Navigating Your International Estate: Crafting a Will Across Borders

Securing your legacy with clarity when living between Poland, the Netherlands, and Portugal.

Crafting a will when your life and assets span multiple countries like Poland, the Netherlands, and Portugal requires careful consideration of international legal frameworks. As a couple married in Poland with a Dutch prenuptial agreement, residing long-term in Portugal with property and bank assets, your estate planning needs to address these cross-border complexities to ensure your wishes are accurately fulfilled.

Key Highlights for Your Estate Planning

The EU Succession Regulation is Your Ally: This regulation (No. 650/2012) generally allows you to choose the law of your nationality to govern your entire succession, which can override the default law of your habitual residence (Portugal).
A Will is Crucial: Relying on intestacy rules (dying without a will) is unlikely to achieve your specific distribution wishes, especially due to Portuguese forced heirship rules if Portuguese law were to apply.
Specificity Defeats Ambiguity: Your desire for assets to pass to parents/sisters if the second spouse dies shortly after the first requires precise clauses (e.g., a survivorship clause) in a formally drafted will.

Understanding the International Legal Landscape

Your situation involves three key jurisdictions: Poland (place of marriage), the Netherlands (law governing your prenuptial agreement and potential choice of law for succession), and Portugal (current long-term residence and location of your house). The primary legal instrument governing cross-border succession within most EU member states is the EU Succession Regulation (No. 650/2012), also known as "Brussels IV."

The EU Succession Regulation

This regulation establishes that, by default, the law of the country where the deceased had their habitual residence at the time of death will apply to their entire estate. For you, this would likely be Portuguese law. However, a crucial provision of this regulation allows individuals to choose the law of their nationality to govern their succession. This choice must be made expressly in a will or a separate declaration.

Portuguese Law Considerations

If Portuguese law applies (e.g., by default due to habitual residence and no choice of law), its rules on "forced heirship" (legítima) would come into play. These rules reserve a portion of the estate for certain heirs (e.g., spouse, descendants, ascendants). Since you have no children, your spouse and potentially your parents could be considered forced heirs. This could conflict with your wish for the surviving spouse to inherit everything initially.

Dutch Law Considerations

Your prenuptial agreement is under Dutch law, which governs your matrimonial property regime. If you are able (e.g., one or both of you hold Dutch nationality) and choose Dutch law to govern your succession, you generally have greater testamentary freedom than under Portuguese forced heirship rules, making it easier to achieve your desired distribution.

Analyzing Your Specific Wishes

You have outlined a clear, three-tiered plan for your estate:

All assets to the surviving spouse: This is a common and straightforward objective.
If both die simultaneously: Assets to be distributed evenly among your parents and sisters. This requires clear designation of these beneficiaries.
Optional - If the second spouse dies shortly after the first: Assets inherited by the second spouse from the first should then pass to the first deceased spouse's parents and sisters. This is more complex and typically requires a "survivorship clause" or "common disaster clause" in the will, specifying a period (e.g., 30 or 60 days) within which, if the second spouse dies, the alternative distribution takes effect.

Achieving all three wishes, especially the third, necessitates a carefully drafted will.

Comparison of Your Estate Planning Options

Let's examine the four options you're considering:

A. No Will (Intestate Succession)

How it Works & Effectiveness

If you die without a will, your estate will be distributed according to statutory intestacy laws. Under the EU Succession Regulation, this would likely mean Portuguese law applies due to your habitual residence. Portuguese intestacy rules include forced heirship, meaning your spouse would inherit, but parents could also have claims, potentially preventing your primary wish of all assets going to the surviving spouse. Your second and third wishes (distribution to parents/sisters in specific scenarios) would almost certainly not be met as specified.

Pros:

No upfront costs for drafting a will.

Cons:

Very unlikely to achieve your desired asset distribution.
Portuguese forced heirship rules would likely apply, overriding your specific wishes.
No mechanism for your optional third wish (assets reverting to the first deceased's family if the survivor dies shortly after).
Potential for higher costs and complexity during probate due to cross-border elements and potential disputes.

Costs:

Minimal upfront, but potentially significant legal and administrative costs later during probate, especially with international assets.

B. Simple Statement at Notary to Apply Dutch Law

How it Works & Effectiveness

The EU Succession Regulation allows you to make a declaration choosing the law of your nationality to govern your succession. If one or both of you are Dutch nationals, you could make such a statement before a notary. This would mean Dutch inheritance law applies to your entire estate, including your Portuguese property. While this clarifies the applicable law and Dutch law offers more testamentary freedom, a simple statement of choice of law does *not* replace a will. It doesn't specify *who* inherits or under what conditions. Your detailed wishes (1, 2, and 3) would still require a will.

Pros:

Clarifies that Dutch law should govern your estate, potentially avoiding Portuguese forced heirship.
Relatively simple and potentially less costly than a full will drafting process if done standalone.

Cons:

Does NOT act as a will; it only determines which country's laws apply to your succession. You still need a will to name beneficiaries and outline distribution.
Your specific wishes (1, 2, and 3) would not be implemented by this statement alone.

Costs:

Moderate notary fees for the declaration. However, additional costs for a will would still be necessary.

C. Testament (Will) in Portugal

How it Works & Effectiveness

You can make a will in Portugal before a Portuguese notary. In this will, you can (and should, given your wishes) explicitly choose Dutch law to govern your succession (assuming Dutch nationality). This would allow you to bypass Portuguese forced heirship rules and distribute your assets according to your wishes. A Portuguese will can clearly state: 1. All assets to the surviving spouse. 2. Provisions for simultaneous death, distributing to parents/sisters. 3. A survivorship clause for the "second dies shortly after" scenario. This is a practical option as you reside in Portugal and own property there. The will would cover your worldwide assets if Dutch law is chosen.

A will is a formal document outlining the distribution of assets.

Pros:

Can achieve all your desired outcomes if drafted correctly and Dutch law is chosen (and applicable via nationality).
Addresses Portuguese assets directly.
A Portuguese public will (made before a notary) is a robust legal instrument.

Cons:

Requires careful drafting by a legal professional knowledgeable in both Portuguese procedures and international succession, including the implications of choosing Dutch law.

Costs:

Moderate notary and legal drafting fees in Portugal. Estimates typically range from €500 to €800+ depending on complexity.

D. Testament (Will) in the Netherlands

How it Works & Effectiveness

You can make a will in the Netherlands before a Dutch civil law notary. This will would be drafted according to Dutch law, which aligns with your prenuptial agreement and offers flexibility for your desired distributions (1, 2, and 3). Under the EU Succession Regulation, a Dutch will choosing Dutch law (or if Dutch law applies by default due to nationality if no other choice is made and if it were your last habitual residence, which it isn't) would generally be recognized in Portugal for your entire estate, including the Portuguese house. However, some practitioners advise having a complementary, simple Portuguese will specifically for Portuguese property to ease local probate, even if a comprehensive Dutch will exists.

Pros:

Full alignment with Dutch law, which governs your prenup and offers testamentary freedom.
Can precisely implement all your wishes.
Dutch notaries are experienced in international inheritance.

Cons:

May involve travel to the Netherlands.
While recognized, processing a foreign will for Portuguese assets can sometimes be slightly more cumbersome than a local Portuguese will, though the EU Regulation aims to simplify this.

Costs:

Moderate to potentially higher, including notary fees in the Netherlands (similar range to Portugal, €500-€1500+ depending on complexity) and possible travel costs.

Visualizing Your Options: A Comparative Analysis

The radar chart below offers a visual comparison of the four options across key factors. Higher scores indicate better performance for that criterion. This is an illustrative analysis based on your described needs and general legal principles.

This chart evaluates:

Achieves All Wishes: How well the option meets your three distribution goals.
Legal Certainty: The level of confidence that your wishes will be legally upheld.
Cost-Effectiveness (Overall): Considers upfront and potential future costs.
Simplicity of Execution: Ease of setting up the chosen option.
Avoids Forced Heirship: Effectiveness in bypassing unwanted statutory claims (e.g., Portuguese forced heirship).

Estate Planning Factors Mindmap

The mindmap below illustrates the interconnected elements in your international estate planning journey. Understanding these relationships is key to making an informed decision.

mindmap root["International Estate Planning"] id1["Your Situation"] id1a["Married in Poland"] id1b["Dutch Prenuptial Agreement"] id1c["Long-Term Residents in Portugal"] id1d["Assets: House (PT), Bank"] id1e["No Children"] id2["Desired Distribution"] id2a["All to Surviving Spouse"] id2b["Simultaneous Death: To Parents/Sisters"] id2c["Survivor Dies Soon: Assets to 1st Deceased's Family"] id3["Key Legal Considerations"] id3a["EU Succession Regulation (Brussels IV)"] id3b["Habitual Residence (Portugal)"] id3c["Choice of Law (e.g., Dutch Law if Nationality allows)"] id3d["Portuguese Forced Heirship"] id3e["Dutch Inheritance Law (Testamentary Freedom)"] id4["Possible Solutions (Wills)"] id4a["No Will (Intestacy)"] id4b["Statement Choosing Dutch Law (Insufficient Alone)"] id4c["Will in Portugal (Potentially Choosing Dutch Law)"] id4d["Will in Netherlands (Applying Dutch Law)"] id5["Associated Factors"] id5a["Costs (Notary, Legal Advice)"] id5b["Complexity of Setup"] id5c["Enforceability Across Borders"]

Summary Table of Options

This table provides a concise comparison of the discussed options against your key requirements and considerations.

Option	Achieves "All to Surviving Spouse"?	Achieves "Simultaneous Death" Distribution?	Achieves "Second Dies Shortly After" Distribution?	Subject to Portuguese Forced Heirship (if no choice of law)?	Likely Governing Law (without specific choice in will)	Estimated Upfront Costs	Overall Recommendation Strength
A. No Will	Unlikely (due to forced heirship)	No (statutory rules apply)	No	Yes	Portuguese	Very Low	Not Recommended
B. Simple Statement for Dutch Law	Only if coupled with a will	Only if coupled with a will	Only if coupled with a will	No (if Dutch law validly chosen)	Dutch (if chosen & nationality allows)	Low to Moderate	Insufficient Alone
C. Testament in Portugal (choosing Dutch Law)	Yes (if Dutch nationality allows choice & properly drafted)	Yes (if properly drafted)	Yes (if properly drafted)	No (if Dutch law validly chosen)	Dutch (if chosen & nationality allows)	Moderate	Strongly Recommended
D. Testament in the Netherlands	Yes (if Dutch law applies)	Yes (if properly drafted)	Yes (if properly drafted)	No (if Dutch law applies)	Dutch (if chosen or default by nationality/other factors)	Moderate to High	Recommended

Insights on International Wills from Experts

Understanding the nuances of international wills is crucial. The following video discusses the importance of making a will in Portugal for expatriates, which provides relevant context for your situation as residents there.

This video, titled "International Wills When Living in Portugal | The Importance ...", explains key considerations for those living abroad and planning their estate. It emphasizes how local laws and international regulations interact, reinforcing the need for careful planning, especially when assets or beneficiaries are in different countries or when specific distribution wishes deviate from standard intestacy rules.

Recommendation

Based on your circumstances and wishes, relying on intestacy (Option A) is highly inadvisable as it will likely not achieve your goals due to Portuguese forced heirship. A simple statement choosing Dutch law (Option B) is a step in the right direction but is insufficient on its own as it doesn't outline your beneficiaries or specific distribution conditions.

The most effective solutions are:

Option C: Testament in Portugal, choosing Dutch law. This is a strong contender. Since you are long-term residents in Portugal and own a house there, making a will locally with a Portuguese notary, while explicitly choosing Dutch law to govern the succession (assuming one or both of you have Dutch nationality allowing this choice), can be very effective. This will should clearly articulate all three of your distribution wishes, including the survivorship clause.
Option D: Testament in the Netherlands. This is also a robust option, ensuring your will is drafted under Dutch law, which aligns with your prenup. The will would need to be clear about its application to your worldwide assets, including those in Portugal. It's recognized under the EU Succession Regulation. Some may still advise a simple, complementary Portuguese will for the property to ease local administrative processes, though this adds complexity.

Crucial Next Step: Regardless of which of these two primary options you lean towards, it is essential to consult with a legal professional specializing in international inheritance law. They can advise based on your specific nationalities, the precise terms of your Dutch prenuptial agreement, and ensure your will is validly executed and accurately reflects your wishes. They can also confirm the ability to choose Dutch law based on your nationality.

Frequently Asked Questions (FAQ)

What is the EU Succession Regulation (Brussels IV)?

The EU Succession Regulation (EU No. 650/2012) simplifies cross-border successions within participating EU countries. It states that, by default, the law of the deceased's last habitual residence applies to their entire estate. However, it crucially allows individuals to choose the law of their nationality to govern their succession in their will.

What is "forced heirship" in Portugal?

Forced heirship (legítima) is a Portuguese legal principle where a certain portion of an individual's estate is automatically reserved for specific heirs, known as "forced heirs." These typically include the spouse, descendants (children), and ascendants (parents). Even with a will, you cannot freely dispose of this reserved portion if Portuguese law applies to your succession. However, if you have no children, the rules may primarily benefit your spouse and potentially parents.

How can we ensure assets go to specific family members if the surviving spouse dies shortly after the first?

This is typically achieved by including a "survivorship clause" or "common calamity clause" in your will. This clause specifies that if a beneficiary (in this case, the surviving spouse) dies within a certain period (e.g., 30, 60, or 90 days) after the testator, they are deemed to have predeceased the testator for the purposes of that inheritance. The will would then specify an alternative distribution, such as to your parents and sisters.

Does our Dutch prenuptial agreement affect our inheritance planning?

Yes, your Dutch prenuptial agreement defines your matrimonial property regime – what is considered joint marital property and what is separate property. This is relevant for determining what assets form part of each spouse's estate upon death. Choosing Dutch law for your succession can help ensure consistency between your prenup and your estate distribution.