Which law applies?
Can I choose the law applicable to my succession?
Last update: 10/3/2012
As a general rule, the law applicable to the succession is that of the country where the deceased had, at the time of his/her death, his/her habitual residence, except in the case of real estate which is governed by the law of the State where the real estate is located.
Belgian law also allows a choice as regards the law applicable to the succession. This choice is limited to the laws of the State whose nationality the deceased person held or that of the State where he/she had his/her habitual residence at the time of the choice. However, this choice cannot result in an heir being deprived of his/her reserved portion under the applicable law if no such choice was made.
Detailed information
Which criteria are used to determine the applicable law?
The P.I.L. Code includes as objective connecting criteria the habitual residence of the deceased at the time of death (Art. 78 P.I.L. Code) for movable property and the law of the situation for immovable property (Art. 78(2) P.I.L. Code). However, if the foreign law leads to application of the law of the State in which the deceased has his/her habitual residence at the time of death, the law of this State is applicable (Art. 78(2), subparagraph 2, P.I.L. Code).
What principles govern the choice of applicable law?
The P.I.L Code allows the testator to submit the whole of his/her succession to the law of a particular State. This choice is, however, limited to the law of the State of which the deceased had nationality or to the law of the State in which he/she had his/her habitual residence at the time of designation or death (see Art. 79 P.I.L. Code).
The result of the choice of applicable law cannot, however, be to deprive an heir of entitlement to the reserved portion that is ensured by the applicable law under the objective criteria of Article 78 of the P.I.L Code, i.e. the law of the habitual residence of the deceased at the time of death or the law of the State in which the property is situated for immovable property.
What are the main international agreements in force?
International Conventions
- The Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions (ratified 20/10/71, entry into force in Belgium 19/12/1971).
- Washington Convention of 26 October 1973 providing a uniform law on the form of an international will (Belgian law of 11/01/83, entry into force 21/10/83)
