Legislation on succession
The European Commission has recently adopted a proposal for a regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession.
Currently there is no community legislative instrument on succession, with the consequence that laws on succession in the member states vary significantly.
In proposing this regulation, the Commission recognises that there is a growing number of people who own assets in more than one member state. With increased mobility, EU citizens have second homes in, work in, or retire to, another member state. Uniform rules across the EU in this field will contribute significantly to eliminate obstacles to the free movement of persons and will assist in the better functioning of the internal market.
The Commission is proposing harmonised rules governing successions. The draft regulation will apply to successions to the estates of deceased persons covering all forms of transfer of property as a result of death. Under the draft proposal, a testator who lives abroad and has therefore exercised the right to free movement within the EU will be allowed to choose the law of his/her country of nationality to apply to the entirety of his/her succession. As a general rule, however, the law governing the succession will be that of the state in which the deceased had his/her habitual residence at the time of his/her death.
The draft regulation also includes provisions on mutual recognition and enforcement. It provides that court judgements relating to successions, deeds and wills must be recognised in the other member states without any special procedure being required.
Furthermore, the draft regulation provides for the recognition of authentic instruments in matters of succession. The Commission is proposing the creation of a European Certificate of Succession enabling the capacity of an heir or testamentary executor of a succession to be proven throughout the EU without further documents or translations required.
All EU member states would therefore have to recognise automatically the European Certificate of Succession, thereby enabling the immediate recognition of an heir's entitlement to the deceased's assets which are located in other member states. Such certificates will be issued by the competent authority which has jurisdiction to settle the succession.
In a Europe whose citizens are ever more mobile, the great difficulties caused by the disparate rules applicable to successions in the member states can no longer be ignored. The regulation on succession will make life much easier for European citizens and will bring greater legal certainty and predictability in matters of succession.
Dr Grech is an associate with Guido de Marco & Associates and heads its European law divison.