Inheritance relations with a foreign element: what to keep in mind if you are a foreigner in Ukraine and a Ukrainian abroad

WHAT CHANGES IN THE REGULATION OF INHERITANCE RELATIONS IF THE TESTATOR IS A FOREIGN ELEMENT?

If the inheritance relations involve a foreign element, they will be regulated by the conflict of laws’ rules as determined by the Law of Ukraine “On International Private Law”. This law defines a ‘foreign element’ as a feature that characterizes private law relations and manifests, among other things, where at least one of the parties to such relations is a Ukrainian citizen residing outside of Ukraine, a foreigner, or a stateless person.

To determine the next steps, one must identify the country of origin of the foreign element. This could be the country of residence of the Ukrainian citizen or the country of nationality of the foreigner residing in Ukraine. If there is an agreement on legal assistance in civil (including inheritance) matters between Ukraine and the country of origin of the foreign element, the provisions of such an agreement will apply to the inheritance procedure. The reason for this being that the Law of Ukraine “On International Private Law” stipulates that when an international agreement of Ukraine provides for rules that are different from those established by this law, the provisions of the international agreement shall apply.

However, if there is no such agreement on legal assistance in civil matters between Ukraine and the country of origin of the foreign element, the inheritance relations shall be governed by the Law of Ukraine “On International Private Law”. Thus, one must turn to the conflict of laws’ rules set out by this law to determine the inheritance procedure.

Under the general principle enshrined in both most international agreements on legal assistance and the Law of Ukraine “On International Private Law”, the governing law for inheritance is primarily determined not by the person of the testator, but by the type of property being inherited – namely, movable property or real estate.

RULES OF INHERITENCE FOR MOVABLE PROPERTY AND REAL ESTATE FROM A ‘FOREIGN’ TESTATOR

As a rule, real estate is inherited according to the legislation of the state within whose territory it is situated. This rule is contained in most of the agreements and in the Law of Ukraine “On International Private Law”. The latter defines that the inheritance of real estate is regulated by the laws of the country in whose territory it is located, and for the property that is subject to official registration in Ukraine – by the laws of Ukraine.

The rules of inheritance for movable property vary. So, for example, the Agreement on legal assistance in civil and criminal cases between Ukraine and the Republic of Poland establishes that movable property is inherited in accordance with the laws of the country to which the testator was a national at the moment of his/her death. Thus, if a national of Ukraine has been living in Poland and has died there, the heirs shall inherit all the movable property according to the rules established by the Ukrainian legislation. At the same time, the Agreement on legal assistance in civil cases between Ukraine and the Republic of Cyprus states that movable property is inherited in accordance with the legislation of the country in whose territory the testator had his/her last permanent place of residence. Thus, if a national of Ukraine has been permanently residing in Cyprus and dies there, the inheritance of his/her movable property shall be subject to the laws of Cyprus.

The Law of Ukraine “On International Private Law”, that applies when there is no agreement between Ukraine and the country of origin of the foreign element, provides that the inheritance relations are governed by the laws of the country in which the testator had his/her last place of residence, unless the testator chose in his/her will the laws of the country of which he/she was a national.

Thus, to determine which jurisdiction’s laws will govern the inheritance of certain property, one should first determine which property is seen as ‘movable’ or ‘real estate’ under the laws of the country of their residence.

HOW CAN A UKRAINIAN CITIZEN DRAW UP A WILL ABROAD? IS IT NECESSARY TO TRAVEL TO UKRAINE FOR THIS?

The answer is ‘no’. To draw up a will abroad a Ukrainian citizen (as well as a foreigner residing in Ukraine) does not have to return to the country of their nationality.

There are several other options to choose from. Of course, Ukrainian consulates in the country of one’s residence are entitled to perform such a notary action such as notarization of a will. Therefore, one can turn to the consulate, where a will can be drawn up, notarized, and registered in compliance with the Ukrainian legislation.

However, as we all know, nowadays, it might be difficult to receive consular services in countries that host a large number of Ukrainian citizens, and one might need to wait six months for a free slot in the online system to make an appointment. With this in mind and considering that at times drawing up a will might be a pressing issue, Ukrainian citizens abroad might choose to turn to a notary or another official who is authorized with certifying wills and testaments in the respective jurisdiction.

Before drawing up a will, though, one should determine by the laws of which jurisdiction it shall be governed, and therefore, which provisions it must comply with, in order to be valid and enforceable.

If there is an international agreement in place between Ukraine and the country of residence of the testator, one must turn to the provisions of such an agreement to determine which jurisdiction’s laws will apply. For example, according to the Agreement between Ukraine and Cyprus, the form of the will is determined either by the laws of the testator’s country of nationality or by the laws of the country where the will is drawn up. Thus, if a Ukrainian citizen is drawing up a will in Cyprus, the form and requirements for the will shall be established – by the choice of the testator – under either Ukrainian or Cypriot law.

Where there is no international agreement in place, the will must be drawn up according to the laws of the country of residence of the testator. Therefore, should a Ukrainian citizen, who permanently resides, for example, in Spain, with which Ukraine does not have an agreement on legal assistance, wish to draw up a will there, the requirements for the form of the will and the procedure of drawing up a will are determined by the laws of Spain. The same applies to foreigners in Ukraine, whose laws define that the requirements for a will are provided for by the laws of the country in which the testator had their permanent residence when drawing up the will or at the moment of the testator’s death.

Anyway, the testator must not worry about the will complying with the legislation of the country where it will be enforced. A will cannot be invalidated for reasons of defective form, if the form of the will complies  with either the laws of the country where it was drawn up, or the laws of the testator’s nationality, or the laws of the testator’s usual place of residence at the moment of drawing up the will, or at the time of their death, as well as the laws of the country in whose territory the real estate is located.

HOW WILL UKRAINIAN HEIRS FIND OUT ABOUT THE EXISTENCE OF A WILL THAT WAS DRAWN UP ABROAD?

Of course, it is possible to find out about the existence of a will that was drawn up abroad. If the testator failed to inform anyone about the existence of the will, or to appoint an executor for the will, it is entirely feasible to find out about the existence of a will that was drawn up abroad through international mechanisms for registration of wills.

Ukraine is party to the Convention on the Establishment of a Scheme of Registration of Wills, which provides for a registration scheme enabling a testator to register their will to reduce the risk of the will remaining unknown or being found belatedly, and to facilitate the discovery of the existence of this will after the death of the testator. This means that a will that was drawn up in the territory of the signatory states to this Convention can by application of the testator or the notary (or anybody authorized to certify a will) be registered with the Inheritance Register of Ukraine and therefore the notary who will open and handle the respective inheritance case will be aware of the existence of the will.