The European certificate of succession
Without prejudice of the specific consequences of Brexit and whether there will be changes to current existing legislation regarding matters of succession, in this article we will give consideration to the current situation regarding inheritance matters and the applicable legislation by virtue of the European Regulation on Succession.
The said Regulation introduced what is called a European Certificate of Succession and regulates its effects. The certificate proves the facts that are considered to be evidenced on the basis of the application of the legislation applicable to the succession or any other legislation that could be applicable to specific aspects of the estate of the deceased.
In Spain, the certificate can only be issued by a Spanish Notary when the succession has repercussions abroad and in those cases in which the deceased passed away after 17th August 2015.
The said certificate can only be issued at the request of the heir, the beneficiary of a legacy who holds a direct interest in the estate or the administrator or executor of the estate.
Europe supports a principle of unity in matters regarding succession and on this basis, only one legislation may regulate the succession of the deceased which, as a general rule, is the Law of the country in which the deceased maintained his habitual residence at the time of death.
An exception to this general rule is if the deceased opted for the application of his/her National Law (i.e. the law of one’s nationality) in a Will. However, in exceptional cases, if it can be proved that the deceased maintained a closer relationship with a country that were not the country of his residence at the time of his death, the law applicable to the succession would be the legislation of that other country.
As we have said above, as a general exception to the rule of the application of the legislation of the country of residence, one can opt for the application of their National
Law in a Will.
In this case, one can choose for the law of the nationality held at the time of the granting of the Will to be applicable. In the case that more than one nationality is held by the person in question, any of the National Laws of the said nationalities can be chosen.
This is another benefit of making a Will as one can ensure by means of the choice of the applicable National Law that the dispositions made in the Will are valid in accordance with the said legislation which reduces confusion or the application of another different legislation on the basis of residence which may prejudice one’s wishes.
The dispositions in the Regulation are applicable to the succession of persons who have passed away or who pass away on, or after, 17th August 2015.
In the case that the choice of the legislation applicable was made prior to the 17th August 2015 in a manner recognized by the EU Regulation or in a manner recognized by application of the rules on International Private Law at the time of the choice being made, the choice will be considered validly adopted.
In the same manner, any testamentary dispositions made prior to 17th August 2015 will be admissible and valid if they comply with the conditions established either in the Regulation or by international private law at the time that the disposition was made.
Finally, if a testamentary disposition was made prior to 17th August 2015 in accordance with a law that the testator could have chosen pursuant to the EU Regulation on succession, it will be considered that the said law was chosen as the law applicable to the deceased’s succession.
This final principle is of great importance as the choice of applicable Law could not be made prior to 2015 due to the simple reason that the EU Regulation did not exist.