succession Contracts, on the other hand, are unknown to the Norwegian inheritance law. Nevertheless, an expected inheritance may be transferred or pledged or pre-dispensed. The testator may furthermore agree to keep the property within the family and amend or revoke an existing will.
3. Forced Heirship
According to Norwegian law, the compulsory portion restricts the testator´s free disposal.
Testamentary dispositions that exceed the amount of the compulsory portion, must not be challenged, but are invalid by law. In contrast, to the German regulations, the compulsory portion is a substantive compulsory portion. Thus, a testament must be interpreted accordingly. The spouse and the deceased´s children are legally entitled to forced inheritance.
The children are entitled to 2/3 (two-thirds) of the deceased’s total estate, split equally among them. The amount in favor of the spouse depends on the existence of further heirs. If the deceased has children the spouse is by law entitled to 1/4 (one-fourth) of the total estate. This amount can be reduced by the deceased in his will.
IV. Proceedings
The succession proceedings may be enacted privately by the heirs or publicly by the court of probate. The private distribution requires, that the heir accepts the succession within 60 days after the death of the deceased. The heirs are entitled to request a certificate of inheritance that proves the status as heir (Skifteattest). If the acceptance is not declared within a period of 60 days a public distribution is performed by the probate court. The court determines an executor for the further proceedings.
Recognition of German court decisions in Norway:
Based on bilateral treaties concerning the recognition and enforcement of court decisions on proprietary claims, German court decisions may come into effect if decisions on inheritance matters are of concern. A German court decision is solely ignored by Norway if under the provisions of the (international) Norwegian inheritance law the question upon the applicable legislation might be judged differently. However, this might rarely be the case. The remaining uncertainties due to the customary law may be assessed individually.
V. SuccessionTaxation:
In Norway, the inheritance tax was abandoned by law, of the 13.12.2013 with effect from 01.01.2014. It is substantial for the applicability of the new law that the death has occurred after the 31.12.2013. Those successions that occurred before the 31.12.2013, a succession tax is levied. However, the spouse, the registered partner and the life partner are exempted from the tax obligation. Further heirs benefit from other tax exemptions.
Under Norwegian regulation double taxation is avoided since portions of the estate which are located abroad ate exempted from the tax obligation, when they are taxed where they are situated.
Concerning further details, I will be glad to provide comprehensive assistance.
Do you need help? Please do not hesitate to contact us
Rechtsanwalt Swane in Berlin
German Probate & Wills Lawyer, Specialist in International Probate and Estate Planning
+49 (0) 30 / 62 93 78 66 6
swane@fachanwalt-erbrecht.eu
Schlüterstraße 51
10629 Berlin (Charlottenburg)
Rechtsanwalt Block in Hamburg
German Probate & Wills Lawyer, Specialist in International Probate and Estate Planning
+49 (0) 40 / 57 307 99 99
block@fachanwalt-erbrecht.eu
Gasstraße 2 – Haus 1
22761 Hamburg