Regulation (EU) nº 650/2012 of the European Parliament and Council, of 4th July 2012, establishing important modifications in the legal regulation of successions by reason of death became effective on 17th August 2015.
The principal and most outstanding regulatory modification is the one related to the criterion to determine the applicable law (hereinafter referred to as the LA) to all successions by reason of death, so that under this new regulation, the LA will not be the law of the deceased person’s nationality, as established in article 9.8 of the Civil Code, but the law of his/her “habitual residence” upon his/her death.
This significant legislative development has important implicit effects, since the results of applying the regulations of one or another Member State may result totally different with respect to the estate distribution.
However, this new rule is not mandatory to the extent that it will only be applied in the absence of an express provision. Thus, we will be able to choose the LA governing our succession, regardless of our country of residence, so that any person may choose the law of his/her nationality, or if more than one, any of them as the LA. Such choice shall be executed under a provision upon death granted pursuant to the rules of the applicable law chosen. Such LA will affect the whole succession, i.e., the capacity to succeed, disinheriting, determination of the freely available portion, reserved shares and other restrictions to disposal of property by reason of death, among others.
Moreover, when the law chosen by the deceased person to govern his/her succession is the law of a Member State, the interested parties may agree that courts of such Member State have the exclusive competence to determine any issue on succession.
“…the results of applying the regulations of one or another Member State may result totally different with respect to the estate distribution.”
Furthermore, given that the applicable law to the EU wills has been unified, such will drawn up pursuant to the LA chosen may move across borders of the Member States so that no authority may question the substance validity of any will adjusted to the Lex Successionis.
Another development in the Regulation is the creation of the “European Certificate of Succession” (ECS), which shall be issued to be used in another Member State and shall produce the following effects:
- It shall have effects in all Member States without any special proceeding being required.
- It shall be presumed to prove the details certified and that the person set out therein as heir, legatee, executor or administrator of the estate has such capacity or is the holder of the rights expressed therein with no conditions or limitations other than those expressed therein.
- Any person who under the information contained in a certificate may make payments or deliver assets to a person authorized under such certificate shall be deemed to have dealt with an authorized person therefor.
- It shall be a valid title for registration of the inheritance acquisition in the competent registry of a Member State, notwithstanding the exceptions contained in Art. 1.2. k) and l) of the European Regulation nº 650/2012.
The ECS may be submitted to Public Authorities or any private request of any Member State other than the issuing State to prove and certify the essential elements of a succession. That is, if an hereditary dossier has been filed before the competent authorities of a European Union Member State pursuant to the national law of such State or any other applicable law to any specific aspect of the succession and a series of elements of the succession, such as the validity of the will, the quality of heir or legatee or the existence of executors or administrators of the estate, among others, have been certified, the European citizens are provided with a legal instrument that allow them to certify these elements in any other Member State, if required.
Notwithstanding the foregoing, the ECS is not a court decision or an enforceable public document, but a new species in the world of legal titles with extraterritorial effects in the European Private International Law. Therefore, the ECS is not and cannot be subject to any declaration of enforceability or enforcement.
“…the ECS is created, which shall allow to plead in other Member State rights vested on any inheritance…”
The provisions of the new Regulation shall be applied in Europe, except for the United Kingdom, Ireland and Denmark, to successions of persons deceased as of 17th August 2015.
In conclusion, we are dealing with a new succession framework applicable on a European level, in which the territorial law and not the national law shall be taken into account when determining the applicable law to the succession, thus offering the possibility to design our succession when choosing the applicable law thereto, which is totally new in our legal system. In turn, in order to smooth the procedural aspect of international successions, the ECS is created, which shall allow to plead in other Member State rights vested on any inheritance or execution or management authorities thereon, serving also as an effective evidentiary tool for the execution of inheritances in other Member States.