Legislation on heritage: some general issues

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A foreign country's purchase of property often requires an examination of who inherits the property. The problems can be very complicated. For every country, the Global Property Guide provides an essential outline, based on the advice of leading local law firms. hotels

A brief overview of possible problems with the heritage:

The portion reserved

Anglo-Saxon buyers are often not fully prepared for the usual "reserved portion" of continental legal systems. The 'necessary heirs' who are designated by law must be granted a significant portion of the property left under those systems of law. These 'needed heirs' are usually the sons and daughters of the deceased and their wife. The division between the estate is usually quite straightforward (although Islamic law has created a "necessary heir" system of considerable complexity). The wife is often granted the right to live on the property, but she does not retain her possession.

Only the 'non-reserved' portion of the estate can be left free of charge in such systems.

What heritage law is applicable?

The issue of the law which applies to a foreigner's property, especially a non-resident foreigner, can be complex in many countries.

The two legal systems (that of the owner and the country in which the property is) may not be well-measured.

The country in which the property is located may also consider the applicable law:

own law;

Law of the country of residence of the proprietor; or,

National law of the owner.

The most common case is that it applies its own law or national law of the owner. But, in the second case, the national law of the proprietor may (e.g.) say that the law of that country is the law of the land in which the property is located – that is, its law will return the matter to the country of destination.

There's a clear conflict here. One law of one country says one thing, the other one says another. Both are sovereign countries. This type of dispute creates the specialized legal discipline of 'conflicts of laws.'

When this particular conflict occurs, the local courts accept the jurisdiction, and also accept the determination of the nationality court that when the property is the applicable law - i.e., they 'accept the reference' and apply their own law to the property's heritage.

However, this is not always the case and there can really be no straightforward solution – a classic conflict of laws, which can be time consuming and expensive to unravel.

Who owns the estate?

The concept of profit ownership in Anglo-Saxon countries can complicate ownership problems. It is very common for a property to be jointly owned by a couple, although the title deed contains only one individual's name. But in countries of continental law, the question is answered more simply. The name of the title of the acts, apart from fraud, is that of the owner.

Can the property be donated during the owner's lifetime?

In vivo gifts are usually possible, but they are often restricted and sometimes clung back.

Is it wise to do a will?

In many cases, making a local will speeds up the testing process. In such cases, the lawyers who have prepared the articles of the Global Property Guide will clarify whether making a local will is beneficial and what requirements the courts of the country have to recognize.