Succession of Multijurisdictional Estates: Conflict of Laws, Conflict of Jurisdictions and Substantive International Regulatory Treatment

Novikov Vladislav Sergeevich ORCID: 0000-0002-4715-9751 Postgraduate Student, Department of International Private and Civil Law named after S.N. Lebedev, MGIMO University 119454, Russia, Moscow, Prospect Vernadskogo, 76 vladislavnovikov077@gmail.com Other publications by this author

Conflict of laws rules determine what legal effect the competent authority^[1] will give to the fact of the presence of a foreign element in the case when determining the law to be applied to specific relations. In the field of international (cross-border) inheritance, conflicts of legal systems arise when a certain person has property in a jurisdiction other than the State of his citizenship or permanent residence, or when a person has other sufficiently significant contacts with more than one jurisdiction. The purpose of this article is to consider individual problems of cross-border inheritance and approaches to their solution in the aspect of private international law.The significance of the location of property in international inheritance cases.

 Suppose the testator is a citizen of Russia and for a long time actually lives on the territory of Russia, but subsequently transfers the center of vital interests to another country. The testator passes away and leaves an order in case of death in respect of all property belonging to him, including movable property and real estate in Russia. The order is executed in accordance with the rules of a foreign jurisdiction, which relate to the form and procedure for making a will. The testator has a significant connection both with the legal order of Russia, where he lived for a long time and left real estate, and with another state, which became his usual place of residence. In a foreign jurisdiction, a judicial procedure is used to confirm the validity of a will, which is carried out after the opening of an inheritance (probate)^[2]. A judicial act of a foreign law enforcement agency that meets the general requirements of Article 106 of the Fundamentals of Legislation on Notaries^[3] must be submitted in the proceedings on inheritance in Russia along with a will. When accepting a will made abroad, the notary will have to determine its formal validity^[4], but for this he needs to answer the question by what right he will establish the validity of this document. Inheritance relations are determined by the law of the country where the testator had his last place of residence, and inheritance of immovable property is determined by the law of the country where this property is located or entered into the state register (paragraph 1 of Article 1224 of the Civil Code of the Russian Federation). Thus, in the part concerning the disposal of movable property, a foreign court will be competent in accordance with the instructions of the conflict of laws rule. The presentation of an apostilled decree of a foreign court confirming the validity of the will and its belonging to a specific person will be sufficient proper confirmation of the hereditary rights to movable property of the persons specified in the decree in the framework of inheritance proceedings opened by a notary in Russia. Thus, a national certificate of the right to movable property as part of an inheritance can be issued in Russia on the basis of an apostilled foreign judicial act. In the part concerning the disposal of immovable property, a notary in Russia will be competent insofar as the property is located on the territory of Russia or is entered in the state register in Russia.

In another case, let's assume that the testator is a citizen of the Russian Federation, but permanently resides in another country. The testator passes away without a will, leaving movable property in various states. Suppose that in the Russian Federation, as well as in the country of permanent residence of the testator, inheritance relations are determined by the law of the country where the testator had the last place of residence at the time of the opening of the inheritance. At the same time, in the state where the movable property is located, there is another conflict of laws binding: the law of the country whose citizenship the testator had at the time of the opening of the inheritance applies to inheritance relations ^[5]. Thus, in accordance with the conflict of laws ties of the Russian Federation and the foreign state where the testator permanently resided, the law of the testator's last place of residence should be applied to the inheritance of movable property (including all countries where such property is actually located), but regardless of this, the court of the country where the movable property is located may apply the law of the Russian Federation (as the right of citizenship of the testator) to determine the relationship in connection with inheritance by law: at the same time, if a court in such a country takes into account not only the conflict of laws rules, but also the law of the Russian Federation as a whole, then it is possible that the court may conclude that the relationship inheritance of the right of the jurisdiction that is the testator's last place of residence.

Consider the new factual circumstances. Suppose that the testator, who is a French citizen, permanently resides in the state of New York and after death leaves securities in a brokerage account in the state of New York. According to the terms of the testamentary disposition, executed according to the laws of the state of New York, all the estate of the testator must pass to his surviving spouse ^[6] bypassing the heirs by law - 2 children of the testator. According to French law, such an order will be invalid, since Article 913 of the Civil Code of France provides that children in this case have the right to inherit a mandatory share in the amount of 2/3 of all hereditary property, regardless of the share of the surviving spouse in the common property of the spouses^[7]. At the same time, under the law of New York, by virtue of the principle of absolute freedom of will ^[8], such disposal of property is legally valid. If the testator's children apply to a New York court to challenge the death order, the court will decide which State's law should regulate the relationship (including the issue of the validity of the testamentary disposition). According to the law of the state of New York, inheritance relations are determined by the law of the country where the testator had his last place of residence at the time of death^[9] (and where during his lifetime during periods of absence he had a permanent intention to return^[10]). Thus, the law of the state of New York will be subject to application, and the death order will be recognized as valid.

The examples given indicate that the inheritance of property located outside the main jurisdiction depends on the rules of which legal system will be applied to the relationship in accordance with the instructions of the conflict of laws rules of the location of the property^[11]. Today, one of the main and immutable conflict of laws principles in Russia and the United States is that the relationship of inheritance of movable property is determined by the law of the country in which the testator had his last place of residence; the relationship of inheritance of real estate is regulated by the law of the country where the property is located or entered into the state register ^[12]. When determining the applicable substantive legal norms, the court may pay attention to the essential interests of various legal systems^[13].

In the aspect of international civil procedure, it is important to understand that the courts of the State in which the immovable property is located, as a rule, have exclusive jurisdiction over such property^[14]. The power acts of the state operate within its territory, i.e. the space over which its sovereignty extends^[15]. The above applies to both regulatory and law enforcement (including judicial) acts. For the above reasons, the appeal of a decision made by a court of one state to enforcement on the territory of another state is permissible only with the consent of the latter^[16]. In the practice of cross-border inheritance, it is important to take into account that the decisions (rulings) of a court considering a dispute over real estate do not always relate to the rights to property located in a foreign jurisdiction, since the courts of the country where such property is located may refuse to recognize the decision of a foreign court (at least in part concerning property that is located in spatial within the limits of the power of this state).

The importance of dividing things into "movable" and "immovable" in matters of international inheritance. The supreme and traditional classification of property is its division into two main types - movable and immovable - depending on the natural properties of objects. In all legal systems, real estate includes land and objects that are inseparable from the land plot and are firmly connected with it, that is, objects that cannot be moved without disproportionate damage to their purpose. However, there are differences in qualifications in national legal systems. In order to come to any conclusion, the law enforcement officer "measures" the actual circumstances of the case with the help of a number of legal categories that allow recognizing the essence of the dispute in question in the interweaving of various elements. Categories such as mortgages (mortgages of real estate), a share in the right of common ownership of the property of a real estate owners' partnership, the right to lease real estate, the rights of participants in housing cooperatives, depending on the specifics of the jurisdiction, can be qualified by a law enforcement officer either as movable property or as an essential component of real estate. For example, in the United States, immovable property can be reclassified as movable on the basis of the doctrine of "equitable conversion" if the immovable property at the time of the owner's death is the subject of a valid contract of sale^[17]. In some states, special legislative acts have been adopted on the qualification of property in inheritance cases. For example, in New York, for these purposes, real estate refers to a plot of land or a title to land, including the right to lease (leasehold), its essential components firmly connected with the land plot^[18] (fixture), mortgage or other encumbrances of the plot; movable property refers to any property that is not related to real estate, including tangible and intangible (disembodied) things^[19]. At the same time, the law separately stipulates that the qualification of property is carried out according to the law of the country where the property is located. In some jurisdictions, it is allowed to predetermine the results of the qualification of property as movable or immovable by changing the method (form) of actual possession by exercising ownership of property through a special corporation (or holding company) managing a portfolio of real estate objects. For example, Canadian citizens who own real estate in the United States, guided by considerations of tax savings, own such real estate through an irrevocable discretionary trust (Canadian resident irrevocable discretionary trust), corporation or partnership^[20], which allows from a legal point of view to consider such property movable.

The range of issues regulated by the rules of the hereditary statute depends on what kind of property is in question. As a rule, the hereditary statute in respect of immovable property is determined by the law of the country where the real estate is located (paragraph 1 of Article 1224 of the Civil Code of the Russian Federation), respectively, the formal and material validity of death orders in respect of real estate will be determined by the law of the location of this property^[21]. For movable property, the hereditary statute (including the issue of the validity of the testamentary disposition) will be determined by the law of the country where the testator permanently resided at the time of death^[22]. On the basis of these fundamental principles, issues such as the ability to make a will, the interpretation of a testamentary disposition, the rights of the surviving spouse during inheritance ^[23]; the circle of heirs by law and the size of their shares in the inheritance right ^[24] will be determined. The State where the immovable property is located, as a general rule, will apply its own rules of law to the relevant relations^[25], but at the same time may apply foreign law^[26]. In the USA, by virtue of the fundamental principle, the testator has almost absolute independent discretion with regard to the transfer of his own property by inheritance, in connection with which he can independently choose the substantive law applicable to the disposal of property in the event of death^[27]. In Russia, such an opportunity is not provided (Clause 2 of Article 1224 of the Civil Code of the Russian Federation). New York, Florida, Illinois, New Jersey and Connecticut have adopted special legislative acts that allow persons who do not have domicile in the United States to choose the law of the relevant state as applicable to death orders if the property is located in the state^[28]. At the same time, there are objective boundaries beyond which the court will not be able to go, assessing the clause on applicable law included in the testamentary disposition: for example, it is not allowed to determine the validity of a testamentary trust under the law of a country with which the trust does not have any significant contacts.

In the case of immovable property, the reservation that the law of the country where the property is located should be applied is apparently due to practical considerations that the relevant jurisdiction has the most significant interest in controlling the transfer of immovable property to heirs by universal succession. On the other hand, it is possible to imagine a situation where the State where the testator had his last place of residence will have a much greater political and legal interest in matters of inheritance of such real estate, especially in determining the share of the surviving spouse and children of the testator in the right to this property. Despite this, the courts in the USA quite consistently adhere to the principle of splitting the hereditary statute^[29], and in some states this principle has been elevated to law^[30]. In Russia, due to the fact that movable property is subject to the law of the testator's permanent residence at the time of his death, and real estate is subject to the law of the location of the property, each of the components of the inheritance is subject to a separate legal order in terms of the attachment formulas used, and therefore legislation in this part is also based on the principle of splitting the hereditary statute: the statutes will differ in cases where the real estate included in the inheritance will be located in a state other than the country of permanent or preferential residence of the testator at the time of the opening of the inheritance. 

In the USA, there has been a trend of gradual weakening of formal conflict of laws principles and greater consideration of the real interests of the relevant jurisdictions (the principle of determining the jurisdiction with the prevailing interest - interest analysis^[31]). This trend is reflected in the Second Regulation "On Conflicts of Laws" of 1971, which establishes an open list of factors that influence the choice of applicable law. According to this document, the court, taking into account constitutional restrictions, must follow the instructions of its own conflict of laws law, but if there is no such indication, the following factors should influence the choice of applicable law: the needs of the interstate and international systems; the legal policy of the country (jurisdiction) of the court (the relevant policies of the forum); the legal policy of the states (states) concerned and their respective interests in resolving this or that issue (the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue); the protection of justified expectations (the protection of justified expectations); the basis of the policy of law, underlying a particular area of law (the basic policies underlying the particular field of law); certainty, predictability and uniformity of result (certainty, predictability and uniformity of result); ease of establishing and applying law (ease in the determination and application of the law)^[32]. It is possible to supplement this list in relation to the field of cross-border inheritance: 1) the place that the testator considered his home and where he permanently or predominantly resided at the time of death; 2) the location of the testator's property; 3) the testator's choice of the law applicable to inheritance issues.

The significance of determining the testator's place of residence in international inheritance cases. In Russia, as a general rule, the qualification of the concept of residence is carried out in accordance with national law, unless otherwise provided by law (paragraph 1 of Article 1187 of the Civil Code). Consequently, a Russian law enforcement officer, for example, a notary, for the purposes of determining the right competent to regulate the inheritance of movable things and other property not related to real estate, must establish in which state the testator permanently or predominantly resided at the time of the opening of the inheritance. In order to establish the existence of a legal connection of a person with a certain State, it is necessary that the person has been in the country for a sufficiently long period of time on a legal basis. For example, in Russia, the criterion of permanent residence on the territory of the state is met if a person has a residence permit, while no legal significance is attached to the person's intention to acquire a domicile in the country. The law and order governing inheritance relations may coincide with the personal law of the testator (Article 1195 of the Civil Code) if the testator permanently resides in the territory of the State of his citizenship.

To establish the personal law of an individual in the countries of the Anglo-American legal tradition, the criterion of the person's place of residence /domicile (lex domicilii) is applied. In the States of the Romano-Germanic legal tradition, the principle of domicile has a subsidiary meaning and is applied in cases where we are talking about stateless persons or persons with several nationalities (for example, paragraphs 4 and 5 of Article 1195 of the Civil Code of the Russian Federation). At the same time, it should be noted a significant increase in the role of the criterion of a person's place of residence both in Russian conflict of laws legislation and in the legislation of a number of European countries, since the application of this criterion can often contribute to the choice of the rule of law of the state with which the person actually has the most stable close relationship.

In conditions of increasing migration of the population, the principle of citizenship of a person does not always ensure the application of the legal system that has a real connection with the legal relationship. In Russia, in the field of inheritance, the limits of application of the law of a person's place of residence have been expanded: according to Article 1224 of the Civil Code of the Russian Federation, the law of the country where the testator had his last place of residence (lex domicilii) applies to inheritance relations. In the USA, the personal law of an individual is the law of the state where this person has a domicile^[33]. Suppose a German citizen permanently resides in the state of New York, dies in New York and leaves movable property in England, where the law of domicile is considered the personal law of an individual. Accordingly, a court in England will apply the law of the state of New York to the inheritance of movable property. If the deceased also leaves movable property in France, where the personal law of an individual is the law of citizenship, a court in France will apply German law to the relationship of inheritance of this property.

Determining the testator's place of residence is of extremely important practical importance along with the criterion of the location of the property.

In the USA, a place where a person permanently and predominantly resides is understood as a place where his family life, social and civic activity is concentrated^[34].  According to the law of the state of New York, a domicile is a place that a person considers his permanent home (permanent home) - a place where a person has a permanent intention to return during periods of absence ^[35]. If a person sells the premises in which he permanently resides, acquires residential real estate abroad and moves to the relevant foreign jurisdiction with the intention of permanently leaving New York, then it should be assumed that such a person has lost his domicile in New York^[36]. However, if a person moves to a foreign jurisdiction to perform a certain labor function, and then returns to the United States after a certain time, the domicile remains even if the person sells his living space in New York for the purpose of moving ^[37].

Domicile is confirmed by physical presence in the jurisdiction (physical presence) and the presence of the intention to remain in this jurisdiction indefinitely (intention to remain there indefinitely)^[38]. Thus, the mere physical presence of a person ^[39] in a certain place without the intention to stay there indefinitely, as well as the presence of this intention, not supported by a real actual presence, will not allow us to conclude that this place is the domicile of the person. If a person can prove that there is an intention to stay in a certain place indefinitely, he will not need to maintain any length of actual stay in this place provided for by law in order to meet the criterion of physical presence^[40]. At the same time, the substantial duration of the person's actual stay in a certain place may additionally indicate that this place is the domicile of the person. Factors that may indicate a person's domicile:

•location of a person's residential property, taking into account differences in the cost of apartments;

•a place where family members of a person permanently and predominantly reside;

•the location of personal property, for example, a collection of art objects of considerable value;

•center of business interests and entrepreneurial activity of a person;

•the place where the person is registered as a voter (electoral district);

•the place where a person has been issued a driver's license and where he has the right to drive a vehicle;

•documents in which a person independently confirms^[41] information about the place of his permanent residence (will, constituent documents of a personal holding structure, visa application);

•a place where a person is assigned to a certain religious parish or public organization;

• the place where a person during his lifetime designed for himself a plot for burial (burial).

In the case of Nienhuys v. Commissioner, a Dutch citizen arrived in 1940 on the territory of the United States for commercial purposes as part of a business trip, but was unable to return to his country due to the invasion of the German armed forces on the territory of the Netherlands. Due to circumstances of force majeure, he was forced to stay in the United States until his death in 1946. After the war, he had every chance to return to the Netherlands, but as a result of the actions of the Dutch government, entry into the country was restricted due to the food crisis and a shortage of fuel resources. Based on evidence of the intention and conscious desire of the testator to return to his country of origin and the absence of attempts on his part to change his domicile, the deceased was recognized as a nonresident alien ^[42]. The status of a non-resident foreigner implies that such a person is obliged to take into account the total (gross) income for the purposes of personal income tax: 1) any income that is directly connected (effectively connected) with the conduct of trade or business activities in the United States ^[43], as well as 2) fixed, calculated for a certain period, annual and regular income from sources in the United States (FDAP income), the amount of issue discounts (original issue discount), income from sales capital assets, regardless of whether the taxable income is related to the conduct of commercial or business activities in the United States^[44]. The principle of withholding income from the source is applied to certain income from sources in the United States, in other words, in such cases, the taxpayer, with rare exceptions, is not required to file a tax return, but also cannot apply tax deductions.

The Anglo-American common law system distinguishes between domiciles by origin (domicile of origin) and domiciles by choice (domicile of choice). According to this concept, no person can be without domicile: a legitimate child has the domicile of the father, and a child born out of wedlock has the domicile of the mother^[45]. If a person leaves the country of his domicile by origin, he does not lose it until he acquires a domicile of his choice in another country. If a person leaves the jurisdiction of his domicile by choice, with the intention of never returning to it again, he immediately loses his domicile in this country and has his domicile by origin before acquiring a new domicile by choice. In the presence of actual circumstances and the desired intention, the spouses may have different domiciles^[46]. As a general rule, minors are assigned the domicile of their parents, and in the case of separation of spouses, the domicile of the parent with whom the child actually lives is recognized as a minor^[47]. A person retains domicile by origin until he changes his intention regarding jurisdiction and establishes a new domicile of his choice^[48]. In the USA, after a person leaves the state of his domicile with the intention not to return to it again, he does not lose this domicile until he acquires a new domicile^[49]. In England, on the contrary, a person may lose his former domicile without establishing a new domicile of choice, while before acquiring a new domicile of choice, the person will have his domicile of origin (reverts to her domicile of origin)^[50]. As a result, this means that a person who has a domicile of origin in the USA can acquire a domicile of choice in England, and then leave England with the intention not to return to it again and not to acquire a new domicile of choice. In this case, such a person, in accordance with US law, will be considered domiciled in England, and under English law, he will be considered as a person domiciled in the USA^[51]. 

If a foreigner has the intention to stay in the United States for an indefinite time, he acquires a domicile regardless of the fact that:

• entry into the country was carried out as a result of illegal crossing of the US border without valid documents or proper permission to enter^[52];

• entry into the country was carried out on a nonimmigrant visa G-4^[53] (the type of visa that employees of an accredited international organization are entitled to receive);

• Entry into the country was carried out on a nonimmigrant visa A-1^[54] (a special type of visa for government officials and diplomats entering the United States for official government business).

Foreign citizens can actually stay in the United States for a long period of time, for example, as persons employed by a foreign organization. Having the intention to leave the United States permanently upon retirement, these persons do not acquire domiciles in the United States. Foreign citizens who have spent a significant period of time in the United States as employed persons, but have not acquired the status of resident alien status, often face certain obstacles to staying in the United States after retirement^[55]. Similarly, foreign citizens can regularly visit the United States and stay in this territory for certain periods in the tax year, but not change their domicile. In the Estate of Paquette case, the Florida Tax Court faced the question of how close the contacts of a Canadian citizen with the jurisdiction of the court were. Having found no evidence that this citizen has an intention to change his usual place of residence (change his place of abode), the court pointed out that the fundamental principle of US law should be considered that the domicile once acquired by a person remains with him until the person's explicit intention to leave the country of his domicile is discovered^[56].

The concepts of domicile are not brought to a universal and uniform understanding and differ in significant features in different jurisdictions. This means that applying the norms of private international law, the court will establish domiciles based on the definitions and criteria of its own law and order^[57]. Establishing the true domicile of a person will be practically difficult if the person has significant contacts with more than one jurisdiction: in these circumstances, each of the jurisdictions will potentially be able to recognize itself competent to consider the case^[58].Reverse reference in the practice of international inheritance.

 As follows from the above, in cases of cross-border inheritance, the law enforcement officer may inevitably face the question of what legal norms should regulate the relationship that has arisen that goes beyond the jurisdiction of one state - his own or foreign, and if foreign, what principles should be guided when choosing these norms. On the basis of conflict of laws rules, the competent authority determines which national legal order will regulate essentially a private relationship complicated by a foreign element (lege causae), in other words, a court or other competent authority establishes a statute of hereditary relationship. At the same time, the court, when analyzing conflict of laws rules, may face the problem of determining the scope in which a foreign law should be applied: whether the indication of a conflict of laws rule should be understood only as an indication of a foreign substantive law or as an indication of a set of substantive and conflict of laws rules of foreign law, i.e. the foreign legal order as a whole (renvoi, Gesamtverweisung). The effect of the reverse reference is traditionally significantly limited in US law, and the courts adhere to the first approach: the indication of a conflict of laws rule is usually understood as a reference exclusively to foreign substantive law without taking into account conflict of laws factors^[59]. Anglo-American researchers note with irony that the doctrine of backward reference (renvoi) is popular, but in fact very unsuccessful and regrettable^[60]. At the same time, there are exceptions in US law to the general rule of non-application of the doctrine of back-reference^[61].

The result of using the renvoi doctrine may be that the conflict of laws rules of a foreign legal order will indicate the need to apply the law of the country where the court is located (back reference), the law of a foreign jurisdiction or the law of a third country (further reference). Suppose that a Russian citizen permanently residing in the territory of the state of his citizenship has passed away, leaving movable and immovable property in a foreign jurisdiction where the renvoi doctrine is recognized. Applying its own rules of private international law, a foreign court refers to the law of citizenship of the testator "as a whole", i.e. including components of conflict of laws regulation. According to the conflict of laws principles of the Russian Federation (Clause 1 of Article 1224 of the Civil Code of the Russian Federation), a foreign court will have to apply its own rules of law in relation to the inheritance of real estate and the material norms of the Russian Federation to the inheritance of movable property.

Part Three of the Civil Code of the Russian Federation is an example of a general negative approach to backlink (Article 1190 of the Civil Code of the Russian Federation). Suppose that the testator, who permanently resided in Russia, died, leaving real estate in Germany^[62]. According to Article 1224 of the Civil Code of the Russian Federation, the inheritance of real estate located in Germany should be subject to the substantive law of Germany. At the same time, according to Article 21(1) of EU Regulation No. 650/2012^[63], the law of the country in which the testator had his usual place of residence at the time of death applies to "inheritance relations in general", in other words, the law of Russia should be applied to all inheritance, regardless of the type and location of the property. The law enforcement body in Russia will not take into account foreign conflict of laws, and the reference of foreign law (approx. - EU Regulation No. 650/2012) to the law of Russia in the field of inheritance will not be effective. If the competent German authorities accept the reference of the Russian conflict of laws rule to German law on the basis of Article 34 of EU Regulation No. 650/2012, then the conflict of laws will be resolved^[64]. If there is a reverse reference of foreign law to German law, the German law enforcement authority will accept such a reference, especially if it will contribute to the unity of the principle of universal hereditary succession. However, according to Article 34(2) of EU Regulation No. 650/2012, the application of the renvoi doctrine is excluded in respect of certain rights (art. 21(2), 22, 27, 28( b), and 30 of EU Regulation No. 650/2012).

International legal acts in the field of international inheritance. EU Regulation No. 650/2012 of the European Parliament and of the Council of the European Union "On jurisdiction, applicable law, recognition and enforcement of decisions, adoption and execution of notarial acts on inheritance issues, as well as on the creation of a European Certificate of Inheritance"^[65], which contains rules on international inheritance with the participation of residents, is in force on the territory of the European Union. Of the European Union, and applies to cases of inheritance discovery after August 17, 2015^[66]. The scope of EU Regulation No. 650/2012 includes exclusively issues of the transfer of property and property rights in the order of universal hereditary succession (taxation issues, legal regimes of marital property and creditors' rights are not covered by the Regulation - art. 1(1), 1(2)( d) the Regulations and notes (45), (46) to the Regulations). Prior to the adoption of EU Regulation No. 650/2012, cross-border inheritance presented significant difficulties in the EU, especially in cases where the testator owned real estate on the territory of several EU Member States: in accordance with the lex loci principle, the law of the country in which the property is located should be applied to inheritance relations, regardless of personal interests and intentions the testator, the country of his citizenship or usual place of residence. Thus, quite often in practice, heirs had to take part in parallel proceedings in different jurisdictions on the same inheritance case. EU Regulation No. 650/2012 unifies the issues of international inheritance in the countries of the European Union and takes precedence in the EU countries in comparison with national conflict of laws rules. For example, according to article 25 of the Introductory Law to the Civil Code, succession in case of death is determined by the law of the State of which the testator was a citizen at the time of his death, but at the moment EU Regulation No. 650/2012 has changed this rule.

In accordance with Article 21 (1) of EU Regulation No. 650/2012, the law of the country in which the testator had his usual place of residence at the time of death (habitual abode/habitual residence) applies to inheritance relations as a whole (the succession as a whole). According to Article 4 of EU Regulation No. 650/2012, the law enforcement body of this country, within the framework of a specific case referred to its competence ^[67], will consider all issues of inheritance as a whole (succession as a whole). If the testator's usual place of residence at the time of death was outside the European Union (Article 10 (1)(a) of the Regulation), then the law of the EU Member State where the deceased's assets are located and of which the deceased was a citizen, or the law of the EU Member State where the testator had his usual place of residence, will generally apply to inheritance residence during the 5 years preceding his death (art. 10 (1) (b) of the Regulations). According to Article 21(2) of EU Regulation No. 650/2012, by way of exception, if, based on the totality of the circumstances of the case, it is established that at the time of death the testator was clearly more closely connected with a State other than the State of his usual place of residence, then applicable to inheritance as a whole will be the law of another state. Article 21 of the EU Regulation No. 650/2012 does not contain provisions concerning the law applicable to the inheritance of corporate rights of participation in business companies and partnerships, respectively, the determination of the ability to inherit such rights and the order of succession will be determined in accordance with the law of the country in which the real management center of the legal entity is located (the body that has a decisive influence on the management of affairs company (Sitz)), or the law of the state in which the registration formalities necessary for the creation of a new legal entity were completed.

The most important are the provisions of Article 22 of EU Regulation No. 650/2012, according to which a person can choose the law applicable to universal hereditary succession. The testator can choose the right of the State whose citizenship he has at the time of choice or at the time of death. For example, a German citizen who also has citizenship of other states can choose the right of any country of which he is a citizen at the time of choice or at the time of death. The choice of right is explicitly indicated in the disposal of property in the event of death (die Verf?gung von Todes wegen). The legal validity of such an order containing provisions on the applicable law is determined in accordance with the chosen law. These provisions mean that the testator, who permanently resides in a country where strict rules on mandatory share in inheritance traditionally apply, has the opportunity to exclude the application of these rules if he chooses the law of the country of his citizenship, where the institution of mandatory share is not recognized, as the law applicable to inheritance in general.

Thus, there are two fundamental principles in international inheritance in the EU: the unity of the hereditary mass (Nachlasseinheit) and all inheritance relations of property; the principle of the testator's usual place of residence (gew?hnlicher Aufenthaltsortsprinzip). The Regulation provides limited options for choosing the applicable law, since such can only be the right of citizenship of the testator.

According to Article 27 of the EU Regulation No. 650/2012, the disposal of property in case of death, made in writing, has formal validity if the form of the disposal corresponds to the law:

(a) the country in which the order was made or the agreement on succession was concluded (agreement as to succession);

(b) the country of which the testator was a citizen at the time of the execution of the order or at the time of death;

(c) the country of which at least one participant in the agreement on hereditary succession was a national at the time of conclusion of such agreement or at the time of death;

(d) the country in which the testator had domicile or habitual residence at the time of making the order or at the time of death;

(e) a country in which habitual residence or domicile was held by at least one of the parties to the agreement on hereditary succession at the time of conclusion of such agreement or at the time of death;

(f) with respect to immovable property - the law of the State in which the property is located.

It should be noted that the issues of formal and material validity of death orders are also defined in the 1961 Convention "On the Conflict of Laws concerning the Form of Testamentary Dispositions"^[68].

Further, according to Article 24 of the EU Regulation No. 650/2012, in terms of issues concerning material validity (admission and substantive validity), the law of the country in which the testator had his usual place of residence at the time of the relevant order is applied to the disposal of property in the event of death or to its cancellation (with the exception of agreements on hereditary succession). 

According to Article 25 of EU Regulation No. 650/2012, the law of the country in which the testator had his usual place of residence at the time of conclusion of such an agreement applies to the inheritance contract. The applicable law defines issues related to the substantive validity and binding effect of the agreement, including the terms of its termination (dissolution).

Convention "On the Conflict of Laws concerning the Form of Testamentary Dispositions", dated October 5, 1961. In a number of countries, in order to complete the execution of a testamentary disposition, it is required that after the opening of the inheritance, a special judicial procedure for the certification and confirmation of the will (probate) be carried out. If the testator permanently resided before his death in such a country, then the law enforcement authorities of this country will have the main competence to consider the case (primary jurisdiction, original probate, jurisdiction of the primary administration of the estate). If the inheritance estate includes immovable property located outside the main jurisdiction, then in this case there will be a need for an ancillary probate procedure in the relevant jurisdiction at the location of the real estate. An additional judicial or administrative procedure (ancillary probate) is aimed at approving the legal title to immovable property at its location by making appropriate entries in state registers. In many countries that do not belong to the common law system, other procedures for checking wills for their validity are carried out, therefore ancillary probate proceedings in such countries are possible only if there is an appropriate apostilled judicial act confirming the validity of the will and the will belonging to the testator. Such an act will be acceptable proof of the inheritance rights of the persons indicated in it in the framework of an inheritance case opened in Russia or another jurisdiction where, as a rule, a judicial probate procedure is not carried out ^[69]. Ancillary proceedings in an inheritance case inevitably involve additional costs, especially in cases where in a certain jurisdiction it is provided by law that the management of the inheritance estate can be carried out exclusively by a resident of the country^[70]. In addition, a situation is quite acceptable when the inheritance process during auxiliary procedures will become significantly burdensome from the point of view of disclosure of information about all assets of the testator. Persons who are domiciled in a common law country, but have real estate located on the territory of the State of the Romano-German legal family, in practice use legal mechanisms to prevent the initiation of ancillary proceedings in an inheritance case and, as a consequence, complication of the process of international inheritance.

Such mechanisms include:

• revocable lifetime trust (revocable inter vivos trust^[71]): due to the fact that the trustee (trustee) has a legal title to the property transferred to the trust, after the death of the founder of the trust, there is no need for ancillary proceedings in the inheritance case;

• joint equal ownership of common property on the basis of a single proprietary title belonging to several persons (joint tenancy^[72]): in the event of the death of one of the participants in the common property, his rights pass to other participants, and not to the heirs of the deceased.

In international practice, there are cases when a testamentary disposition is executed in accordance with the legislative requirements of one state, but concerns property located in another jurisdiction. In the practice of international inheritance, as a rule, it will be impossible or, at least, extremely difficult to execute such a will. Similarly, this applies to acts of cancellation of wills and other dispositions of property in the event of death^[73].  The lack of uniformity at the international level on the validity of testamentary dispositions and conflict of laws regulation of inheritance relations required the creation of a number of international conventions, along with the already mentioned EU Regulation No. 650/2012. The conflict of laws rules, which allow to further establish the compliance of the testamentary disposition with the requirements of legislation, i.e. to determine its validity, are contained in the Convention "On the Conflict of Laws concerning the Form of Testamentary Dispositions", dated October 5, 1961^[74].

According to Article 1 of the 1961 Convention, a testamentary disposition has formal validity if it meets the requirements of the law of the country:

• whose citizenship the testator had at the time of death or at the time of making a will;

• in which the will was executed;

• in which the testator was domiciled or had an ordinary place of residence at the time of death or at the time of making a will;

• with respect to immovable property - the law of the country where such property is actually located.

An obvious distinguishing feature of the 1961 Convention is that a will is recognized as valid only on formal grounds, i.e. in case of compliance with the requirements for making a will. 

The 1961 Convention has been signed and ratified in the following countries: Albania, Antigua and Barbuda, Armenia, Australia, Austria, Belgium, Bosnia and Herzegovina, Botswana, Brunei Darussalam, Croatia, Denmark, Estonia, Fiji, Finland, France, Germany, Great Britain, Greece, Grenada, Ireland, Israel, Japan, Lesotho, Luxembourg, Montenegro, Mauritius, Netherlands, Norway, Poland, Republic of Moldova, Serbia, Slovenia, South Africa, Spain, Swaziland, Sweden, Switzerland, Republic of North Macedonia, Tonga, Turkey, Ukraine.

Italy and Potugalia have signed but not ratified the Convention.

The 1961 Convention can be applied to cases of inheritance discovery even in situations where the testator is a citizen of a country that has not signed or ratified the Convention. For example, despite the fact that Russia and the United States have been participating in the Hague Conference for a long time, these countries have not signed the 1961 Convention, but the provisions of the Convention may affect citizens of these countries if the testator has a habitual residence or property in the territory of a State participating in the Convention. If a Russian citizen who had his usual place of residence in France passes away, leaving movable property in Moscow, then according to French law (including the 1961 Convention, since it was signed and ratified in France), the formal validity of the testamentary disposition of movable property located in Moscow will be determined. If a US citizen has real estate in Germany, then the validity of the testamentary disposition of real estate will be determined by German law, including the provisions of the 1961 Convention. Similarly, if a US citizen who had a habitual residence in Switzerland passes away, leaving behind movable property in the USA, then Swiss law (including the 1961 Convention) will determine the formal validity of the disposal of movable property located in the USA. It should be noted that in the United States, the Uniform Inheritance Code of 2019 contains rules that essentially resemble the rules of the 1961 Convention: a will drawn up in writing is valid if it was drawn up in accordance with Part 2-502 or 2-503 of the Code, or if it meets the requirements of the law of the place of making a will, the law of the state of citizenship the testator or the right where, at the time of making the will or at the time of death, the testator was domiciled or had an ordinary place of residence^[75].

The Convention "On the Conflict of Laws concerning the Form of Testamentary Dispositions" of October 5, 1961 leaves unresolved many issues, in particular, the Convention does not contain a definition of the concept of "habitual residence" (habitual residence) or even abstract criteria to distinguish this category from the concept of domicile. In addition, there are no indications as to the law of which country the content of these concepts should be established. One of the court decisions indicates that the usual place of residence should be understood as the physical presence of the testator in the country for a certain period of time^[76]. The 1961 Convention also does not address issues related to the dual citizenship of the testator: according to the law of which country the validity of the will should be determined if the testator is a citizen of more than one State.

In accordance with Article 2 of the 1961 Convention, the act of revocation of a will is recognized as valid if the act complies with the law of the country where the revoked will was recognized as valid. A similar approach is applied to determining the testator's ability to make a will and the ability of witnesses to act as witnesses. The will will be formally valid even if the witness did not meet the requirements of the legislation of the country where the will was drawn up, but met the necessary requirements of the law of the country of which the testator was a citizen at the time of death.

Thus, the 1961 Convention "On the Conflict of Laws concerning the Form of Testamentary Dispositions" primarily aims to give testamentary dispositions the property of formal validity by expanding the list of jurisdictions whose law can regulate this issue, and not by creating a unified form of testamentary disposition that enjoys universal recognition, so that the will is valid regardless of national law. this or that state.

In this regard, it should be said that under the auspices of the International Institute for the Unification of Private Law (Unidroit), a Convention was developed providing for a uniform law on the form of an international will, dated November 26, 1973^[77].The Convention has entered into force in Australia, Belgium, Bosnia and Herzegovina, Cyprus, Ecuador, France, Italy, Portugal, Libya, Slovenia, Croatia.

The Russian Federation, the United Kingdom and the United States have signed but not ratified the 1973 Convention.

According to Article 1 of the Annex to the 1973 Convention, a will is formally recognized as valid regardless of the place of its commission, the location of the property, citizenship, habitual residence, if the will is drawn up in the form of an international will in compliance with the provisions of the 1973 Convention. More specifically, according to articles 2-5 of the Annex to the 1973 Convention, a will is valid if it is made in writing and if the testator, in the presence of two witnesses and a person authorized to conduct business in connection with international wills, makes a statement that the will is his document and that he knows its contents. The 1973 Convention allows the testator to make a will in any language, by hand or otherwise (for example, it is not necessary that the will be drawn up by the testator himself). The testator is not obliged to disclose the contents of the will to witnesses or an authorized person. In determining the proper status of witnesses, the 1973 Convention is based on the norms of the national law of a particular State. However, it should be borne in mind that some jurisdictions may not have any provisions on witnesses.

According to Article 5 (3) of the Annex to the 1973 Convention, witnesses and an authorized person on the spot certify the will with their signatures in the presence of the testator, i.e. immediately after the testator signs the will in the presence of witnesses and an authorized person or confirms his previously made signature. In accordance with articles 8, 9, 10 of the Annex to the 1973 Convention, in the absence of any mandatory national rules on the storage of wills, the authorized person clarifies with the testator whether he wishes to make a statement regarding the storage of the will (safekeeping of the will). Information about the place of storage of the will, indicated by the testator, is entered into a special certificate, which is prepared by an authorized person to confirm that all the requirements of the 1973 Convention have been met. The authorized person shall attach the certificate to the will.

The Hague Convention on the Law Applicable to the Inheritance of the Property of the Deceased, dated August 1, 1989 embodies the idea of achieving uniform regulation of international (cross-border) inheritance ^[78]. In accordance with article 3 of the Convention, inheritance of property - both movable and immovable - is regulated by law:

• the country in which the testator had his usual place of residence;

• the country whose citizenship the testator had at the time of death;

• the country in which the testator continuously resided during the 5 years immediately preceding his death (except in cases where the testator has a clear close connection with the jurisdiction of his citizenship).

In all other cases, inheritance is regulated by the law of the State of which the testator was a citizen at the time of death, or by the law of the country with which the testator established a really closer relationship. Thus, the 1989 Convention completely eliminates the conflict of laws binding to the law of the country where the testator's real estate is actually located, which ensures the unity of the hereditary statute.

According to Article 5 of the 1989 Convention, the testator may choose the law applicable to the inheritance of property, provided that the testator at the time of choosing the right or at the time of death is a citizen of the relevant State or permanently resides on its territory. In accordance with Article 6 of the 1989 Convention, the testator may choose the law of different jurisdictions in relation to the inheritance of "individual assets", provided that the choice of law does not affect the effect of those peremptory norms of legislation that regulate the relevant relations regardless of the law to be applied^[79].

The 1989 Convention was signed by Argentina, Luxembourg and Switzerland and never entered into force.

Advantages of making testamentary dispositions in different jurisdictions. The testator can dispose of the property located in several jurisdictions by means of registration of an international will^[80]. As mentioned earlier, the construction of the international will was introduced by the Washington Convention of October 26, 1973 and is applied in the countries participating in the Convention. At the same time, the execution of several wills in respect of each foreign asset under the law of the respective jurisdictions where the property is actually located may, depending on the circumstances of the case, be the most preferable from a practical point of view.

The expediency of making a single international will or several separate wills depends in each case on the individual factual circumstances of the case. In many countries of the Romano-German legal family, the children of the testator have the right to a mandatory share in the inheritance, regardless of the content of the will^[81]. For example, in France, the mandatory share in the inheritance is 1/2 if the testator had one child, 2/3 - if two children and 3/4 - if there are three children or more. Moreover, a mandatory share is provided to the surviving spouse if there are no other necessary heirs^[82]. The testator can freely dispose of only the remaining part of the property^[83]. In the common law system, only the legislation of the state of Louisiana provides for special rules on the mandatory share in the inheritance^[84].

Considering the above, if the testator in France disposes of all his property by making a single international will, then there is a significant probability that the entire hereditary mass will undergo enormous depletion when applying the rules on mandatory share. If a certain property of the testator is actually already located in a jurisdiction where the rules on mandatory share are not recognized, the testator may issue a separate will in respect of this property according to the laws of the relevant jurisdiction and thereby ensure the protection of these assets. In order for this to be possible in practice, it is necessary to make sure that under the law of a country where the institution of a mandatory share is not recognized, it is allowed to make such an order, including in cases where the testator's usual place of residence is in another country. For example, in the judicial practice of the state of New York, where the institution of a mandatory share is not recognized, the principle has long been formed that persons who are not domiciled in the state can nevertheless choose the law of the state of New York to regulate the validity, interpretation and execution of testamentary dispositions regarding property actually located in the state^[85].

Thus, if the testator wishes to ensure the protection of part of his property from the requirements of mandatory heirs, then he should pay attention to the possibility of issuing separate testamentary orders in respect of assets and property values located on the territory of various jurisdictions. However, the degree of reduction in the size of the mandatory share depends not only on the choice of law of the country where the property is located, but also on the laws of the country where the testator has his usual place of residence: if the testator disposes of part of his property in one jurisdiction in such a way that it will be inaccessible to mandatory heirs in another jurisdiction, then the competent authorities of the state, in particular in which the testator permanently resides and in which the institution of the mandatory share is recognized, a number of actions can be performed aimed at "compensating" the value of the property that has dropped out of the sphere of the controlling influence of the jurisdiction by proportionately increasing the size of the mandatory share that the heirs are entitled to claim. As a result of such actions, mandatory heirs will be able to claim assets of significant value with the only feature that for them the source of acquisition will be a jurisdiction where strict rules on mandatory share apply. This factor should be taken into account in the practice of cross-border inheritance.

The execution of several wills in respect of property values located in different jurisdictions may allow the testator to take advantage of certain advantages and legal structures that are not provided for in the law of the testator's usual place of residence. For example, if the testator has property located on the territory of Mexico, Colombia, Chile, Panama, Peru or Venezuela, he can dispose of this property through a separate will, under the terms of which the construction of "fiduciary property" (fideicomiso/propiedad fiduciaria) will be established, known only to the law of a number of Latin American countries ^[86]. If the property is located on the territory of Italy, then in some cases, by means of a separate testamentary order, the testator can establish a family foundation (fondo patrimoniale)^[87] or even a trust (trust interni)^[88]. If the property is located on the territory of Liechtenstein, Monaco, Cyprus or Malta, the testator will be able to dispose of this property by transferring it to a trust, since special legislative acts on trusts have been adopted in these countries. If part of the testator's property is located in the United States, he will be able not only to transfer this property to a trust, but also to provide special conditions for the transfer of inheritance rights in a separate will, in particular, to include in the text of such a will a restrictive clause according to which challenging the testamentary disposition by one of the heirs will mean that such an heir loses the right of inheritance (in terrorem clause/no-contest clause^[89]). This clause allows the testator to guarantee that the transfer of property located in the United States to the designated beneficiaries in the order of hereditary succession will be carried out with minimal risk of challenging the testamentary disposition. It should be noted that in many countries such clauses in the will come into conflict with the public policy of the State.

Other advantages of making separate testamentary dispositions (instead of a single international will) include:

• the opportunity to choose the personal law of a legal entity that is specially established in execution of a will;

• a testator pursuing public charitable purposes may choose a jurisdiction with minimal regulatory requirements and a less strict regime of control and supervision;

• the possibility to strengthen the inheritance confidentiality regime in the context of disclosure requirements for international assets;

• the ability to reduce the likelihood of cross-border disputes over international inheritance;

• if the State where the testator's property is located is a party to the 1961 Convention on the Conflict of Laws concerning the Form of Testamentary Dispositions, then the execution of individual testamentary dispositions will not be difficult, since the testator will not have to take into account the special requirements regarding the form and procedure for making a will provided for in each specific jurisdiction; instead, it will be necessary and it is enough to make a will that meets the requirements of the 1961 Convention.

The obvious advantage of making a single international will is the simplified procedure for disposing of property and the initial exclusion of potential contradictions that may arise in the case of making separate wills. Individual testamentary dispositions are effective only if each of them explicitly and with the utmost degree of accuracy reflects complete information about the specific part of the testator's property to which this will is applied. Thus, the above-mentioned theoretical advantages of the execution of individual testamentary dispositions will have real practical consequences only if such wills are designed with the utmost degree of care to achieve their goals. Careless execution of wills can lead to unforeseen results, the occurrence of which the testator initially did not want, as well as to such an interpretation in which one will will cancel another ^[90]. In some cases, foreign law enforcement agencies may refuse the testator to accept a testamentary disposition for production on the grounds that the testator does not reside in this country on a permanent basis. In a number of countries, the law enforcement authority may require that all the testator's death orders, which are available at the time of presentation of a separate will, be submitted for its consideration. Making a single international will can be a profitable alternative in such cases. An international will can also prevent "forum-shopping" by beneficiaries and creditors.

^[1] For some problems of resolving cross-border disputes in the field of inheritance, see: Medvedev I.G. International private law and notary activity - 2nd ed. - Moscow: Volters Kluver, 2005; Medvedev I.G., Yarkov V.V. On some problems of resolving international inheritance disputes // Law. 2014. No. 8. pp. 58-69.^[2] Sneddon, K.J. Beyond the Personal Representative: The Potential of Succession Without Administration // South Texas Law Review, Vol. 50, p. 449, 2009.

^[3] Fundamentals of the legislation of the Russian Federation on notaries dated February 11, 1993 No. 4462-I // Vedomosti of the Congress of People's Deputies of the Russian Federation and the Supreme Soviet of the Russian Federation dated March 11, 1993, No. 10, article 357.

^[4] On the formal validity of testamentary dispositions, see: Actual problems of inheritance law of foreign countries: monograph/ Gaidaenko Sher N.I., Leschenkov F.A., Radchenko V.S., etc.; ed. N.G. Semilyutin, O.M. Sakovich, S.V. Solovyova. - Infotropik Media, 2021; Barkov R.A., Blinkov O.E. The formal validity of a will as an act of realization of an active testamentary legal personality (comparative legal aspect) // Inheritance Law. 2013. No. 3. pp. 42-48; Abramenkov M.S. Formal validity of wills // Inheritance law. - 2013. - No. 4. - pp. 10-16. 

^[5] See e.g.: Nigg T. Snapshot: Succession Law in Liechtenstein (Gasser Partner Attorneys at Law) // Lexology, 2020. [Electronic resource] https://www.lexology.com/library/detail.aspx?g=f432c6bf-5a7d-4aeb-8015-b3d40718bb32.

^[6] On the rights of spouses, see also in addition: Medvedev I.G. Commentary on conventions in the field of property relations of spouses and inheritance / I. G. Medvedev. - Moscow : Volters Kluver, 2007

^[7] The French Civil Code (the Napoleonic Code) = Code civil des Fran?ais (Code Napol?on) / trans. from the French [V.N.Grabaeva] – M.: Infotropik Media, 2012. p. 289.

^[8] Sitkoff R.H. Trusts and Estates: Implementing Freedom of Disposition // 58 St. Louis U. L. J. 643 (2014).; Glover M. Freedom of Inheritance // Utah Law Review: Vol. 2017: ¹ 2.

^[9] N.Y. Estates, Powers & Trusts (EPT) Chapter 17-B, Article 3, Part 5 (§ 3-5.1) // Nysenate Official Website: https://www.nysenate.gov/legislation/laws/EPT/3-5.1.

^[10] N.Y. Surrogate’s Court Procedure Act (SCP) Chapter 59-A (§ 103) // Nysenate Official Website: https://www.nysenate.gov/legislation/laws/SCP/A1.

^[11] For example, if the deceased had real estate in several states, then exactly as many different inheritances are opened, sometimes very different from each other in relation to the circle of heirs, etc., as many real estate properties are located in different countries. See also: Abramenkov M.S. Some problems of conflict-of-laws regulation of inheritance relations in the Russian Federation // Moscow Journal of International Law. 2006. No. 4. pp. 181-202; Khlestova I.O. On the practice of Russian courts in cases of inheritance complicated by a foreign element // Journal of Foreign Legislation and Comparative Jurisprudence, 2015. No. 2. pp. 235-240.

^[12] Civil Code of the Russian Federation (Part 3) of November 26, 2001 No. 146-FZ // Rossiyskaya Gazeta of November 28, 2001 No. 233.; N.Y. Estates, Powers & Trusts (EPT) Chapter 17-B, Article 3, Part 5 (§ 3-5.1) // Nysenate Official Website: https://www.nysenate.gov/legislation/laws/EPT/3-5.1 .

^[13] Willis Reese L.M. Conflict of Laws and the Restatement Second // Law and Contemporary Problems 28, ¹ 4, 1963; David Seidelson E. Interest Analysis or the Restatement Second of Conflicts: Which Is the Preferable Approach to Resolving Choice-of-Law Problems? // 27 Duquesne Law Review, 1988; Willis Reese L.M. Choice of Law: Rules or Approach // 57 CORNELL Law Review, 1972.

^[14] The freedom of the parties to choose for themselves the most optimal place to resolve the dispute is limited by the exclusive jurisdiction of a number of cases, including cases on real estate rights (Articles 30, 403 of the Civil Procedure Code of the Russian Federation, Article 44 of the Civil Procedure Code of France, § 24 of the GPU of Germany). See also: Eliseev N.G. Jurisdiction of cases related to real estate // Objects of civil turnover: Collection / Ed. by M. A. Rozhkova. M.: Statute, 2007. pp. 481 - 530; Eliseev N.G. Procedural contract. - M.: Statute, 2015. pp. 215-242.

^[15] Musin V.A. Favorites. - St. Petersburg: ANO "Editorial Board of the journal "Arbitration Court". - M.: Statute, 2014. C. 248.

^[16] Neshataeva T. N. Private international law and international civil procedure: studies. course in 3 h. M., 2004. p. 543; Muranov A. I. International treaty and reciprocity as grounds for enforcement of foreign judgments in Russia. M., 2003. p. 30.

^[17] McGuire v.  Andre, 259 Ala. 109, 65 So. 2d 185 (1953).

^[18] In Germany, real estate is understood as everything that is permanently (not on a temporary basis) and is firmly connected with a land plot, that is, what is an essential component of it, which is not separated without destruction or change in its essence (Article 94 of the State Civil Code), while the rights associated with the right ownership of a land plot is recognized as constituent parts of real estate (Article 96 of the State State University).

^[19] N.Y. EPTL § 3-5.1(a)(1),(2).

^[20] Fowlis W., Northwood E. Canadians Acquiring US Residential Real Property: Cross-Border Considerations // Asper Review of International Business and Trade Law, Vol. 13 ¹ 1, 2013. pp. 123-157.

^[21] Restatement (Second) of Conflict of Laws § 239. - ALI Pub, 1971.

^[22] Restatement (Second) of Conflict of Laws § 263. - ALI Pub, 1971.

^[23] Restatement (Second) of Conflict of Laws § 239, cmt. c. 240 (2), 242, 263, 264(2), 265. - ALI Pub, 1971.

^[24] For real estate - Restatement (Second) of Conflict of Laws § 236(1). - ALI Pub, 1971.; Clarke v. Clarke, 178 U.S. 186, 20 S. Ct. 873, 44 L. Ed. 1028 (1900). For movable property - Restatement (Second) of Conflict of Laws § 260. - ALI Pub, 1971. N.Y. EPTL § 3-5.1(b)(2); Barthel v. Johnston, 92 Idaho 94, 437 P.2d 366 (1968).

^[25] Restatement (Second) of Conflict of Laws § 236(2). - ALI Pub, 1971.

^[26] For example, when inheriting adopted children, the court will determine whether the adopted person has the right to inherit real estate by law. For these purposes, the court will apply its own law, but also recognizes the claim of a person adopted under the legislation of a foreign state. See: Kuchenig v. California Co., 410 F. 2d 222 (5th Cir. Law. 1969). Restatement (Second) of Conflict of Laws § 238, cmt. b. - ALI Pub, 1971.

^[27] Uniform Probate Code § 2-703; Restatement (Second) of Conflict of Laws § 224(1), 240 (1), 264(1). - ALI Pub, 1971.

^[28] Conn. Gen. Stat. § 45a-287(c); Fla. Stat. § 731.106(2); 755 Illinois Comp. Stat. 5/7-6; New Jersey Stat. Ann. 3B:3-33; N.Y. EPTL § 3-5.1(h).

^[29] See also: In re Estate of Boyd 321 P.3d 1001 (Okla. Civ. App. 2014).; Mohr v. Langerman 858 N.W.2d 36 (Table), 2014 WL 5243364 (Iowa Ct. App. Oct. 15, 2014).

^[30] Cal. Civ. Code § 755, 946; N.Y. EPTL § 3-5.1.

^[31] Meier L. Simplifying Choice-of-Law Interest Analysis // 74 Okla. L. Rev. 337, 2022. pp. 337-382.; McDougal L. Choice of Law: Prologue to a Viable Interest-Analysis Theory // 51 Tul. L. Rev. 207, 1977.; Kay H. Currie’s Interest Analysis in the 21st Century: Losing the Battle, but Winning the War // 37 Willamette L. Rev. 123, 2001.

^[32] Restatement (Second) of Conflict of Laws § 6(2). - ALI Pub., 1971.

^[33] Restatement (Second) of Conflict of Laws, § 11. - ALI Pub., 1971.

^[34] Restatement (Second) of Conflict of Laws, § 12. - ALI Pub., 1971.

^[35] N.Y. Comp. Codes R. & Regs. Tit. 20 § 105.20 (d).

^[36] McKone v. State Tax Comm’n, 111 A.D. 2d 1051, 490 N.Y.S. 2d 628 (N.Y. App. Div. 1985), aff’d 68 N.Y. 2d 638, 505 N.Y.S. 2d 71, 496 N.E. 2d 230 (N.Y. 1986).

^[37] Petition of Wahl, 1971-1979 New Matters Transfer Binder (CCH) at 99-803 (State Tax Comm’n, Aug. 13, 1973); Petition of Santos, 1971-1979 New Matters Transfer Binder (CCH) at 99-711 (State Tax Comm’n, Feb. 14, 1973).

^[38] Restatement (Second) of Conflict of Laws, § 15, 18. - ALI Pub., 1971; Texas v. Florida, 306 U.S. 398, 59 S. Ct. 563, 83 L. Ed. 817, 121 A.L.R. 1179 (1939); In re Newcomb’s Estate, 192 N.Y. 238, 84 N.E. 950 (1908).

^[39] Stacher v. United States, 258 F.2d 112 (9th Cir.), cert. denied, 358 U.S. 907 (1958); Weible v. United States, 244 F.2d 158 (9th Cir. 1957).

^[40] Winans v. Winans, 205 Mass. 388, 91 N.E. 394 (1910).

^[41] Kjarstad v. State, 703 P.2d 1167 (Alaska 1985); In re Esser’s Will, 239 N.Y.S.2d 585 (Sur. Ct. 1963); Meltzer v. Commonwealth Unemployment Compensation Bd. of Review, 471 A.2d 157 (Pa. Commw. Ct. 1984).

^[42] Nienhuys v. Commissioner, 17 T.C. 1149 (1952), ace., 1952-1 C.B.1.

^[43] I.R.C. § 872 (a)(2).

^[44] I.R.C. § 872 (a)(1).

^[45] Restatement (Second) of Conflict of Laws, § 14(2). - ALI Pub., 1971.

^[46] Chisholm v. Chisholm, 105 Fla. 402, 141 So. 302 (1932); Antonelli v. Antonelli, 16 N.J. Super. 439, 84 A.2d 753 (1951).

^[47] Restatement (Second) of Conflict of Laws, § 22. - ALI Pub., 1971.

^[48] Restatement (Second) of Conflict of Laws, § 15. - ALI Pub., 1971.

^[49] Restatement (Second) of Conflict of Laws, § 19. - ALI Pub., 1971.

^[50] Dicey and Morris. The Conflict of Laws. London, 1993. P. 125–126.

^[51] Restatement (Second) of Conflict of Laws, § 13. - ALI Pub., 1971.

^[52] Rev. Rul. 80-209, 1980-2 C.B. 248. In this case, a person (an illegal migrant) was subject to expulsion (deportation) outside the United States, but it was found that this person has been in the United States for a total of 19 years, has real estate and participates in social life and local organizations, in other words, regardless of his illegal status, the person was recognized as a domiciled resident USA. 

^[53] Rev. Rul. 80-363, 1980-2 C.B. 249 (the rule applies to persons who died after December 29, 1980). A person's entry into a country on the basis of a G-4 visa does not prevent him from "developing" an intention to stay in this country indefinitely, i.e. to choose the United States as a country for permanent residence (Elkins v. Moreno, 435 U.S. 647 (1978)).

^[54] Tech. Adv. Mem. 8137027 (May 29, 1981) (Rev. Rul. 74-364 also concerns the general rules for taxation of property of non-immigrant foreigners).

^[55] Newman B. Alien Blues: Affluent and Healthy and Ready to Retire? Just Don’t Try it Here // Wall Street Journal, 1998. Art. 1, col. 1.

^[56] Estate of Paquette v. Commissioner, T.C. Memo 1983-571.

^[57] Restatement (Second) of Conflict of Laws, § 13. - ALI Pub., 1971.

^[58] In re Rougeron, 17 N.Y. 2d 264, 270 N.Y.S. 2d 578, 217 N.E. 2d 639 (1966).

^[59] In re Tallmadge, 109 N.Y. Misc. 696, 181 N.Y. Supp. 336 (Surr. Ct. 1919); Wyatt v. Fulrath, 38 Misc. 2d 1012 239 N.Y.S.2d 486 (N.Y. Sup. Ct. 1963), aff’d, 22 A.D. 2d 853, 254 N.Y.S. 2d 216 (qst Dept. 1964), aff’d 16 N.Y.2d 169, 264 N.Y.S. 2d 233, 211 N.E.2d 637 (1965).

^[60] Cheshire, North & Fawcett: Private International Law (15th Edition). - Oxford University Press, 2017. P. 58.

^[61] In re Schneider's Estate, 198 N.Y. Misc. 1017, 96 N.Y.S.2d 653 (Surr. Ct. 1950) aff’d on rehearing, 198 Misc. 1030, 100 N.Y.S.2d 371 (Surr. Ct. 1950); Restatement (Second) of Conflict of Laws § 8(2), ALI Pub., 1971.

^[62] In Germany, both reverse and further reference is still allowed, and conflict of laws rules refer to the foreign legal order as a whole, if this does not contradict the meaning of the relevant norm (Article 4 of the Introductory Law to the State State University). See: Anichkin A.V. Institute of Reverse Reference in Modern Private International Law // Moskovsky journal of International Law. 2001. No. 1. p. 126.; Koch H., Magnus U., Winkler von Morenfels P. Private International law and comparative Jurisprudence / Translated from German by Yu.M. Yumasheva. M., 2003. p. 35.

^[63] Regulation (EU) ¹ 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession // OJ L 201, 27.7.2012, p. 107–134.

^[64] In another case, if the testator, who permanently resided in Germany, dies, leaving real estate in Russia, then each of the conflict of laws systems will indicate the application of its own substantive law, but the choice of only the substantive law of Russia will be effective, since Russia does not participate in the EU Regulation No. 650/2012, and for a notary or judge on the location of real estate in Russia will be required only by its own rules of private international law.

^[65] Regulation (EU) ¹ 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession // OJ L 201, 27.7.2012, p. 107–134.

^[66] According to notes (81), (82) and (83), the Regulation does not apply in Denmark, Great Britain and Ireland and in non-EU countries.

^[67] For example, German domestic law is based on the basic principle that inheritance cases are considered by German courts, provided that a particular case is under their territorial jurisdiction (?tlich zust?ndig ist). According to section 343 of the Law "On Family Court Proceedings", the court has territorial jurisdiction if the testator had his usual place of residence in the relevant judicial district at the time of death. If the testator has German citizenship, but his usual place of residence at the time of death is outside Germany, then the case is under the jurisdiction of the Sch?neberg Court in Berlin (Sch?neberg), which can transfer the case to another inheritance court if there are valid reasons. If the testator is not a German citizen, and his usual place of residence at the time of death is in another country, then the case is under the jurisdiction of the court in Germany in whose district the immovable property is located. If the inheritance includes property located outside Germany, then the application for the issuance of a certificate of inheritance (Erbschein) is allowed (but not necessarily prescribed) to limit the list of those property values that are located within Germany (§ 2369 GSU). A certificate of inheritance right may be issued even if the inheritance relationship is regulated by foreign law. - See: Gesetz ?ber das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit vom 17. Dezember 2008 // BGBl. I S. 2586, 2587. See also: Bayerisches Oberstes Landesgericht, No. 1 Z BR 159/94, FamRZ 1995, 1028. It should be noted that an item is considered to be located within Germany if the relevant national institution maintains a book or register of registration of persons entitled to the specified item. The claim is considered to be located within the country if the claim on it is subject to a court in Germany (paragraph 2 of § 2369 of the State Civil Code).

^[68] Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testament Dispositions // HCCH Official website: https://www.hcch.net/en/instruments/conventions/full-text/?cid=40 .

^[69] In re Theodoropoulos, 93 Misc. 2d 551, 402 N.Y.S. 2d 927 (Sur. Ct. 1978); N.Y. SCPA § 1601; Uniform Probate of Foreign Wills Act § 1.

^[70] Fla. Stat. § 733.304.

^[71] McCouch, Grayson M.P. Revocable Trusts and Fiduciary Accountability // 26 Elder Law Journal, 1 (2018); Ausness Richard C. A "Mere Expectancy?" What Rights Do Beneficiaries of a Revocable Trust Have Prior to the Death of the Settlor?" // Law Faculty Scholarly Articles. 2019; John Langbein H. The Nonprobate Revolution and the Future of the Law of Succession // 97 Harvard Law Review 1108 (1984); Morley John D. and Sitkoff Robert H. Trust Law: Private Ordering and the Branching of American Trust Law // The Oxford Handbook of New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin, and Henry E. Smith, eds., 2021), Yale Law & Economics Research Paper, Harvard Public Law Working Paper ¹ 19-46.

^[72] Willbanks Stephanie J. Taxing Once, Taxing Twice, Taxing Joint Tenants (Again) at Death Isn't Nice // 9 Pittsburgh Tax Review 1 (2011), Vermont Law School Research Paper ¹ 12-12, Available at SSRN: https://ssrn.com/abstract=2078994.; Orth J.V. The Paradoxes of Joint Tenancies // 46 Real Prop. Trust and Est. Law 483 (Winter 2011).

^[73] Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940).

^[74] Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testament Dispositions // U.N.T.S., 1977. p. 510. Official website of the Hague Conference on Private International Law - HCCH: https://www.hcch.net/en/instruments/conventions/full-text/?cid=40 .

^[75] Unif. Prob. Code § 2-506. The Code has been adopted in the following states: Alaska, Arizona, Colorado, Hawaii, Massachusetts, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, Utah.

^[76] Cruse v. Chittum, 2 All E.R. 940, 943 (1974) [England].

^[77] Convention of 26 November 1973 providing a Uniform Law on the Form of an International Will // UNIDROIT Official website: https://www.unidroit.org/instruments/international-will/status/.

^[78] Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceived Persons // Official website of the Hague Conference on Private International Law - HCCH: https://www.hcch.net/en/instruments/conventions/full-text/?cid=62

^[79] In re Renard, 100 Misc. 2d 347, 417 N.Y.S. 2d 155 (Sur. Ct. 1979).

^[80] See, for example: Medvedev I.G., Yarkov V.V. Testament without borders: on the need to join international treaties in this area // Law, No. 6, 2014.

^[81] Walker v. Ryker, No. 285782, 2018 WL 4659621 (Cal. Ct. App. Sept. 28, 2018). See also: In re Estate of Tompkins, No. B292712, 2019 WL 4686980 (Cal. Ct. App. Sept. 26, 2019).

^[82] Loi ¹ 2001-1135 du 3 d?cembre 2001 relative aux droits du conjoint survivant et des enfants adult?rins et modernisant diverses dispositions de droit successoral // JORF n°281 du 4 d?cembre 2001. NOR: JUSX0104676L Texte n° 1.

^[83] "Gratuitous transactions made either by gift agreements or by bequest may not exceed half of the alienator's property if only one child remains after his death; one third part – if two children remain, one fourth – if three or more children remain." - The French Civil Code (Napoleon's Code) = Code civil des Fran?ais (Code Napol?on) / translated from the French [V.N.Grabaeva] – M. : Infotropik Media, 2012. p. 289.

^[84] La. Civ. Code, art. 1493.

^[85] In re Renard, 437 N.Y.S. 2d 860 (Sur. Ct. N.Y. County 1981), aff’d 447 N.Y.S. 2d 573 (1st Dept. 1981), aff’d 439 N.E.2d 341 (N.Y. 1982).

^[86] Rodolfo Papa G. Fideicomiso para Abogados y Contadores. – Ciudad Autonoma de Buenos Aires: Erreius, 2019.

^[87] Codice Civile Regio Decreto 16 marzo 1942, ¹. 262 Approvazione del testo del Codice civile (042U0262) // Gazzetta Ufficiale ¹ 79 del 4-4-1942.

^[88] Lupoi M. Trusts in Italy as a living comparative law laboratory // Trusts & Trustees, Vol. 19, No. 3&4, April/May 2013, pp. 302–308.

^[89] Shaheen Evan J. In Terrorem Clauses: Broad, Narrow, or Both? // 95 Notre Dame Law Review, 2020. P. 1763.

^[90] Special care should be taken in the formulation of provisions aimed at revoking previous wills. In order to avoid unintentional cancellation of wills, the validity of which the testator actually wanted to preserve, in the preamble of wills issued in different jurisdictions, it should be indicated that previous wills are subject to cancellation only to the extent that they contradict subsequent wills. All wills should include a clause stating that the cancellation of the previous will is allowed only through the execution of a subsequent will, in which a special reference to the previous will will be made. In this case, in order to cancel the previous wills, it will be necessary to explicitly refer to them in the text of subsequent wills, i.e. the risk of unintentional cancellation of the testamentary disposition will thereby be eliminated.