According to article 83 of the European Regulation 650/2012, the testator will be able to choose the law to govern his succession, which will be in most cases the law of the country whose nationality he/she possesses at the time of making the choice or at the time of death. A person with multiple nationalities may choose the law of any of the countries whose nationality he possesses with the limitations established at the referred Regulation itself.
The law governs in particular:
- The causes, time and place of the opening of the succession;
- The determination of the beneficiaries, of their respective shares and of any obligations imposed on them by the beneficiary, and the determination of other succession rights
- The capacity to inherit;
- Disinheritance and disqualification by conduct
- The transfer to the heirs and, as the case may be, to the legatees of assets, rights and obligations forming part of the estate
- The powers of the heirs, the executors of the wills and other administrators of the estate, without prejudice to specific rules on the appointment and powers of an administrator of the estate in certain situations;
- The liability for the debts under the succession;
- The disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death, as well as claims which persons close to the deceased may have against the estate or the heirs;
- Any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries;
- The sharing-out of the estate.
The European Regulation 650/2012 will affect to testate and intestate successions including related issues like, the forced share (proportion of an estate which is devolved to certain heirs who cannot be totally disinherited), agreement as to successions and the right of the creditors among others. However the referred Regulation also excludes some specific matters as the ones related with the matrimonial economic regime, which are duly regulated in a different European Regulation without prejudice of the necessity of the corresponding authority to know about this figures in order to determine the inheritance and the inheritance quotes to be perceived by the different beneficiaries, mainly in the cases when the rights are determined by this matrimonial regime (for example in the case of Germany).
It should also be taken into consideration that some rights of usufruct (as for example the usufruct right of the widow), can be requested by the beneficiary upon the death of the testator but they have its real origin in the family law area. The same has to be said about the existing insurance policies and the creation, administration and dissolution of trusts. According to the content of the Regulation 650/2012, the creation of trusts will be subjected to the referred regulation only if it has been done by the formalisation of the testament or by the same law and the same happens with the assignment of goods and definition of the beneficiaries. It also excluded from this regulation the establishment of the valid legal age for creating this disposition or either limit the economic, family and social aspects to be taken into account in order to acquire certain goods as well as all issues related with the registration as well as it effects (ether declarative or constitutive effects).
The referred Regulation also deals with the nationality, the continuous residence under civil common law and the place of permanent resident. The two first concepts are expressly excluded from the referred European Regulation and in relation to the place of permanent residence it is no always easy to determine if the testator has been living in one than more places in an alternative way, for this specific cases the Regulation establishes different elements, which are not decisive but will serve in order to disclose a tight connection with a different state.
One of the most important aims of the referred Regulation is that the public documents of the different may have the same probative value or at least the most similar one, being enforceable in other country. In some cases, those public documents may be contradictory among themselves; therefore the referred European Regulation will have to determine the competent court in order to decide about these specific matters.
The European Certificate of Succession will not be an enforceable title itself neither tries to substitute any other documents issued by the authorities of different countries. This means that in Spain the existing Deed of Acceptance of the Inheritance will continue being valid. Different matter is if the European Certificate of Succession, according to the Regulation, could be registered in the Land Registry. Therefore, in order to fulfil with the content of our legislation, which remains unmodified, some specific additions could be asked. Its expedition could correspond either to the notary or to the Court, but the original copy must be kept by the authority that has originally issued it.
The creation of the European Certificate of Succession will be useful in order to make the enforcement of inheritances with international elements easier, which now a days is a quite complex matter. This Certificate of Succession will be for use by heirs, legatees having direct rights in the succession, and executors of wills or administrators of the estate who, in another EU country, need to invoke their status or to exercise their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. Once issued, the Certificate is effective in all EU countries without any special procedure being required.
The European Regulation 650/2012 will affect to testate and intestate successions including related issues like, the forced share (proportion of an estate which is devolved to certain heirs who cannot be totally disinherited), agreement as to successions and the right of the creditors among others. However the referred Regulation also excludes some specific matters as the ones related with the matrimonial economic regime, which are duly regulated in a different European Regulation without prejudice of the necessity of the corresponding authority to know about this figures in order to determine the inheritance and the inheritance quotes to be perceived by the different beneficiaries, mainly in the cases when the rights are determined by this matrimonial regime (for example in the case of Germany).
It should also be taken into consideration that some rights of usufruct (as for example the usufruct right of the widow), can be requested by the beneficiary upon the death of the testator but they have its real origin in the family law area. The same has to be said about the existing insurance policies and the creation, administration and dissolution of trusts. According to the content of the Regulation 650/2012, the creation of trusts will be subjected to the referred regulation only if it has been done by the formalisation of the testament or by the same law and the same happens with the assignment of goods and definition of the beneficiaries. It also excluded from this regulation the establishment of the valid legal age for creating this disposition or either limit the economic, family and social aspects to be taken into account in order to acquire certain goods as well as all issues related with the registration as well as it effects (ether declarative or constitutive effects).
The referred Regulation also deals with the nationality, the continuous residence under civil common law and the place of permanent resident. The two first concepts are expressly excluded from the referred European Regulation and in relation to the place of permanent residence it is no always easy to determine if the testator has been living in one than more places in an alternative way, for this specific cases the Regulation establishes different elements, which are not decisive but will serve in order to disclose a tight connection with a different state.
One of the most important aims of the referred Regulation is that the public documents of the different may have the same probative value or at least the most similar one, being enforceable in other country. In some cases, those public documents may be contradictory among themselves; therefore the referred European Regulation will have to determine the competent court in order to decide about these specific matters.
The European Certificate of Succession will not be an enforceable title itself neither tries to substitute any other documents issued by the authorities of different countries. This means that in Spain the existing Deed of Acceptance of the Inheritance will continue being valid. Different matter is if the European Certificate of Succession, according to the Regulation, could be registered in the Land Registry. Therefore, in order to fulfil with the content of our legislation, which remains unmodified, some specific additions could be asked. Its expedition could correspond either to the notary or to the Court, but the original copy must be kept by the authority that has originally issued it.
The creation of the European Certificate of Succession will be useful in order to make the enforcement of inheritances with international elements easier, which now a days is a quite complex matter. This Certificate of Succession will be for use by heirs, legatees having direct rights in the succession, and executors of wills or administrators of the estate who, in another EU country, need to invoke their status or to exercise their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. Once issued, the Certificate is effective in all EU countries without any special procedure being required.
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