In some cases, a person may be a habitual resident in one EU member state to which he isn’t a citizen. Also, he might have property in various member states. When a person in this situation passes away, complications may arise when validating the will or the succession. These types of succession are known as trans-border successions and they plant various legal issues due to the concurrence between different national jurisdictions regarding the law of succession. Apart from the necessity to determine which law ought to regulate the succession itself, another issue arises regarding proving of a succession’s essential elements in other states than the one that´s competent to regulate it.
In order to simplify the trans-border successions, the European Parliament and the European Union Counsel adopted the Regulation EU N. º 650/2012, 4 of July 2012. It’s applicable in all member states except for United Kingdom, Ireland and Denmark*. It entered into force the 17th of August 2015 and is therefore only applicable to the successions where the diseased passed away after this date. The quoted regulation has been developed by the Commission Implementing Regulation (EU) No 1329/2014 of 9 December 2014 establishing the Forms referred to in Regulation (EU) No 650/2012, and the law 29/2015, regarding the legal cooperation on civil matters which regulates the issuing of the certificate.
*The case of UK, Denmark and Ireland
The authorities in these three member states doesn’t apply the regulation which is why they aren´t considered to be “member states” in the Regulation’s meaning.
Denmark is least complicated since they don’t take part in the European legal sphere at all. Consequently, neither of the European regulations are applicable in this country.
UK and Ireland opposed themselves from the very beginning of the legislative process of developing this legal instrument for Succession Law. Both countries follow the “mortis causa” succession system in which the assets of the succession are located. The real property is considered to be located in the territory where they are actually located, and the personal property is normally considered to be located in the State’s territory where the deceased resided last.
¿What is a European Certificate of Succession?
One of the new creations of the Regulation is a document, which follows an official model, where the essential information of a succession is gathered and its purpose is to circulate successfully between member states. This document is called a European Succession Certificate and is issued by the competent authority in each member state. It’s a legal instrument for European citizens and accredits a successional action according to the state’s law of the deceased in a third state where the succession may have effects. The elements that the certificate intents to prove are the following:
- a) Who the heir or legatee is;
- b) To who a specific asset has been attributed
- c) The powers of the executor of the will or of the administrator of the estate
Since it’s voluntary to use the Certificate, its existence doesn’t stop anyone from using other documents according to a country’s legislation instead. Once the Certificate has been issued it has effects just as well as in the issuing state as in other states subject to the Regulation.
Legal effects of the European Certificate of Succession
The efficiency of the European Certificate of Succession can be explained in three aspects:
a) Offering a legal protection to the actors in a succession
The Regulation EU N. º 650/2012, 4th of July 2012 seeks to offer legal protection to those who intends to perform legal actions regarding the estate of a succession. The Regulation protects every person’s acquisition of estate as a consequence to a succession, as long as the person has been given these from the authorized person. In the same way, every entity that performs payments our deliver estate to an authorized person, according to the certificate, shall be free from responsibility regarding these actions.
b) As a form of proof of the succession
The Certificate also proves the included circumstances since this has already been accredited by the national competent authority according to the succession law applicable to the succession. There’s a presumption that the ones who appear in the Certificate has the status as heirs and legatees and that their right to the estate shall be accordingly to what the Certificate says.
In both cases, in order for the Regulation’s protection to have efficiency, it’s necessary that one that delivers or acquires estate knows that the Certificate’s content corresponds to reality. If the content doesn’t, then one must not be lacking this knowledge due to gross negligence.
c) It is a registrable title in the official records
Lastly, the Certificate works as a legal instrument that is registrable, regarding the estate, in the public records in whichever member state where it should be registered. It corresponds to the national law of each state to decide the rights and procedure of the registration.
¿Who may issue it and who may apply for it?
The issuing may be applied for at the competent authorities by anyone who is considered as an heir or legatee in a specific succession and by those who are assigned as executors or administrators of a succession.
The competent authorities for the issuing is the national courts of each state, but also whichever other authority considered competent to handle successions, according to national law, may be an issuer. In Spain, the judges and the notaries are competent to issue the Certificate.
The original Certificate will stay with the competent authority who has issued it. This authority will then hand out one or various authentic copies to the concerned. These copies are valid for 6 months. When this time limit has passed one may apply for a prolongation of the validity, or apply for a new authentic copy in order to keep using the Certificate.
¿Which are the steps of the application?
- Upon request, the notary is competent to declare the succession or any of its elements and the issuing of the certificate according to article 63 in the Regulation n. º 650/2012 where the form should be uses that is referred to in the article67 in the same Regulation. The application for the issuing of the Certificate of Succession may be presented by using the form in article 65.2 in the Regulation.
- Once the European Certificate of Succession has been issued, a notification will be added to the original document of the succession. After this, the authentic copy will be handed out to the applicant. The Certificate is considered as a public document according to article 17 in the Ley del Notariado.
¿What are the alternatives to the Certificate?
The Authority of each country in the EU who executes a succession may facilitate a national document that confirms someone as an heir, will executor or administrator of the estate.
The incentive of the European Certificate of Succession is that is has the same effects in the entire EU independently of where it was issued. A national document may have different results in other states which may delay the procedure of recognizing ones right in other member states.
Also, the European Certificate of Succession is recognized in all EU member states without requiring any special procedures.