For every estate and every testamentary disposition, the first step is to check which (national) law is applicable. The applicable law is quite decisive for whether, for example, testamentary dispositions have been effectively established or how the legal succession is structured, whether there are claims to a compulsory portion, etc.
Since 17 August 2015, this examination has been carried out in Austria in accordance with the European Inheritance Regulation (EU Inheritance Regulation). In the event of an inheritance, the EU Inheritance Regulation links the jurisdiction of courts and the application of substantive inheritance law to the state in which the deceased (testator) has his or her so-called habitual residence at the time of death (Art 4 and Art 21 (1) EU Inheritance Regulation).
If the circumstances as a whole at the time of death show an obviously closer connection to a country other than the country whose law would be applicable, the succession is governed by the law of that other country (Art 21(2) EU Inheritance Regulation). For example, if a deceased person has Austrian citizenship, lived in Austria all his or her life or has close ties there and has only recently moved his or her habitual residence to another country (e.g. for health reasons), this may be such a case where Austrian law continues to apply despite the habitual residence abroad.
However, any person may also make an express choice of law. Specifically, the law of the country to which the person belongs at the time of the choice or at the time of death can be chosen for the succession (Art 22 EU Inheritance Regulation). Therefore, for example, if an Austrian woman moves permanently to Spain, she may nevertheless choose the applicability of Austrian law for the succession upon death. The essential substantive issues depend on the applicable law; this also includes such important areas as the capacity to inherit, legal succession and the right to a compulsory portion. It may therefore be advisable to make a legally effective choice of law.
From an Austrian perspective, inheritance law issues in probate proceedings without an international connection will continue to be judged according to Austrian law.