Martes, 26 Abril 2022

Creation of a European Certificate of Succession

VolverOn 17 August 2015 the Regulation (EU) No 650/2012, of 4 July, entered fully into force, also known as European Regulation on Successions, a rule with practical importance, that has changed dramatically the implementation of international Law regarding successions to the estates of deceased persons with an international element, namely, the deceased person residing or owning assets in a State other than their home state.

It might seem that the entry into force of this Regulation in 2015 is a well-known fact, but actually, this Regulation is almost unknown for many persons. More and more European and other citizens move to Spain or Portugal or any other country in the European Union. One of the consequences of the increasing mobility of persons within the European Union is the increase in international successions. In many cases, difficulties and complex issues arise from such successions due to the unevenness of the succession laws of different Member States. Thus, the European Certificate of Succession has been created.

This brings among family and inheritance law lawyers the need of counselling the clients or their relatives on the issues of aligning different applicable regulations, both in the civil and tax fields.

Thus, at BELZUZ ABOGADOS S.P.L. Marriage and Inheritance Law Department, with this article, we aim to remove any doubt and comment briefly the great transformative power of this Regulation, in this case on international successions, in which, besides the new European certificate of succession overlapping national Law, there are substantial changes to national systems of private international law. In the case of Spain, the nationality of the deceased person gives way to their place of habitual residence as a criterion to determine the applicable law and for the first time in our Law a possibility arises to choose the applicable law, being limited before to national law.

Below, we comment briefly the basics of this Regulation:

• Firstly, we should take into account that the European Regulation on Successions is applied to the successions opened from 17 August 2015. It is a community rule applicable in every European Union Member State, except Ireland and Denmark, as well as the United Kingdom, currently not belonging to the European Union. Their rules govern universally, i.e., not only for EU nationals but also for the nationals of any other country. Accordingly, EU judges and notaries will apply the same rules both to the inheritance of a Portuguese or Spanish citizen and a Moroccan, Brazilian or British citizen.

• The Regulation shall be applied to all international successions, regardless of whether the deceased person is a national of a member state, provided that they are within the European Union territory.

• The rule on article 9 of the Spanish Civil code is changed, according to which the succession is governed by the national law of the deceased person at the time of death, applying the law of the habitual residence of the deceased person, although they may decide that the law applicable to their succession is the law of their country of nationality, expressly stating it on their will.

WHAT IS THE EUROPEAN CERTIFICATE OF SUCCESSION?

• The European Certificate of Succession is an instrument with the purpose of certifying in every European Union Member State a series of issues relating to a person’ succession, i.e., its purpose is to demonstrate the status and rights of heirs and legatees, adjudication of succession property and the powers of executors and administrators of the estate.

• The European Certificate of Succession is not mandatory; may be requested by the heirs, legatees, executors or administrators, but once it is granted, any interested party may request a copy.

• In each State, the certificate will be issued by the designated authority, which in Spain are judges and notaries.

• The authority issuing the certificate of successions shall keep the original and issue certified copies, valid for 6 months, with possible extensions, to heirs, legatees, executors or administrators.

WHAT SHALL THE EUROPEAN CERTIFICATE OF SUCCESSION CONTAIN?

The Certificate shall contain the following information:

• The status of the heir or legatee.

• The shares or assets for any given heir or legatee.

• The powers of a person to execute the will or to administer the estate.

• The law applicable to the succession and their contents.

• The European Certificate of Succession shall be issued by the Court or the competent authority under the national law of the member state. The certificate shall automatically take effect in any Member State, without the need of any further procedure.

• The advantage of the European Certificate of Succession is that it has equal effect throughout the EU, regardless of the issuing country.

• The European Certificate of Succession is a fundamental part that allows the citizen to prove in all the EU their status as heir or legatee and will be introduced to the everyday life of all the parties interested.

CONCLUSION

It is important that, when a foreign national becomes a permanent resident of Spain or any other EU member state, they know that their succession shall be governed by the law of the member state of residence, unless their will states that it shall be governed by their national law. Therefore, if the foreigner resides in Spain, the succession law in the Spanish Civil Code shall be applied, including reserved shares for their children. If they’d rather be subject to their national law, they must execute their will and expressly state that they designate the law of their home country to be applied to their succession. Family and inheritance law lawyers recommend that any foreigner executing their will in Spain gives proper consideration to this issue and states in their will if they choose the law applicable to their succession to be the one of the country of nationality or habitual residence.

If the reader is in any of the situations above and has not managed their succession yet, when they do, they should consider seriously choosing their national law. If they executed their will before the entry into force of the European regulation on successions, the legal framework may have changed, and reviewing the will or agreement as to succession would be useful, in order to check its alignment with the law provisions that will presumably govern their succession. It may be appropriate to change it or choose their home country law as the applicable law. In any case, at Belzuz Abogados’ Family and Inheritance Law Department, we are at your disposal when managing your succession according to your will in the most effective and safest way.

Clara-Belzuz-FernandezClara Belzuz Fernández

Directora del Departamento de Derecho de familia y Empresa familiar

 

Belzuz Abogados SLP

La presente publicación contiene información de carácter general sin que constituya opinión profesional ni asesoría jurídica. © Belzuz Abogados, S.L.P., quedan reservados todos los derechos. Se prohíbe la explotación, reproducción, distribución, comunicación pública y transformación total o parcial, de esta obra, sin autorización escrita de Belzuz Abogados, S.L.P.

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