According to the European Regulation (EU) 650/2012, the Domicile of a deceased person ceases to be the connecting link (Ch. 195) and cross border succession will be governed by a specific criterion, that is "the habitual residence" of the deceased. This EU Regulation is applicable for deaths that occurred after 17 August 2015 and if this is the case then a Member State (except Denmark and Ireland) will assume international jurisdiction to adjudicate the case of inheritance in its totality, provided that the criterion of habitual residence in that specific country is satisfied.
In principle, the law that will apply to the succession is the law of the country in which the deceased had his/her habitual residence at the time of death. The country of habitual residence is the country with which the deceased has a close and stable connection/link. This country will be decided in each particular case by the authority dealing with the succession.
It is advisable that when someone is planning his/her succession, he/she can choose that, instead of the law of the country of his/her last habitual residence, the law of your country of nationality (at the time of the choice or at the time of death) should apply to his/her succession. This can be the law of an EU Member State or the law of a non-EU country (in the case of a non-EU country, he/she should ensure that the country whose law he/she have chosen will accept his/her choice of law).
It is important to stress that according to the EU Regulation only one law will apply to a succession. This law will govern the succession of all the deceased's estate and assets, regardless of whether the assets are moveable (like a car or a bank account) or immoveable (like a house) and regardless of where the deceased's assets are located (that is, even if those assets are located in several countries).
The EU Regulation introduces the European Certificate of Succession (hereinafter "ECS") which is a single document that allows heirs, legatees, executors of the will and administrators of the estate to prove their status and exercise their rights or powers in other Member States of the European Union. Once a ECS is issued it will be recognised automatically without any further procedures being required. Articles 62-73 of the EU Regulation provide for the option to execute a European Certificate of Succession, in a member state different from the one that was issued.
The European Certificate of Succession is being issued after application by the heir, legatee, executor of the will or the administrator of the estate, based on the Form V of Appendix 4 of the EU Regulation 1329/2014. When issued, the European Certificate of Succession will be recognized in all the other Member States, without any special procedure being required and the information included in it will be presumed as accurate. Also a European Certificate of Succession is valid for a period of 6 (six) months, and a relevant extension may be required upon proof of valid reason.
It is important to emphasize that the European Certificate of Succession can be issued only by the authority of the EU Member State which will be responsible to handle the deceased's succession (for example the authorities of the EU Member State where it was the last habitual residence of the deceased).
The European Certificate of Succession contains multiple information, for example the information of the deceased and the applicant of the inheritance, the information of all the possible heirs, the legislation which applies to the hereditary succession and how it was determined which legislation was applied, which part of the inherited property belongs to each of the heirs, the powers of the executor and/or administrator of the estate etc.
FAQ - European Certificate of Succession
What is an ECS?
An ECS is a document that enables heirs, legatees, executors of the will (the persons who implement the wishes of the testator) and administrators of the estate (the persons that take care of the estate before it is transferred to the heirs) to prove their status and exercise their rights in other EU Member States.
Who can apply for an ECS and when?
An ECS is not automatically issued; it must be requested after a person's death (regardless of whether or not the deceased left a will). Any heir, legatee, executor of the will or administrator of the estate who needs to prove their status or exercise their rights in another EU Member State can apply for an ECS.
Who is authorised to issue the ECS?
An ECS can only be issued by the authorities of the EU Member State that is competent to deal with the succession. These may be the authorities of the EU Member State where the deceased had his/her last habitual residence or the authorities of the EU Member State of the deceased's nationality if heirs have agreed to choose the courts of that EU Member State (see Can the heirs choose the EU Member State where the succession should be handled?). Each EU Member State decides which specific authority within its territory will issue an ECS. An ECS will often be issued by a court or a notary.
What are the contents of an ECS?
The authority that issues the ECS will fill in all the data required in the certificate in accordance with the law applicable to the succession, that is, either the law of the deceased's country of habitual residence or the law of the deceased's nationality if he/she chose that law. The certificate includes information such as: details of the deceased and of the person who applied for the ECS; details of all possible heirs; the property regime of the deceased's marriage or registered partnership (i.e. the rules that govern how property should be divided between spouses or registered partners so that the share of the deceased can be transferred to his/her heirs); the law applicable to the succession and how that law has been determined; whether or not the deceased left a will; the share of the estate that corresponds to each heir; the powers of the executor of the will and/or the administrator of the estate.
What are the advantages of an ECS?
An ECS does not replace equivalent documents existing in each EU Member State (the national certificates of succession). It is an optional alternative. However, applying for an ECS instead of the equivalent national document simplifies things if you need to prove that you are an heir (or a legatee, executor of the will or administrator of the estate) in several EU Member States because the deceased had assets in more than one EU Member State. This is so because, in accordance with the regulation, an ECS has the same effects in all EU Member States regardless of where it is issued and its recognition requires no special procedure. In contrast, the effects of a national certificate of succession are different depending on the EU Member State which issues it, and these effects may therefore need to be explained in an additional form filled in by the issuing authority.
Source (Publications Office of the European Union)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.