International inheritances and wills
Globalization and the mobility of people within the European Union have led to an increase in international inheritances.
When a person dies leaving assets in different European countries or having a nationality different from the one where he or she resided, doubts may arise about the applicable law and the competent courts.
Fortunately, Regulation (EU) No 650/2012 , known as the European Succession Regulation, provides a unified framework for resolving this.
The general rule on international inheritances
In most cases, the court of the Member State where the deceased had his habitual residence will have jurisdiction to settle the entire estate.
However, if the deceased person did not have his habitual residence in any Member State at the time of his death, there are subsidiary rules:
- The courts of the Member State in which the inherited assets are located shall have jurisdiction if the deceased was a national of that State or had been habitually resident there for the previous 5 years.
- In other cases, the courts of the place where the assets are located will have jurisdiction.
For example:
A German citizen, habitually resident in Spain at the time of his death, leaves assets in Germany and Spain.
In this case, the Spanish court will be competent to resolve the entire inheritance.
However, if you resided in a non-EU country, such as Switzerland, the German court could have jurisdiction if the assets are located in Germany and the deceased retained German nationality.
The option to choose the applicable law
A key advantage of European regulations is that they allow the testator to choose to have the law of their nationality applied to regulate their inheritance , regardless of where they resided at the time of death.
Furthermore, if all parties involved in the succession process agree, the courts of the country whose law was chosen by the deceased may also assume jurisdiction to resolve the case.
This option offers flexibility and can simplify the process , but it requires avoiding challenges.
For example:
A French citizen, residing in Italy, makes a will in which he chooses that French law apply to his inheritance.
Upon your death, if all the heirs agree, the French courts may take over the case, even if the assets are located in Italy.
Assets located in other countries
When the inheritance includes assets located in countries other than that of the competent court , enforcement problems may arise.
In these cases:
- The competent court may decide not to rule on such assets if there is a risk that the decision will not be recognised or enforced in the country where they are located.
- Interested parties may also request that certain assets located in other countries be excluded from the inheritance before the court makes a decision on the matter.
For example:
An heir initiates a succession process in Italy following the death of a relative whose habitual residence was in Rome.
The inheritance includes a property in Germany.
Given the possibility that the Italian court's decision on this property will not be easily recognised or enforced by Germany, the heirs agree to exclude the German property from the succession process in Italy.
This simplifies the process in Italy and the property will be managed following the inheritance procedures directly in Germany.
The jurisdiction of the courts
The jurisdiction of the courts is declared ex officio , which means that it is not necessary for the parties to expressly request it.
However, it is essential to notify all interested parties well in advance, especially if they reside in a country other than that of the court that is hearing the case.
On the other hand, it is important to avoid initiating duplicate procedures in different Member States.
This could lead to legal conflicts and slow down the resolution of the case.
What if the chosen law is not from a Member State?
Although European regulations govern cases within the EU, they also respect the decision of the person responsible to apply the law of a country outside the Union.
The European Certificate of Succession (ECS)
One of the major new developments in the field of international inheritances is the European Certificate of Succession (ECS).
This document, although not mandatory , is an extremely useful tool for heirs and legatees who need to exercise their rights or powers in a country of the European Union, as it proves the status of heir, legatee or administrator of the estate and over which assets or powers.
The CSE is issued by the competent courts at the request of the heirs or legatees.
To process it, it is necessary to fill out a specific form that includes detailed information about the deceased, the heirs, the assets and the law applicable to the inheritance.
