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Regulation (EU) on the competence, applicable law, recognition and enforcement of decisions, and authentic instruments in matters of succession

 

The Union has the objective of maintaining and developing an area of freedom, security, and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union adopts measures in the field of judicial cooperation in civil matters having cross-border implications, where necessary for the proper functioning of the internal market.

In accordance with Article 81(2)(c) of the Treaty on the Functioning of the European Union, such measures may be aimed, inter alia, at ensuring the compatibility of the rules applicable in the Member States concerning the conflict of laws and of competition.

The European Council,   16 October 1999, endorsed the principle of mutual recognition of judgments and other decisions of judicial authorities as the cornerstone of judicial cooperation in civil matters and invited the Council and the Commission to adopt a programme of measures to implement that principle.

On 30 November 2000 a programme of measures, common to the Commission and the Council, for the implementation of the principle of mutual recognition of decisions in civil and commercial matters was adopted. This programme describes the measures relating to the harmonisation of conflict-of-law rules as measures to facilitate the mutual recognition of judgments and also announces the drafting of an instrument on succession and wills.

The European Council, 5 November 2004, adopted a new programme entitled “The Hague Programme: strengthening freedom, security and justice in the European Union” [4]. This programme stresses the need to adopt an instrument on succession, addressing the issues of conflict of laws, jurisdiction, mutual recognition, and enforcement of decisions on succession and the European Certificate of Succession.

The European Council, 11 December 2009, adopted a new multiannual programme entitled “Stockholm Programme – An open and secure Europe serving and protecting the citizen”. In this programme, the European Council considered that mutual recognition must be extended to areas which are not yet covered but which are essential to everyday life, for example succession and wills, while taking account of Member States’ judicial systems, including public policy, and national traditions in this area.

The proper functioning of the internal market is facilitated by removing the obstacles to the free movement of persons who currently encounter difficulties in exercising their rights in situations of death by succession with cross-border implications. In the European area of justice, it is imperative that citizens be able to organise their succession. The rights of heirs, legatees and persons close to the deceased, as well as creditors of the estate, must be effectively guaranteed.

In order to achieve these objectives, the Regulation brought together the provisions on jurisdiction, applicable law and the recognition or, where appropriate, acceptance, enforceability and enforcement of judgments, authentic instruments and court settlements, as well as the creation of a European Certificate of Succession.

The Regulation covers all civil law aspects of succession to the estates of deceased persons, i.e. all forms of transfer of property, rights and obligations by reason of death, whether arising from a voluntary transfer by virtue of a disposition mortis causa or from a transfer by default.

The Regulation does not apply to tax matters or to administrative matters under public law. It is therefore for national law to determine, for example, the arrangements for calculating and paying taxes and other benefits under public law, whether these are taxes payable by the deceased at the time of death, or any taxes relating to the succession which are to be paid by the estate or by the beneficiaries. It is also a matter of national law to determine whether the delivery of the succession property to the beneficiaries under the Regulation or the registration of the succession property may be subject to taxation.

The Regulation does not apply to areas of civil law other than succession. For reasons of clarity, certain matters which could be considered to have a link with the matter of succession are expressly excluded.

Consequently, the Regulation does not apply to matters relating to matrimonial property regimes, including matrimonial property agreements as they are known in some legal systems insofar as they do not deal with matters of succession, or to property regimes of relationships deemed to have similar effects to marriage. However, the authorities dealing with succession under the Regulation must, depending on the situation, take into account the liquidation of the matrimonial property regime or a similar property regime of the deceased in order to determine the latter’s estate and the beneficiaries’ shares in the inheritance.

Questions relating to the creation, administration and dissolution of trusts must also be excluded from the scope of the Regulation. This exclusion does not be regarded as a general exclusion of trusts. Where a trust is created by a will or by law in relation to an intestate succession, the law applicable to the succession determined in accordance with the Regulation must govern the transfer of assets and the determination of beneficiaries.

Assets, rights, and actions created or transferred by other means than succession, for example by way of gifts, must also fall outside the scope of the Regulation. However, it is the law considered by the Regulation to be the law applicable to the succession which determines whether gifts or any other form of inter vivos disposition which has the effect of acquiring a right in rem prior to death must be reimbursed or taken into account for the purposes of calculating the beneficiaries’ shares in the estate in accordance with the law applicable to the succession.

The Regulation allows for the creation or transfer by succession of a right in movable and immovable property as provided for by the law applicable to the succession. However, it does not affect the limited number (numerus clausus) of rights in rem recognised in the legal systems of certain Member States. A Member State does not be required to recognize a right in rem relating to property located in that Member State if its legal system does not recognize such a right.

However, in order to enable beneficiaries to enjoy in another Member State the rights which have been created or transferred to them by succession, the Regulation provides for the adaptation of an unknown right in rem to the closest equivalent right in rem in the law of that other Member State. In the context of this adaptation, account must be taken of the objectives and interests pursued by the right in rem in question and its effects. In order to determine the closest equivalent right in rem under national law, the competent authorities or persons of the State whose law has been applied to the succession may be contacted to obtain further information on the nature and effects of that right in rem. For this purpose, recourse could be had to the existing networks in the field of judicial cooperation in civil and commercial matters, as well as to any other available means facilitating the understanding of the foreign law.

The adaptation of unknown rights in rem explicitly provided for in the Regulation does not exclude other forms of adaptation in the context of the application of this Regulation.

The requirements for registration of a right in respect of movable or immovable property is excluded from the scope of the Regulation. Therefore, it is the law of the Member State in which the register is located (for immovable property, the lex rei sitae) that determines under which legal conditions and in which manner the registration takes place, as well as which authorities, such as land registrars or notaries, are responsible for verifying that all requirements are met and that the documentation submitted is sufficient or contains the necessary information. In particular, the Authorities may verify that the right of the deceased over the succession property mentioned in the document submitted for registration is a right registered as such in the register or a right which has otherwise been proven to be in conformity with the legal system of the Member State where the register is located. In order to avoid duplication of documents, the registration authorities must accept documents issued by the competent authorities of another Member State whose movement is covered by the Regulation. In particular, the European Certificate of Succession issued pursuant to the Regulation must constitute a valid document for registering the property to be succeeded to in a Member State. This does not prevent the authorities processing the registration from requesting the person to submit additional information or documents required under the law of the Member State where the register is located, for example information or documents relating to the payment of taxes. The competent authority may direct the person requesting the registration to provide the missing information or documents.

The effects of the entry of the rights in the register must also be excluded from the scope of the Regulation. It is therefore for the law of the Member State in which the register is located to determine whether the entry has, for example, declaratory or constitutive effect. Thus, if, for example, the acquisition of a right in immovable property has to be registered under the law of the Member State in which the register is located in order to produce erga omnes effects or for the legal protection of the legal transaction, the time of such acquisition must be governed by the law of that Member State.

The Regulation must respect the different systems for dealing with inheritance that apply in Member States. For the purposes of the Regulation, the term ‘court’ must be given a broad meaning so as to cover not only courts in the proper sense, which exercise judicial functions, but also notaries or registry offices in some Member States, which in certain cases exercise such functions, as well as notaries and legal practitioners who, in some Member States, also exercise such judicial functions in a given succession, by delegation from a court. All the courts as defined in the Regulation must be bound by the rules on jurisdiction laid down therein. On the other hand, the term ‘court’ does not include non-judicial authorities of a Member State which, under national law, are empowered to deal with successions, such as notaries in most Member States, in cases where, as is usually the case, they do not exercise judicial functions.

The Regulation does not affect the powers that Member States may confer on Notaries in matters of succession. Whether Notaries in a Member State are bound by the rules of jurisdiction set out in the Regulation depends on whether they are included in the definition of “Court” contained therein.

Acts issued by Notaries in matters of succession in Member States must be circulated in accordance with the Regulations. Where notaries exercise judicial functions, they are bound by the rules on jurisdiction, and the decisions they issue must be circulated in accordance with the provisions on recognition, enforceability, and enforcement of decisions. Where notaries do not exercise judicial functions, they are not bound by the rules on jurisdiction, and the authentic instruments they issue must be circulated in accordance with the provisions on jurisdiction.

In view of the increasing mobility of citizens and in order to ensure the proper administration of justice in the Union and guarantee that there is a real link between the succession and the Member State in which jurisdiction is exercised, the Regulation establishes as a general link, for the purposes of determining both jurisdiction and the applicable law, the habitual residence of the deceased at the time of death. In order to determine habitual residence, the Authority dealing with the succession must make a general assessment of the circumstances of the deceased’s life during the years preceding his death and at the time of his death, taking into account all the relevant facts, in particular the duration and regularity of the deceased’s presence in the State concerned, as well as the conditions and grounds for such presence. The habitual residence thus determined must reveal a close and stable link with the State concerned, taking into account the specific objectives of this Regulation.

In some cases, determining the habitual residence of the deceased may prove complex. This would be the case, in particular, where for professional or economic reasons the deceased had moved to another country to work there, sometimes for a prolonged period, but had maintained a close and stable link with his State of origin. In such a case, depending on the circumstances, the deceased could be considered to have his habitual residence in his State of origin, where the centre of interest of his family and his social life was located. Other complex situations could also arise where the deceased had resided in various States alternately or had travelled from one State to another without permanently residing in any of them. If the deceased was a national of one of those States or had his main assets in one of them, the nationality of that State or the location of those assets could be a special factor in the overall assessment of all the objective circumstances.

As regards the determination of the law applicable to the succession, in exceptional cases where, for example, the deceased had moved to the State of his habitual residence shortly before his death, and all the circumstances of the case indicate that he had a manifestly closer connection with another State, the authority dealing with the succession may conclude that the law applicable to the succession is not the law of the State of the habitual residence of the deceased but the law of the State with which the deceased had a manifestly closer connection. However, the manifestly closer connection does not be used as a subsidiary link where the determination of the habitual residence of the deceased at the time of his death is complex.

Nothing in the Rules prevents a court from applying mechanisms designed to combat circumvention of the law, such as fraud under private international law.

The rules of the Regulation are designed to ensure that the Authority dealing with the succession applies, in most cases, its own law. The Regulation therefore provides for several mechanisms that would be used where the deceased has chosen the law of a Member State of which he was a national to govern his succession.

One such mechanism must provide the affected parties with the possibility of concluding a choice of court agreement in favour of the courts of the Member State of the chosen law. It must be determined, on a case-by-case basis and in particular depending on the subject matter of the choice of court agreement, whether the agreement is to be concluded between all the parties affected by the succession or whether some of these parties may agree to submit a specific question to the chosen court in case the decision which that court may make on that question does not affect the rights of the other parties to the succession.

A court which has initiated ex officio succession proceedings, as is the case in some Member States, must dismiss the case if the parties agree to settle the succession out of court in the Member State whose law has been chosen. Where the court has not initiated ex officio succession proceedings, the Regulation does not prevent the parties from settling the succession out of court, for example before a notary, in a Member State which they have chosen, if this is possible under the law of that Member State. Such a possibility must exist even if the law applicable to the succession is not that of that Member State.

In order to ensure that the courts of all Member States may, on the same grounds, exercise jurisdiction in matters of succession where the deceased was not habitually resident in any of those States at the time of his death, the Rules must list exhaustively, in hierarchical order, the grounds on which subsidiary jurisdiction may be exercised.

In order to remedy in particular situations of denial of justice, the Regulation must also provide for a forum necessitatis allowing, in exceptional cases, a court of a Member State to rule on a succession with a close link to a third State. One such exceptional case could arise where it is impossible to conduct proceedings in the third State concerned, for example because of civil war, or where it cannot reasonably be expected that the beneficiary will initiate or follow proceedings in that State. However, this jurisdiction based on the forum necessitatis can only be exercised if the dispute has a sufficient link with the Member State of the Court to which the case has been submitted.

In order to facilitate the life of heirs and legatees habitually resident in a Member State other than that in which the succession is being or will be conducted, the Regulation must provide for any person entitled under the law applicable to the succession to make declarations concerning the acceptance of the succession, of a legacy or a lawful estate, or concerning the limitation of their liability for the inheritance, the possibility of making such declarations in the manner laid down by the law of the Member State of their habitual residence before the courts of that Member State. This does not prevent such declarations being made before other authorities of that Member State which are competent to receive declarations under its national law. Persons who make use of the possibility of making declarations in the Member State of their habitual residence must themselves inform the Court or the Authority which is dealing with or will deal with the succession of the existence of these declarations within the time limits laid down by the law applicable to the succession.

It is not possible for a person wishing to limit his liability in respect of the debts existing by virtue of the succession to do so by a simple declaration to that effect before the courts or other competent authorities of the Member State of his habitual residence in situations where the law applicable to the succession requires him to initiate a specific legal procedure, for example an inventory procedure, before the competent court. Consequently, a declaration made in such circumstances by a person in the Member State of his habitual residence, in the form prescribed by the law of that Member State, is not formally valid for the purposes of the Regulation. Nor are documents which initiate the relevant legal proceedings to be regarded as declarations for the purposes of the Regulation.

In the interests of the proper functioning of justice, irreconcilable rulings in different Member States must be avoided. To that end, the Regulation provides for general procedural rules similar to those contained in other Union instruments in the field of judicial cooperation in civil matters.

One such procedural rule is the rule on lis pendens, which applies if the same estate case is brought before different courts in different Member States. Such a rule would determine which Court would be responsible for handling the succession.

Since successions in some Member States may be handled by non-judicial authorities, such as notaries, who are not bound by the rules on jurisdiction laid down in this Regulation, it cannot be ruled out that an extra-judicial agreement on succession and judicial proceedings concerning the same succession, or two extra-judicial agreements on succession, may be initiated simultaneously in different Member States. In such a case, it is incumbent upon the parties concerned, once they have become aware of the existence of simultaneous proceedings, to agree among themselves on how to proceed. If they fail to reach an agreement, it is for the courts having jurisdiction under the Regulation to hear and decide on the succession.

To enable citizens to benefit from the advantages offered by the internal market, while respecting legal certainty, the Regulation must enable them to know which law will be applicable to their succession. In addition, harmonised conflict-of-law rules must be introduced to avoid contradictory results. The main rule is to ensure that the succession is governed by a foreseeable law with which it is intricately connected. For reasons of legal certainty and to avoid fragmentation of the succession, it is necessary for this law to govern the whole of the succession, that is to say all the assets and rights, irrespective of their nature and whether they are located in another Member State or in a third State, which form part of the inheritance.

The Regulation must enable citizens to organise their succession by choosing the law applicable to their succession. Such a choice must be limited to the law of a State of their nationality, in order to ensure that there is a connection between the deceased and the law chosen and to prevent a law being chosen with the intention of frustrating the legitimate expectations of the forced heirs.

The choice of law must be made explicitly in a statement in the form of a mortis causa provision or must result from the terms of such a provision. The choice of law may be considered to result from a disposition mortis causa if, for example, the tortfeasor has referred in it to certain specific provisions of the law of the State of his nationality or has otherwise explicitly mentioned that law.

The choice of law made under the Regulation is valid even if the law chosen does not provide for a choice of law in matters of succession. It must, however, be for the law chosen to determine the substantive validity of the act of election, i.e. whether the person who made the choice can be deemed to have understood what he was doing and to have consented to it. The same must apply to the act of amending or revoking the choice of law.

For the purposes of the application of the Regulation, the determination of a person’s multiple nationality must be resolved as a preliminary question. The question of considering a person as a national of a State is outside the scope of the Regulation and subject to national law, including, where applicable, international conventions, in full respect of the general principles of the European Union.

The law determined as applicable to the succession must govern the succession from the opening of the succession to the transfer to the beneficiaries of the property and rights making up the inheritance as provided for by that law. It must include issues relating to the administration of the estate and liability for the debts and burdens of the estate. The payment of debts by virtue of the succession may, depending on the law applicable to the succession, include taking into account a specific order of priority of creditors.

In some cases, the rules of jurisdiction set out in the Regulation may lead to a situation where the court competent to rule on the succession does not apply its own law. Where such a situation arises in a Member State whose law provides for the compulsory appointment of an administrator of the estate, the Regulation must allow the courts of that Member State, when they are dealing with a succession procedure, to appoint one or more administrators in accordance with their own law. This does not prevent the parties from choosing to settle the succession out of court in another Member State, where this is possible under the law of that Member State. In order to ensure proper coordination between the law applicable to the succession and the law of the Member State of the Court competent to appoint an administrator, the Court must appoint the person or persons authorised to administer the estate in accordance with the law applicable to the succession, such as the executor of the will of the deceased or his own heirs or, if the law applicable to the succession so requires, a third party. However, in those specific cases where it is required by their law, the courts may appoint a third party as administrator even if this is not provided for by the law applicable to the succession. If the deceased had appointed an executor, that person cannot be deprived of his rights unless the law applicable to the succession provides for the termination of his mandate.

The powers exercised by the administrators appointed in the Member State of the Court to which the matter has been submitted must be the powers of administration which they may exercise under the law applicable to the succession. Consequently, if, for example, the heir is appointed as administrator, he must have the powers to administer the estate that an heir would have under that law. Where the powers of administration which may be exercised under the law applicable to the succession are not sufficient to preserve the assets of the estate or to protect the rights of the creditors or other persons who have guaranteed the debts of the deceased, the administrator or administrators appointed in the Member State of the Court to which the case has been submitted may, on a residual basis, exercise the powers of administration provided for to this end by the law of that Member State. These residual powers could include, for example, drawing up an inventory of the assets and liabilities of the estate, informing the creditors of the opening of the estate and inviting them to make their claims known, and taking any provisional measures, including precautionary measures, designed to preserve the assets and rights of the estate. The action of an administrator by virtue of his or her residual powers must respect the law applicable to the succession with regard to the transfer of ownership of the property and rights of the estate, including any transactions carried out by the beneficiaries prior to the appointment of an administrator, liability for the inheritance liabilities and the rights of the beneficiaries, including, where appropriate, the right to accept or renounce the succession. Such action could involve, for example, only the disposal of assets or the payment of debts where this is authorised by the law applicable to the succession. Where, under the law applicable to the succession, the appointment of a third-party administrator changes the liability of the heirs, this change in liability must be respected.

The Regulation does not preclude creditors, for example through a representative, from taking additional measures available under national law, where appropriate in accordance with the relevant Union instruments, to safeguard their rights.

The Regulation provides for the provision of information on the opening of the succession to potential creditors from Member States other than that in which the property and rights of the estate are located. Therefore, in the context of the application of the Regulation, consideration must be given to the possibility of creating a mechanism, possibly through the E-Justice portal, which would allow potential creditors from other Member States to access relevant information, so that they can make their claims known.

The law applicable to the succession must determine who the beneficiaries are in a given succession. In most legal systems, the term “beneficiaries” includes heirs and legatees, as well as those entitled to inherit, although, for example, the legal position of legatees is not the same in all legal systems. In some legal systems the legatee may receive a direct share in the inheritance, while in other legal systems the legatee only acquires a claim against the heirs.

In order to ensure legal certainty for persons wishing to plan their succession, the Regulation lays down a specific conflict-of-law rule regarding the admissibility and material validity of the provisions mortis causa. To ensure a uniform application of this rule, the Regulation must list the elements which are to be considered as elements of substantive validity. The examination of the substantive validity of a provision mortis causa may lead to the conclusion that the provision mortis causa has no legal existence.

Inheritance agreements are a type of disposition mortis causa whose admissibility and acceptance varies from one Member State to another. In order to facilitate the acceptance in the Member States of rights of succession acquired as a result of a succession agreement, the Regulation determines the law which must govern the admissibility of such agreements, their material validity and their binding effects between the parties, including the conditions for their settlement.

The law which, under the Regulation, governs the admissibility and material validity of a disposition mortis causa and, in relation to agreements as to succession, the binding effects between the parties, does not prejudice the rights of any person who, under the law applicable to the succession, is entitled to the legitimate or any other right which cannot be deprived by the person whose inheritance is involved.

Where the Regulation refers to the law which would have been applicable to the succession of the deceased who made the disposition mortis causa if he had died on the date on which he made, modified or revoked that disposition, as the case may be, that reference is to be understood as referring to the law of the State of the deceased’s habitual residence on that date, or, if he had made a choice of law under the Regulation, to the law of the State of his nationality on that date.

The Regulation governs the formal validity of all written provisions of mortis causa on the basis of rules that are in conformity with the provisions of the Hague Convention of 5 October 1961 on the Conflicts of Laws relating to the Form of Testamentary Dispositions. In determining whether a particular disposition mortis causa is formally valid under the Regulations, the competent authority does not take into account the fraudulent creation of an international element with a view to circumventing the rules on formal validity.

For the purposes of the Regulation, any legal provision that limits the permitted forms of disposition of assets due to certain personal circumstances of the holder, such as his age, is considered to relate to formal issues. This is not to be interpreted as meaning that the law applicable to the formal validity of a disposition mortis causa under the Regulation must determine whether a child has the capacity to make dispositions mortis causa. That law must only determine whether a personal circumstance, such as minority, must prevent a person from making a disposition mortis causa in a certain way.

Due to economic, family, or social considerations, certain immovable property, certain enterprises and other special categories of property are subject to special rules in the Member State of location that provide for restrictions on or affect inheritance in respect of such property. The Regulation must ensure that these special rules are applied. However, to remain compatible with the general objective of the Regulation, this exception to the law applicable to succession must be interpreted strictly. Consequently, neither conflict of laws rules subjecting movable and immovable property to different laws nor provisions providing for a higher lawfulness than that laid down in the law applicable to the succession under the Regulation can be regarded as special rules imposing restrictions on or affecting the succession in respect of such property.

To ensure uniform treatment of situations where the order of death of two or more persons whose succession would be governed by different laws is uncertain, the Regulations provide for a rule that neither of the deceased persons must have any rights in the succession of the other(s).

In some cases, it may be that no one claims an inheritance. Different legal systems have different provisions for such situations. In some legal systems, for example, the State may claim the vacant inheritance as if it were an heir regardless of the location of the assets. In other legal systems, the State may appropriate only the property located on its territory. The Regulation therefore lays down a rule that the law applicable to the succession does not prevent a Member State from appropriating under its own law the property located on its territory. However, in order to ensure that this rule does not prejudice the creditors of the estate, the condition is added that the creditors of the estate must be able to seek satisfaction of their claims from the property and rights of the estate regardless of the location of the property.

The conflict rules laid down in the Regulation may lead to the application of the law of a third State. In such cases, the rules of private international law of that State must be considered. If those rules provide for referral to the law of a third State or to the law of a third State which would apply its own law to the succession, such referral must be accepted to ensure international consistency. However, renvoi is excluded in cases where the deceased has made a choice of law in favour of the law of a third State.

In exceptional circumstances, courts and other competent authorities dealing with successions in Member States should, for reasons of public interest, have the possibility of disregarding certain provisions of foreign law where, in a particular case, the application of those provisions is manifestly incompatible with the public policy of the Member State concerned. However, the courts or other competent authorities may not apply the public policy exception in order to disregard the law of another State or refuse to recognise or, where appropriate, accept or enforce a judgment given, an authentic act or a court settlement of another Member State, where to do so would be contrary to the Charter of Fundamental Rights of the European Union, in particular Article 21 thereof, which prohibits any form of discrimination.

In the light of its general objective, which is the mutual recognition of decisions given in the Member States in matters of succession, irrespective of whether such decisions have been given in contentious or non-contentious proceedings, the Regulation lays down rules on the recognition, enforceability and enforcement of decisions similar to those in other Union instruments in the field of judicial cooperation in civil matters.

To take account of the different systems for dealing with successions in the Member States, the Regulation ensures the acceptance and enforceability in all Member States of authentic instruments in matters of succession.

Public documents must have the same or the closest comparable effect in another Member State as in their country of origin. The determination of the evidentiary value of a particular authentic act in another Member State or the closest comparable effect must be made by reference to the nature and extent of the evidentiary value of the authentic act in the Member State of origin. Therefore, the evidentiary value of a particular document in another Member State depends on the law of the Member State of origin.

The “authenticity” of a Public Document is an autonomous concept that includes aspects such as its veracity, its formal prerequisites, the powers of the Authority that formalizes the act and the procedure by which it is formalized. It also includes the facts officially stated by the competent Authority in the public document, such as that the indicated parties have appeared before the Authority on the date indicated and that they have made the statements expressed therein. A party wishing to challenge the authenticity of an authentic act must do so before the competent court in the Member State of origin of the authentic act and under the law of that Member State.

The words “the legal acts or legal relationships recorded in a public document” must be interpreted as referring to the material content recorded in the public document. The Legal Acts recorded in an authentic act may be, for example, the agreement between the parties on the division or distribution of the inheritance, a will, an agreement on succession or another declaration of will. Legal Relations can be, for example, the determination of the heirs and other beneficiaries established under the law applicable to the succession, their respective shares and the existence of legitimate or any other element established under the law applicable to the succession. A party wishing to contest the Legal Acts or the Legal Relations set out in an authentic act must do so before the Courts having jurisdiction under the Rules, which must rule on the contest in accordance with the law applicable to the succession.

In the event that a question relating to the Legal Acts or Legal Relations set out in a Public Document is raised as a Biased Question in proceedings before a Court of a Member State, that Court is competent to decide that question.

An authentic act that is the subject of an appeal must not have any probative value in a Member State other than the Member State of origin while the appeal is pending. If the appeal only concerns a specific matter relating to the legal acts or the legal relations recorded in a public document, the public document does not have any probative value in a Member State other than the Member State of origin in relation to the matter under appeal while the appeal is pending. A public document that has been declared invalid following an appeal ceases to have evidentiary value.

The authority to which, in the context of the application of the Regulation, two incompatible authentic acts are submitted must assess which, if any, of the authentic acts it is to give priority to, taking into account the circumstances of the individual case. If it is not clear from these circumstances to which authentic act is to be given priority, if any, the question is decided by the courts that have jurisdiction under the Regulation, or, if the question arises as an incidental question in the course of the proceedings, by the court before which the proceedings have been brought. In the event of incompatibility between an authentic act and a decision, the grounds for refusing recognition of decisions under the Regulation must be considered.

The rapid, swift and efficient processing of successions with cross-border implications in the Union requires that heirs, legatees, executors of wills or administrators of the estate can easily prove their status as such or their rights or powers in another Member State, for example in the Member State where the assets of the estate are located. To enable them to do so, the Regulation created a uniform certificate, the European Certificate of Succession, which is issued for use in another Member State. In accordance with the principle of subsidiarity, the European Certificate of Succession does not replace documents which may exist with similar effects in the Member States.

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, these Member States are not taking part in the adoption of the Regulation and are not bound by it or subject to its application

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not participating in the adoption of the Regulation.

 

The European Certificate of Succession

 The rapid, swift and efficient processing of successions with cross-border implications in the Union requires that heirs, legatees, executors of wills or administrators of the estate can easily prove their status as such or their rights or powers in another Member State, for example in the Member State where the assets of the estate are located. To enable them to do so, the Regulation created a uniform certificate, the European Certificate of Succession, which is issued for use in another Member State. In accordance with the principle of subsidiarity, the European Certificate of Succession does not replace documents which may exist with similar effects in the Member States.

The authority issuing the European Certificate of Succession must take into account the formalities required for the registration of immovable property in the Member State where the register is located. To this end, the Regulation provides for the exchange of information on such formalities between Member States.

The use of the European Certificate of Succession is not compulsory. This means that persons entitled to apply for a certificate does not be obliged to do so, but must be free to make use of the other instruments made available to them by the Regulation (decisions, public documents or court settlements). However, no authority or person to whom a certificate issued in another Member State is presented is entitled to request the presentation of a judgment, authentic instrument or court settlement instead of the European Certificate of Succession.

The European Certificate of Succession must be issued in the Member State whose courts have jurisdiction under the Regulation. It is up to each Member State to determine in its national legislation which authorities are competent to issue the certificate, whether they are courts as defined for the purposes of the Regulation or other authorities with jurisdiction in matters of succession, such as notaries. It is also for each Member State to determine in its domestic legislation whether the Issuing Authority may involve other competent bodies in the issuing process, for example, the involvement of bodies competent to receive declarations instead of oaths. Member States communicate to the Commission relevant information concerning their issuing authorities in order to ensure that this information is made public.

The European Certificate of Succession must have the same effect in all Member States. It is not an enforceable title in itself but must have evidential effect and be presumed to provide reliable proof of elements which have been established in accordance with the law applicable to the succession or any other law applicable to specific elements, such as the material validity of the provisions mortis causa. The evidential value of the European Certificate of Succession does not affect elements which are not governed by this Regulation, such as the question of parentage or the determination of whether an asset belonged to the deceased. Any person making payments or handing over property to a person who is entitled under the European Certificate of Succession to receive such payments or property as an heir or legatee must receive adequate protection if he has acted in good faith on the basis of the accuracy of the information provided in the certificate. The same protection must apply to any person who, on the basis of the accuracy of the information provided in the certificate, acquires or receives the property of a person entitled to dispose of it in the European Certificate of Succession. The protection must be ensured if authentic copies which are still valid are submitted. The Regulation does not determine whether such acquisition of property by a third person is effective or not.

The European Certificate of Succession must be issued by the competent authority upon request. The original of the European Certificate of Succession must remain with the issuing authority, which must issue one or more certified copies of the European Certificate of Succession to the applicant and to any other person demonstrating a legitimate interest. This does not preclude Member States, in accordance with their national rules on public access to documents, from allowing copies of the certificate to be made available to the public. The Regulation provides for the possibility of appeal against decisions of the issuing authority, including decisions to refuse to issue a certificate. In the event of rectification, amendment or withdrawal of the certificate, the issuing authority must inform the persons to whom the certified copies have been issued in order to prevent misuse of those copies.

Respect for the international commitments entered into by the Member States means that the Regulation does not affect the application of international conventions to which one or more of them were parties when the Regulation was adopted. In particular, Member States which are contracting parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws relating to the Form of Wills must be able to continue to apply the provisions of that Convention instead of the provisions of the Regulation as regards the formal validity of wills and joint wills. Consistency with the general objectives of the Regulation requires, however, that the Regulation must take precedence as between Member States over conventions concluded exclusively between two or more Member States in so far as such conventions relate to matters governed by this Regulation.

The Regulation does not preclude the Member States which are parties to the Convention of 19 November 1934 between Denmark, Finland, Iceland, Norway and Sweden, which contains provisions of private international law concerning succession, wills and the administration of estates, from continuing to apply certain provisions of that Convention, as revised by the intergovernmental agreement between States party to the Convention.

In order to facilitate the application of the Regulation, it imposes on the Member States an obligation to communicate certain information concerning their legislation and procedures in matters of succession within the framework of the European Judicial Network in civil and commercial matters.  To ensure the timely publication in the Official Journal of the European Union of all information relevant to the practical application of the Regulation, the Member States also communicate this information to the Commission before the Regulation becomes applicable.

In addition, in order to facilitate the application of the Regulation and to make use of communication technologies, standard forms are provided for the certificates to be submitted in connection with the application for a Declaration of enforceability of a judgment, an authentic act or a court settlement, and with the application for a European Certificate of Inheritance, as well as the certificate itself.

In order to achieve uniform conditions for the implementation of the Regulation, implementing powers are conferred on the Commission with regard to the creation and subsequent amendment of certificates and forms relating to the declaration of enforceability of judgments, court settlements and authentic instruments, as well as the European Certificate of Succession.

The advisory procedure is used for the adoption of implementing acts establishing and subsequently amending the certificates and forms provided for in the Regulation.

Since the objectives of the Regulation, namely the free movement of persons, the organisation by European citizens of their succession in the context of the Union, and the protection of the rights of heirs and legatees and of persons close to the deceased and of creditors of the estate, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, the Regulation does not go beyond what is necessary to achieve those objectives.

The Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. It must be applied by the courts and other competent authorities in the Member States in compliance with those rights and principles.

 

The will under Spanish law

The Testament is the document that contains the last Will of a person on how to distribute his property when he passes away. It is individual. Each person should grant his or her Will. Given the importance of this document, it is important to be well informed and have the advice of a lawyer. Last will is the most recent will of a deceased, the instrument ultimately fixing the disposition of real and personal property at the testator’s death. It is also termed last will and testament.

Granting a Will in Spain

Granting a Will is simple. First of all, the testator must decide how to leave the inheritance. The Will is revocable and can be changed as many times as you like, the last one leaves without effect the previous one.
The Notarised Open Will (or nuncupative notarised Will) is the most common because of its advantages over other forms of making one’s Will (holograph Will, sealed notarised testament, and so on). It is granted in public deed before a notary.
Previously, an attorney should inform the testator on how he can distribute his assets along with the heirs, writing this decision adjusted to the current legality. Once everything is decided, and written in two languages in two column, it is sent to the notary, making an appointment for its grant. The notary is in charge of incorporating the original testament to his protocol and submits a report on its existence to the Register of Last Wills.

Basic dispositions of the Last Will and Testament

In the Last Will and Testament, the testator chooses who he prefers to inherit his assets and rights, and if there are several beneficiaries, be heirs or legatees, how he distribute goods among them. It is not mandatory to specify what property we leave to each heir, but if we leave a beneficiary. The usual thing is to leave a percentage to each child. After the death, the heirs must make an inventory of the assets and debts of the deceased, and proceed to partition.

The testator can leave a particular property (a real estate, a jewel, money, etc.), through Legacy to a person or institution, respecting the limits imposed by the legitime quote rules.

The testator may also designate a guardian for a minor child. Also, it is possible to include other provisions, such as limiting the date or age at which a property Will become the property of an heir.

When the testator’s marital status is married, and with children, the most commonly used Will be the one in which the couple leaves the usufruct to each other and appoint heirs to the children. It consists of making the widow usufructuary of all the assets of the marriage, guaranteeing him or she the right to inhabit in the family house while he lives without the children being able to object. In no case may the widow sell anything inherited from the deceased without the children giving their consent. When the two spouses passed away, the children will acquire full ownership of the property in equal parts or as they would have.

The legitime quote

Under British inheritance law, the testator may dispose of his estate and his possessions as desired. It is completely acceptable to leave all your assets to charity, a friend, to your spouse, or any of your children.
In Spain, the testator is not always free to leave his patrimony to whom he wants and how he wants. He must respect the legitime quote right of the forced heirs. Under Spanish inheritance law, certain parts of the estate must be left to particular relatives when someone dies. These are the ‘legal beneficiaries’ and include spouse and children. It means, in the end, that the testator decides with total freedom only one-third of the estate.
The legitimate is the figure that marks the limits of the distribution of the goods to the «forced heirs». These are the descendants of the deceased, the ascendants and the spouse, in this order. The order is important because the Spanish Civil Code give priority to some over others.
The children and descendants are entitled to 2/3 parts of the inheritance, one of those thirds to be distributed equally, and the other ( a third of betterment) as determined by the testator. If there are no descendants, the ascendants are entitled to half the inheritance, or 1/3 if there is a widowed spouse. In the case of the spouse, he or she is entitled to 1/3 of the inheritance in usufruct if there were children or descendants; To half of the inheritance in usufruct, if there are ascendants, or to 2/3 of the estate in usufruct, if there were no ascendants or descendants. A will that does not dispose of property to the testator’s natural heris, depriving them of a portion of the estate to which they are entitled by law, is an unofficious testament.

As an exception, the Spanish regions of the Basque Country, Navarre, Aragon, Catalonia and the Balearic Islands have their rules which also contain legitime quotes, but with peculiarities. For example, in Mallorca and Menorca are apparent or forced heirs the children or descendants of the deceased and, failing these, the parents. If they are four children or less, the legitimate one Will be a third of the inheritance. If they are five or more, the legitime quote shall be 1/2 of the inheritance. The legitimate of the parents is one-fourth of the estate.
Regarding the rest of the inheritance, there is freedom bequeathing in the Will, although the widowed spouse Will be entitled to the usufruct of half of the estate if it there is descendants and of 2/3 if it there is parents.
In Ibiza and Formentera the descendants are legitimate in equal proportion as in Mallorca and Menorca, and in their absence, the parents are apparent heirs. The legitime quota of parents Will be 50% of the inheritance unless they are with the widowed spouse, in which case it Will be 1/3.

Causes to disinherit a forced heir

In some situations the law recognises that an heir may be deprived of his or her legitime part of the inheritance, being the most common cause to have denied to the father or mother food, physical or mental abuse, or both at the same time.
In the case of inheritance from descendant to ascendant, the Civil Code allows disinheriting if the child has been abandoned, prostituted or corrupted, lost parental authority by sentence or denied maintenance, or if one of the parents has attacked the life of the other.

Intestate succession

 The Civil law establishes the heirs to whom the inheritance corresponds following a kinship order, whether the deceased was married and with children or if the deceased had no progeny. In both situations, the person or persons -descendants, ascendants or spouse- who consider themselves heirs Will need to formalise before a notary a STATEMENT OF HEIRS ABINTESTATO. Collateral relatives who consider themselves heirs can only apply to the courts.

Our main concern is to be there when you need us. We will assist you with essential issues to deal with your Spanish inheritance, keeping in touch regularly with each of the inheritors, in a way that you do not have to be bothered with the process because you will be sure we do. All you need to do is to attend our indications, which will always be explained on the phone and registered in emails.

 

We offer you complete personal attention, advice, and support to guide you in the process, making easy your inheritance in Spain, being always available to attend you personally in our office ( the previous appointment, to make sure we have reserved enough time for you), by email or on the telephone.

 

 

key steps to accept the inheritance, from the application of the death certificate to the delivery of all assets and rights
A.- Initial Formalities: Death Certificate, Certificate from the General Registry of Acts of Last Will, Certificate from Registry of Insurances with death coverage

 

Death Certificate

 

The first move is to apply to Civil Registry of the last domicile of the deceased person for a Literal Death Certificate. It should be asked at least two copies, for different uses. This document is issued at no cost. It may be ordered online, in person in any Civil Register, or by post addressed to Civil Register of the place of death.

 

Certificate from the General Registry of Acts of Last Will
Once obtained the Death Certificate, the heir must apply for a certification from the General Register of Last Wills. He must wait fifteen working days since the death of the deceased before ordering.
The General Registry of Last Wills is an administrative Registry where are recorded all wills made by a person throughout his life. The original documents are not sent to this registry but remain safeguarded by the notary who authorised the will.
The heir must file or send the death certificate (not a photocopy) and a copy of the paid administrative fee -Form 790-.
This certification confirms whether or not the deceased made a will in Spain, and if so, reports only last one.

 

If the heir applies in person at the Territorial Delegation of the Ministry of Justice, the certificate will be delivered immediately. For instance, this is the address and telephone number of the Territorial Delegation of the Ministry of Justice: for the Valencian Region (Provinces of Castellon, Valencia and Alicante): Hernán Cortés, 24 – entresuelo, 46004 VALENCIA. registro.valencia@mju.es. +34963943558

 

Life Insurance Central Registry Certificate
Occasionally the heir or heiress of a life insurance policy is not aware of its existence, and consequently, they would never come to claim it. Could happen that even the deceased ignored he had such insurances because they came associated with other financial products. The deadline to apply for the compensation of life insurance is five years.
If these amounts are not claimed within this period, they will be lost. Therefore in 2005 was created a Register of Life Insurance Contracts with Coverage for Death, where insurance policies are recorded. To see if the deceased had life insurance you should request a certificate of insurance contracts covering death.

 

B.- Succession Title: Will or Declaration of Heirs

Last Will
To continue the proceedings the heir needs an authorised copy of the will. If the deceased made a will in Spain, shall appear on the certification we have obtained from the General Registry of Acts of Last Will. He may did several, although the only testament of significance will be the later dated.
The certification indicates the date of the will, the name of the notary where it was granted, and the Notary office where was granted.
With this information, the heir knows in which Notary office he can request the authorised copy of the will. The application can be made in person at that notary’s office, but only one of those individual mentioned in the will or interested in the inheritance (or a representative with special power of attorney ); it can be applied also by post by sending a request signed behalf of any notary. Once legitimised the signature on the application, we can send to the notary where the will is protocolised, together with the certificate of last will and an original death certificate.
The authorised copy of the will has a cost that depends on the number of pages of the original will and the time it was granted. It will take from the application notice at notary’s office about 4 days.
Having the will is crucial because it will show who is the heir, and when several, in which percentage.

Declaration of Heirs

If the deceased granted a will in Spain, we will only know it when we get the certification of the General Register of Last Wills. When applicable the Spanish Inheritance Law, in such cases it will require always a notary to determine who are the heirs called in accordance with the Spanish law, processing the declaration of heirs.

The procedure to be followed in such cases is simple; First, must be determined a competent notary; at the applicant’s choice: the Notary of the last domicile of the deceased, or wheresoever’s most of inheritance estate is located, or the place of death, or a notary of a district adjacent to any of the above.

Documents to show to the Notary:

1. ID of the deceased or otherwise registration certificate.
2. Original death certificate and certification Last Will. 3. Birth certificates for all the heirs.
4. Death certificates of the inheritors predeceased to Notarial Declaration of Heirs, and those with closest kinship.
5. Family Book.
6. Two witnesses who know well the family to declare they know that there are not other heirs.
7. Signature at the Notary. Once you have all these documents together, you need to take them to the notary’s office, prepare the deed with his officials, make an appointment and come that day with two witnesses, to sign de Inheritors Declaration Deed behalf the notary.
8. Since signing the deed until the notary declares formally who the intestate heir is, must wait at least 20 working days, which in practice becomes almost a month. Since then, heirs can obtain a notarised copy of it, where who are the heirs and their share on it will be declared.

C.- Inventory : Assets, Real Estate, Cash, Current Accounts balances or positions, Shares, Vehicles, Insurances, House equipment

First of all, you have to locate the title deeds of property of the deceased. Next, you have to ask for «Fincas Localization Notes», to identify in which Registries of Spain appear properties, and finally, a «simple note» of those. In addition to identifying them, we will know the mortgage charges or liens that fall on each of them. If you are aware of an existing property not registered in the Land Registry, other means of localisation is the Real Estate Cadastre.

Cash, bank account balances and securities

With original copies of the Certificate of Death, Certificate of Last Will, and Testament (or Declaration of Heirs), all banks must be requested in writing to issue a certification of all balances, shares and securities owned by the deceased, Referred to the day of his death.
Banks charge fees for certifying balances of bank accounts and securities. Since these certificates have a cost, you can start by collecting the bank documents that the deceased had at home. Limit the search to those banks, and to the bank accounts that are identified in the last declaration of the Spanish Income Tax -IRPF-; And, finally, go bank by bank asking if statements appear in his name, and if so, you are entitled to apply for the balance certificate.
The bank blocks all accounts of the deceased as soon as they are aware of his death. You can only take the money from them when you show the bank to have paid the inheritance tax and your status as heir.
As for the vehicles, once the taxes have been paid, the ownership must be transferred to the heir or legatee in the General Direction of Traffic.

Assets valuation

All property, rights and shares must be valued according to their real value (market value). Usually, the market value and the cadastral value rarely coincide. The valuation must be made taking into account the state of the goods to the day of the death.
The Spanish Regions have been establishing criteria to value the real estate, taking the cadastral value as the starting point. For instance, in inheritances on properties located in the Valencian Region suffices to know the cadastral value for its calculation, to which a multiplier coefficient is applied. However, the Canary Islands do not have fixed valuation criteria, so you have to take into account the real market value.

Assessment of the Usufruct
The valuation of the usufruct is decisive to calculate the inheritance tax payable by the usufructuary and by the “nude owner”, It is also important if usufructuary must be compensated in cash or other rights in full domain, instead of usufruct.
The national ISD law establishes these rules: – Temporary usufruct: 2% of the total value for each year, without exceeding 70%. – Lifetime usufruct: 70% of the total value when the usufructuary is less than 20 years old, subtracting as age increases, 1% for each year more than nineteen, with a minimum of 10% of the total value. – Formula: 89 – usufructuary age =% to be applied with a maximum of 70% and a minimum of 10%.
Valuation of the Nude Property.

The value of the “nude property” right derives from the difference between the value of the usufruct and the total value of the property.
Full value domain = nude property value + usufruct value.

Debts of the deceased

By accepting the inheritance, the heir receives property and rights, but also debts, becoming obliged to pay them not only with the inherited rights but also with his previous property. For this reason, if you know that the deceased had debts and obligations you have to consider whether to accept the inheritance.
A person takes the inheritance tacitly if he performs any act that implies having assumed the status of the heir, for example by using or selling a property, or by spending money on it. In other words, acceptance of the inheritance may be express or implied, and it has strong legal consequences.
If the debts are higher than rights, the option to exercise the right to renounce inheritance before a notary (in a private document does not have validity) or to accept it for the benefit of inventory, must be taken into account.

Debts of the inheritance

These are obligations generated by the succession itself, such as burial and funeral expenses, authorising Notary, Property Registry, Lawyer, Certifications, and Inheritance Tax, Municipal «Plusvalia», fees for the certificate of the General Registry of Last Acts Will, the certificate of the Life Insurance Registry, the application for the authorised copy of the will, fees for transfers of vehicles , Bank fees for the issuance of balance certificates.

Life insurances

The deceased may have designated a life insurance beneficiary to a person who has nothing to do with his heirs since the amounts that are collected by the life insurance are not part of the inheritance. However, in cases where there is no specific designation of life insurance beneficiaries, the amounts will correspond to the heirs. When making the liquidation of the Inheritance Tax, the amounts that are received by life insurances must be included.

Domestic trousseau

Domestic trousseau or garments (furniture and household goods) are awarded in principle to the surviving spouse, being jewels and other objects of extraordinary value not included. It is estimated at 3% of the total value of the inheritance, unless the heir party assigns a higher value, demonstrates that it is nonexistent or that its value is lower than that resulting from the application of said percentage.
The widower or couple may have the right to be assigned the usual family accommodation.

Preparing all the paperwork for Notarization

Why Do I Need a Lawyer to deal with my inheritance?

Bureaucratic paperwork Services…

Putting in order deeds, assets, taxes…

Services after the signing of the inheritance deed

 

don’t worry

We will prepare it for You

 

Bureaucratic paperwork Service, we will…

  •  Procure bank account certificates
  • Open a new bank account for the inheritors
  • Obtain the Spanish last will certificate
  • Get from the town council registration records
  • Claim life insurance rights

 

Putting in order deeds, assets, taxes…

  •  Application for inheritor’s NIE
  • Prepare a PoA in Spain or the United Kingdom, to avoid you travelling too many times unnecesarily
  • Get from the Notary a copy of the Last Spanish Will granted by the deceased.
  • Prepare the Deed of Acceptance of the Inheritance at the Notary, for you to sign, or us in your representation using the PoA.
  • An exact estimate of the Spanish Inheritance Tax to be paid by each inheritor.

 

 

Services after the signing of the inheritance deed

Fill the official Forms for the Spanish Inheritance Tax, and pay it in your bank account within the deadline of the six-month term since the demise

Pay to the Town Council the so-called «plusvalía tax» for the inheritance (local tax based on the increase in the value of the land)

Registration of the change of ownership at the Land Registry, by presenting the deed and tax paid

Modify holder’s of the inherited bank accounts, of transfer the remaining funds to the new one and close down the old ones

Pass to your name and bank account all utility services and bills

Communicate new owner’s name and title to the community of owners, when applies

Advice and support with the yearly Spanish taxes that inheritors shall assume as new owners

Prepare titles and all documents required just in case inheritors decide to sell the property

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