On the 4th of July 2012 the regulation 650/2012 of the European Union was approved to try to unify the European legislation on successions due to the increase in the movement of European citizens and the fact that they may have assets or other kind of relations in different countries. It regulates the competence, the law applicable the recognition and execution of resolutions in succession in the European Union.
Entry into force
In Spain the regulation will enter into force on the 17th of August 2015 and will be applied to any succession originated since that date.
The regulation will be applied to the transnational successions irrelevant of the nationality of the deceased if they take place in the countries of the European Union which are bound by same or to the citizens of those countries.
Although this is an EU regulation it will not be applicable in Denmark, Ireland and United Kingdom. It will however affect those citizens from these countries that reside normally in another member state bound by the regulation.
It is not applicable to an European citizen that resides in the country of his nationality and has all his assets there.
The regulation applies to all which is related to succession, simple or joint Wills and agreements on succession. Amongst the issues expressly excluded are tax and administrative issues, also civil matters relating to the legal status, legal capacity, economical regimes, gifts, and company law. Also it does not regulate the requirements for the registration in the Land Registry of any rights on property be movable or real estate.
As general rule the courts of the member state where the deceased had his permanent address at the time of the death will be competent to resolve any issue on the succession, unless the deceased had chosen his personal law, i.e the law of his nationality to apply to his succession, in this latter case the courts of the country of the nationality state will be competent.
Law applicable to the succession
In Spain, at present the civil code establishes that the law applicable to a succession is the personal law, i.e. the law of the nationality of the deceased at the time of his death.
The new regulation establishes as general rule that the law applicable to all the succession is the law of the country where the deceased had his last permanent address except in the case that this person was more closely connected to another state in which case the law of this latter one would be applicable.
However, the regulation expressly allows that one can choose that the law to be applied to his succession is his/her personal law, i.e. that of the country of his nationality at the time of his death, having to expressly state this in a Will.
Therefore at the time of a transnational succession the first thing which should be established is which law is applicable.
Resolutions of a member state
The regulation establishes as a general rule that the resolutions issued by a member state are recognized in the other member state with the same execution force unless they have been issued against the public order or issued in default of the defendant.
Also the regulation establishes that the public documents issued in a member state will have the same proof value and execution force in the other member countries.
European certificate of succession
In order to be in a position to arrange for a transnational easy and quick succession its is required that the heirs, legatees, executors and others interesting parties can easily prove their rights in the succession in another member state where assets are located to be inherited. To this effect an European succession certificate is issued by the country on the application of the interested party, which has automatic validity in the other member states, the application of same being voluntary. Once the law applicable is established in a succession, the competent authorities of this state can issue the certificate to confirm the succession rights that has a citizen (heir, legatees, executors, administrators, etc.). Each state will establish who the competent authorities are to issue the certificate. In Spain they will be the Notaries and courts.
Importance of the regulation
The importance of this new regulation is that it tries to unify and facilitate the procedure of the succession when more than one country is involved and which affects mainly the citizens of the European Union.
Also it allows them to choose the law applicable to the succession which can be the personal law, i.e. the law of the nationality or the law of the country of the last permanent address of the deceased; this is an important matter to take into account when planning the succession. The internal inheritance regulations applicable in the countries of the EU are very different, i.e., in Spain there is an obligation by law to leave part of the Estate compulsory to certain heirs, this being something not known in other countries of the EU and if not foreseen can have detrimental effects for the interested parties.
Please note the information provided in this article is of general knowledge only and is not to be construed or intended as substitute for professional legal advice.