Since the European Succession Regulation came into effect, the "habitual residence" of the deceased is the sole decisive criterion for determining which inheritance law applies to the case. It is no longer, as it was in the past within the EU and still is today in many countries outside the EU (and possibly in Denmark and Ireland), based on nationality.

The only exception is if a so-called "choice of law" has been made in the will, meaning that the deceased expressly stated, for example: "German law shall apply to my estate." In that case, even if the habitual residence was in Austria, German law would still apply. However, such a choice of law is only permissible in favor of the law of the deceased's nationality. So, a German national can opt for German law but not, for example, Italian law.

Otherwise, only the habitual residence of the deceased at the time before death is relevant. This habitual residence is decisive for the entire estate, regardless of how scattered it may be across the EU. This includes real estate located in another member state.

But what exactly is "habitual residence"?

The habitual residence, according to the European Succession Regulation (EUSuccReg), is the place where a person had their center of life at the time of death. It is based on the actual living circumstances, not just a formal registration or legal residence. I always ask my clients: Where was the deceased "at home"? If they were on holiday and told their relatives: "Tomorrow I’m going home!" – which place were they referring to? That is likely the habitual residence.

But let’s approach this question more systematically:

To determine the habitual residence, several factors are considered, including:

- **Duration and regularity of stay**: How long and continuously did the person live at this place?
- **Living circumstances**: Where was the center of the person's personal, family, and professional relationships?
- **Integration**: How deeply was the person integrated into the social and cultural environment of this place?
- **Intention to continue the stay**: Are there indications that the person intended to remain there permanently?

Several important aspects are considered:

The "habitual residence" is a qualitative concept, not a quantitative one! It's not about counting days in a year, but about assessing the quality of the person's stay at the place. Was it their "home"? Did they intend to stay there? The European Court of Justice speaks of the "animus manendi," the "intention to stay."

Formal aspects, such as where the person was registered, where they received their pension, or where they paid taxes, can be indicators but nothing more.

In my experience with approximately 150 cases involving the application of the term "habitual residence," I only failed once to determine the habitual residence to my satisfaction. That was because the client—the deceased's son—lived on the other side of the world and had only sporadic contact with his father. We simply lacked the factual knowledge, making it difficult to work. In that case, the decision was between Austria (our view) and Hungary (the widow’s view). This was crucial because the son had been disinherited and was now fighting for his compulsory share, which is half of the statutory share in Austria, but only one-third in Hungary. Fortunately for the son, we were able to agree on a lump sum with the opposing party, so the question of habitual residence did not need to be decided. In this case, all parties acted fairly, which is unfortunately not always the case.

The facts to determine where the habitual residence was must be provided by you. We will then evaluate them and present them to the court.

I hope these explanations have provided helpful guidance for your considerations!