Europeans who settle in the United States, and Americans who acquire property or heirs in continental Europe, find that the two systems answer the same questions differently. In the United States much of an estate passes outside the will and outside the court-supervised probate process, no notary oversees the plan, children have no fixed share, a married couple’s property rights depend on the state in which they live, and the tax falls on the estate rather than on each heir.
Probate is the proceeding in which a local court admits the will, appoints a personal representative (an executor where the will names one, an administrator where it does not) and supervises that person while the assets are collected, debts and taxes paid and the remainder distributed under the will or the state’s intestacy statute. Succession law in the United States is state law; there is no federal law of succession. The firm’s introduction to probate for foreign nationals describes the procedure. The comparison below uses Germany, France, Austria, Switzerland, Italy and the Netherlands as examples; the United Kingdom and Ireland are common law jurisdictions and share many of the American concepts.
Table 1. Continental Europe and the United States compared
| Issue | Continental Europe (typical) | United States |
|---|---|---|
| Source of succession law | National civil code; the EU Succession Regulation in cross-border cases (not in Denmark or Ireland) | The law of each state; no federal law of succession |
| Law applied to the estate | One law for the whole estate, usually that of the last habitual residence | Law of the domicile for movable property, law of the location for real estate |
| Wills | Handwritten, or recorded by a notary and registered centrally | Drafted by attorneys; signed before two witnesses in most states |
| Children | A forced share that a will cannot remove | No forced share (Louisiana excepted) |
| Surviving spouse | A forced share in several countries, in addition to the marital property regime | An elective share in most separate property states; half of the community in community property states |
| Assets passing outside the will | Mainly life insurance | Joint titles, beneficiary designations and trusts, often the larger part of the estate |
| Transfer to the heirs | Heirs succeed directly; proof by a certificate of inheritance or a notarial deed | A court-appointed personal representative collects and distributes the probate assets |
| Trusts | Not part of domestic law; taxed as foreign structures | A standard planning instrument |
| Death tax | Inheritance tax on each heir, with allowances and rates set by the relationship | Federal estate tax on the whole estate before distribution; estate or inheritance tax in some states |
| Spouse and tax | Exemption or a high allowance, whatever the spouse’s nationality | Unlimited marital deduction only if the surviving spouse is a U.S. citizen |
Property titled jointly with right of survivorship
Continental co-ownership generally has no survivorship. The share of a deceased co-owner under German fractional co-ownership (§§ 1008 ff. BGB) or French indivision passes to that co-owner’s heirs. The French tontine clause comes closest, but for inheritance tax the survivor is treated as acquiring the share by a gratuitous transfer (art. 754 A CGI), except for a shared principal residence worth less than €76,000.
Joint property is outside the will, so a will that divides the estate equally among the children does not reach a house that passes to a second spouse by survivorship. Survivorship also does not avoid estate tax: the full value is included in the estate of the first joint owner to die, except to the extent the survivor contributed to the purchase (IRC § 2040(a)). Between spouses only one half is included, but not where the surviving spouse is not a U.S. citizen (IRC §§ 2040(b), 2056(d)(1)(B)). Adding a child to a title can be a completed gift and exposes the asset to the child’s creditors. The firm’s page on asset planning using joint titles covers these points in detail.
Beneficiary designations: payable on death and transfer on death
A designation overrides the will and must be kept current after a marriage, divorce, birth or death. A married participant in a workplace retirement plan can generally name someone other than the spouse only with the spouse’s written consent, witnessed by a notary or a plan representative (IRC §§ 401(a)(11), 417(a)(2)).
Minor children cannot receive these assets outright, and the institution does not create a trust for them. If the designation names neither a trust nor a custodian under the state’s Uniform Transfers to Minors Act, a court must appoint a guardian or conservator of the child’s property, and the child receives the balance outright at majority, which is 18 in most states. A trust, or a custodian who holds the funds until the age state law permits, avoids both results.
The continental counterpart is life insurance. French assurance-vie proceeds fall outside the succession (art. L. 132-12 Code des assurances) and are taxed under their own rules (arts. 990 I and 757 B CGI); a beneficiary named in a German policy acquires the claim directly (§§ 328, 331 BGB), subject to inheritance tax (§ 3 Abs. 1 Nr. 4 ErbStG). European bank and securities accounts generally carry no equivalent designation. For U.S. estate tax, none of these arrangements removes an asset the decedent owned or controlled from the gross estate (IRC §§ 2033, 2039, 2042).
Wills, notaries and attorneys
In continental Europe the notary is a legally trained public officer who drafts and records deeds, advises both parties impartially and registers wills with a central register (the Zentrales Testamentsregister in Germany, the Fichier central des dispositions de dernières volontés in France). In France the notaire also settles most estates. The United States has no counterpart. A notary public is commissioned by the state to verify identity, witness signatures and administer oaths; in most states no legal training is required and a notary may not give legal advice.
Wills are prepared by attorneys. Most states require two witnesses, and a self-proving affidavit signed before a notary allows the will to be admitted to probate without calling them. The handwritten will without witnesses, a standard form in Germany and France (§ 2247 BGB; art. 970 C. civ.), is valid in only about half of the states; Virginia accepts it (Va. Code § 64.2-403(B)), while the District of Columbia and Maryland generally do not. Joint wills, common in Germany (§ 2265 BGB), are prohibited in France and Italy (art. 968 C. civ.; art. 589 c.c.) and discouraged in the United States, as the firm’s article on joint estate plans explains.
Where a European authority requires a certified signature, a U.S. notarial acknowledgment with an apostille is usually accepted; the United States and all six countries discussed here are parties to the Hague Apostille Convention. It does not replace a notarial recording (Beurkundung) where German law requires one, for example for a contract to transfer German real estate (§ 311b BGB). That recording must be made before a German notary or a German consular officer in the United States (§ 10 Konsulargesetz). A will signed in the United States is generally valid as to form in Germany, France, Austria, Switzerland and the Netherlands under the Hague Convention of 5 October 1961 on the form of testamentary dispositions, and in Italy, which has not ratified that Convention, under Article 27 of the EU Succession Regulation.
Trusts
Continental legal systems have no trust in their domestic law. The Hague Convention of 1 July 1985 on the law applicable to trusts and on their recognition is in force in Italy, the Netherlands and Switzerland, among others; France has signed but not ratified it, Germany and Austria are not parties, and the United States has signed but not ratified it.
Recognition does not settle taxation. In Germany the transfer into a trust and distributions out of it are taxable for gift and inheritance tax (§ 3 Abs. 2 Nr. 1, § 7 Abs. 1 Nr. 8 and 9 ErbStG), and trust income can be attributed to German-resident settlors and beneficiaries (§ 15 AStG). France defines the trust by statute (art. 792-0 bis CGI), taxes transfers through it, requires trustees to report, and levies an annual charge of 1.5 percent on trust assets not declared for the real estate wealth tax (art. 990 J CGI). Italy taxes a trust when assets are distributed, unless the settlor elects to pay on contribution (art. 4-bis of the consolidated inheritance and gift tax law, in force since 2025). A U.S. revocable trust therefore needs review before the grantor or a beneficiary moves to Europe. Conversely, a European foundation can be classified by the IRS as a foreign trust, with annual reporting for any U.S. owner or beneficiary on Forms 3520 and 3520-A, described on the firm’s tax compliance page.
Forced heirship and freedom of testation
Continental systems reserve part of the estate for close family (Table 2). In Germany, descendants, parents and a spouse excluded by will can claim half of their intestate share in cash (§ 2303 BGB), and gifts made in the ten years before death are partly added back (§ 2325 BGB). In France the children’s reserve is one half of the estate with one child, two thirds with two and three quarters with three or more (art. 913 C. civ.); a spouse has a reserve of one quarter only where there are no descendants (art. 914-1 C. civ.). Austria and, since January 1, 2023, Switzerland give descendants and the spouse half of their intestate share. The firm’s page on dying without a will in Germany sets out the German intestacy rules.
In the United States children have no forced share, except for young or incapacitated children in Louisiana (La. Civ. Code art. 1493). The protection is for the surviving spouse: in most separate property states the spouse may claim an elective share, often between one third and one half, which many states calculate on an augmented estate that includes non-probate transfers. In community property states the spouse already owns half of the community.
The two sides use different connecting factors. For deaths on or after August 17, 2015, the EU member states other than Denmark and Ireland apply the EU Succession Regulation (Regulation (EU) No 650/2012): one law governs the entire estate, including property in the United States, and it is the law of the last habitual residence (Art. 21), unless the deceased chose the law of a state of nationality (Art. 22). Where the Regulation points to a U.S. state, that state’s conflict rules may refer European real estate back to the law of its location (Art. 34). U.S. courts apply the law of the domicile to movable property and the law of the place where real estate lies (Restatement (Second) of Conflict of Laws §§ 236, 239, 260, 263). A German national domiciled in Virginia with a house in Munich can therefore find the house governed by German law, forced share included, and the rest of the estate by Virginia law.
A choice of law in the will is the main planning tool, and for an American the Regulation refers to the U.S. state with which the person was most closely connected (Art. 36). The choice does not always hold. France gives children a compensatory claim against assets located in France where the applicable foreign law provides no reserve and the deceased or a child was a national or habitual resident of an EU member state (art. 913, third paragraph, C. civ., added in 2021). The German Federal Court of Justice has held that a chosen foreign law leaving a child without any claim independent of need violates German public policy where the case is closely connected with Germany (BGH, judgment of June 29, 2022, IV ZR 110/21).
Marital property regimes
In continental Europe a marriage brings a statutory property regime unless the spouses sign a notarial marriage contract (Table 2). Under the German community of accrued gains (§ 1363 BGB) each spouse keeps separate ownership during the marriage, and at death the surviving spouse’s intestate share is increased by one quarter (§ 1371 BGB). Under the French community of acquisitions (art. 1400 C. civ.) half of the community belongs to the survivor in his or her own right, and only the other half forms part of the estate.
Most U.S. states are separate property states, in which each spouse owns what he or she acquires. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin are community property states, and Alaska, Florida, Kentucky, South Dakota and Tennessee allow couples to opt into community property through a trust or agreement.
For a couple who moved, the regime depends on the conflict rules of each side. Regulation (EU) 2016/1103 applies to spouses who married, or chose a law, on or after January 29, 2019; absent a choice, the law of the first common habitual residence after the marriage generally governs (Art. 26). For French and Dutch couples married between September 1, 1992 and January 28, 2019 without a marriage contract or choice of law, the Hague Convention of 14 March 1978 changes the applicable law automatically, for the future, after ten years of residence in a new country (Art. 7). From the French point of view, a couple married in Lyon in 2000 and living in Virginia since 2010 has been subject to Virginia law since 2020 for newly acquired property.
U.S. courts generally respect the regime under which property was acquired while the couple lived abroad (Restatement (Second) of Conflict of Laws §§ 258, 259). A European contract providing for separation of property does not by itself waive the elective share; the waiver must meet the state’s own requirements, typically a signed writing after fair disclosure (Uniform Probate Code § 2-213). The firm’s article on marital agreements discusses the form.
The regime also affects income tax basis. At the first death both halves of community property receive a basis equal to fair market value, provided at least half was included in the decedent’s estate, and the rule extends to community property under the laws of a foreign country (IRC § 1014(b)(6)). The French community regime has the required features; the German statutory regime, which keeps each spouse’s property separate during the marriage, is generally regarded as not qualifying. The firm’s advisor guide on marital property regimes is listed on the Articles and Guides page.
Table 2. Six continental European countries at a glance (2026)
| Country | Forced share | Statutory marital property regime | Inheritance tax, spouse and children | Hague Trust Convention | U.S. estate tax convention |
|---|---|---|---|---|---|
| Germany | Half of the intestate share, in cash, for descendants, parents and spouse | Community of accrued gains | Allowances of €500,000 (spouse) and €400,000 (child); 7 to 30 percent | Not a party | 1980, protocol 1998; estates and gifts |
| France | Children one half to three quarters of the estate; spouse one quarter if there are no descendants | Community of acquisitions | Spouse exempt; €100,000 per child; 5 to 45 percent | Signed, not ratified | 1978, protocol 2004; estates and gifts |
| Austria | Half of the intestate share for descendants and spouse | Separation of property | None levied since August 1, 2008 | Not a party | 1982; estates and gifts |
| Switzerland | Half of the intestate share for descendants and spouse | Participation in acquired property | Cantonal; spouses exempt, children exempt in most cantons | In force since 2007 | 1951; estates only |
| Italy | Reserved shares for spouse and children, and for parents where there are no children | Community of property | 4 percent above €1,000,000 per heir | In force since 1992 | 1955; estates only |
| Netherlands | Children only, half of the intestate share, in cash | Limited community (marriages from 2018) | 10 and 20 percent after allowances | In force since 1996 | 1969; estates only |
Inheritance tax and estate tax
The United States taxes the estate; continental Europe mostly taxes the heir. For U.S. purposes the route by which an asset passes makes no difference: property passing by survivorship, beneficiary designation or revocable trust is taxed together with the probate assets.
The federal estate tax is charged on the whole taxable estate before distribution, at a top rate of 40 percent (IRC § 2001(c)). For 2026 each U.S. citizen or domiciliary has a basic exclusion amount of $15,000,000 (IRC § 2010(c)(3), as amended by Public Law 119-21; Rev. Proc. 2025-32), shared with the gift tax and indexed for inflation from 2027; the annual gift tax exclusion is $19,000. The marital deduction is unlimited only if the surviving spouse is a U.S. citizen (IRC § 2056(d)); otherwise it requires a qualified domestic trust (QDOT) under IRC § 2056A, and lifetime gifts to the spouse are excluded only up to $194,000 in 2026. A non-citizen not domiciled in the United States is taxed only on U.S.-situs assets, with an exemption equivalent of $60,000 (IRC § 2102(b)(1)). Several states add an estate tax, and Kentucky, Maryland, Nebraska, New Jersey and Pennsylvania levy an inheritance tax. Heirs owe no federal income tax on what they receive, and inherited assets generally take a basis equal to their value at death (IRC § 1014); inherited retirement accounts are the main exception, since distributions from them remain taxable income (IRC § 691).
European inheritance taxes are levied on each acquisition, with allowances and rates set by the relationship (Table 2), and their reach is broad. Germany taxes the entire acquisition if either the deceased or the heir is resident in Germany, and German nationals remain within that rule for five years after moving abroad (§ 2 Abs. 1 Nr. 1 ErbStG). France taxes worldwide assets received by an heir who is resident in France and has been for at least six of the preceding ten years (art. 750 ter CGI), and Dutch nationals are treated as resident for ten years after emigrating (art. 3 Successiewet 1956). An American family with a European heir can therefore owe European inheritance tax on assets with no connection to Europe.
The United States has estate tax conventions with fifteen countries, eleven of them in Europe (Table 3). The newer conventions allocate taxing rights by domicile, with tie-breaker rules and a credit for the other country’s tax; the older ones allocate by the situs of each asset. Nine give a nonresident a prorated share of the unified credit in place of the $60,000 exemption, and several give marital relief without a QDOT. Without a convention, relief depends on each country’s unilateral credit (IRC § 2014; § 21 ErbStG), and the mismatch between a tax on the estate and a tax on the heir can leave part of the burden uncredited. Domicile, situs and the conventions are treated in more detail on the firm’s pages on estate planning for non-US citizens and non-US residents with US assets, and in its article on US persons for transfer tax purposes.
Table 3. United States estate and gift tax conventions
| Country | Convention | Gifts covered | Basis | Prorated unified credit | Marital relief without a QDOT |
|---|---|---|---|---|---|
| Australia | 1953 | Yes | Situs | Yes | Not addressed |
| Austria | 1982 | Yes | Domicile | No | None in the convention |
| Canada | Income tax convention, Art. XXIX B (1995) | No | Residence | Yes | Yes, marital credit |
| Denmark | 1983 | Yes | Domicile | No | Yes |
| Finland | 1952 | No | Situs | Yes | Not addressed |
| France | 1978, protocol 2004 | Yes | Domicile | Yes | Yes |
| Germany | 1980, protocol 1998 | Yes | Domicile | Yes | Yes |
| Greece | 1950 | No | Situs | Yes | Not addressed |
| Ireland | 1949 | No | Situs | No | Not addressed |
| Italy | 1955 | No | Situs | Yes | Not addressed |
| Japan | 1954 | Yes | Situs | Yes | Not addressed |
| Netherlands | 1969 | No | Domicile | No | Not addressed |
| South Africa | 1947 | No | Situs | No | Not addressed |
| Switzerland | 1951 | No | Situs | Yes | Not addressed |
| United Kingdom | 1978 | Yes | Domicile | No | Yes |
| No convention (including Belgium, Luxembourg, Norway, Portugal, Spain and Sweden) | None | No | Domestic law of each country | No; $60,000 exemption | No; a QDOT is required |
Settling the estate
On the continent, heirs generally succeed to the estate directly, as of the date of death (§ 1922 BGB; art. 724 C. civ.; in Italy upon acceptance, art. 459 c.c.), and no court administers it. German heirs prove their status with a certificate of inheritance (Erbschein, § 2353 BGB); in France the notaire establishes it in an acte de notoriété (art. 730-1 C. civ.); in cross-border cases a European Certificate of Succession (Arts. 62 to 73 of the Succession Regulation) serves in every member state bound by the Regulation. Austria is the exception: a notary acting as court commissioner conducts a probate procedure, and the court transfers the estate to the heirs by order (Einantwortung, § 797 ABGB).
In the United States the court appoints a personal representative, who receives letters testamentary or letters of administration, collects the probate assets, notifies creditors, pays debts and taxes and distributes the remainder. Real estate in another state requires ancillary probate there. The firm’s page on estate settlements in Virginia describes the procedure there.
Neither system accepts the other’s documents. U.S. banks and transfer agents do not act on a German certificate of inheritance or a European Certificate of Succession; they require U.S. letters or, for small amounts, a state small estate affidavit. Where a non-citizen not domiciled in the United States held U.S.-situs assets worth more than $60,000, U.S. securities also remain frozen until the IRS issues a transfer certificate, unless a personal representative appointed in the United States administers them (Form 5173; Treas. Reg. § 20.6325-1). A German land registry, in turn, requires a certificate of inheritance, a European Certificate of Succession, or a notarial will with the record of its opening (§ 35 GBO); U.S. letters testamentary do not replace them. A revocable trust avoids U.S. probate but not the European procedure for assets located in Europe. The firm’s pages on non-US decedents and non-US beneficiaries address both directions.
Practical steps for families with assets on both sides
- List every asset by country and by the way it passes at death: will, survivorship, beneficiary designation or trust.
- Establish habitual residence for European succession law and domicile for U.S. estate tax, and record the facts that support each.
- Decide whether the will should choose the law of a state of nationality, and test the result against forced share claims wherever assets are located.
- Identify the marital property regime that applies today, including any automatic change after a move, and consider a marital agreement effective in both countries.
- Align beneficiary designations and joint titles with the will, name contingent beneficiaries, and provide a trust or custodian for minor children.
- Choose between one will and coordinated wills for each country, with revocation clauses that do not cancel each other, signed in a form both systems accept.
- Test any trust against the tax law of every country where the grantor or a beneficiary lives or may come to live.
- Calculate U.S. estate tax and European inheritance tax together, including the applicable convention and the non-citizen spouse rules.
- Prepare for administration: powers of attorney in the required form, apostilles, and a plan for ancillary probate and transfer certificates.
The firm advises families with assets and heirs in continental Europe and the United States on coordinated wills and trusts, marital agreements, and the estate, gift and inheritance tax consequences on both sides of the Atlantic. Its attorneys are licensed in Washington DC, Virginia, Maryland, California and Germany. Related questions are covered in the firm’s webinars.
The articles are intended for information purposes only. They should not be construed as legal advice. For a comprehensive evaluation of your individual situation please contact us at (202) 790-2500 or at info@internationalestatelaw.com for an Initial Consultation Package.
This article describes general principles and is not legal or tax advice. The result in a particular case depends on its facts, on the date of the transfer and on the law of the jurisdiction concerned. The figures given are those applicable in 2026.