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The new Regulation (EU) 650/2012 and the cross-border hereditary successions

Recently the Regulation EU 650/2012 on the cross-border successions has been published in the Official journal of the European Union. The Regulation completes the work begun time ago by the EU on this subject and it plugs the legislative vacuum in this specific field.

The Regulation is aimed to facilitate the EU citizens in those cases in which the hereditary successions have international implications as, for example, when the deceased, the heirs and the estate are not in the same Member State. In the practice this phenomenon occurs always more frequently.

According to the Regulation, the term “succession” means all forms of transfer – by reason of death – of assets, rights and obligations, whether by way of a voluntary transfer (when there is a testament), or a transfer through intestate succession, that is the case when there is no testament and, therefore, it is directly the law to provide who is entitled to inherit and in which quantity.

Notwithstanding the new EU discipline has not been applied yet (in fact, the implementation is provided from the 17/08/2015) its practical impact should be (and most likely, it will be) very important. In fact, the EU discipline rules as thorny as fundamental facets like the determination of the State having competence to decide the whole succession proceeding, the applicable law to the succession, the recognition and enforcement in the whole EU area of the decisions issued by the judicial authorities of a Member State, as well as the acceptance and enforcement of authentic instruments in matters of succession. Until now, on an international environment, those facets have been managed independently by the single Member States, by the means of few articles contained in their own proper and different rules on international private law (which, often, provide connecting factors that contrast against those provided by the other Member States). In Italy, for example, the discipline is provided for by the articles 42-46 of the Law 218/1995; in the Czech Republic, by the articles 17 and 18 of the Law 97/1963 Sb.

A novelty that has been introduced by the Regulation and that certainly has to be pointed out is the creation of the so called “European certificate of succession” which, for example, shall be used by heirs (and not only by them) in order to assert in the whole EU area the powers and the rights connected with their status. Thus, the certificate shall be an instrument in order to settle more speedily, smoothly and efficiently such kind of successions, granted that the certificate would consent to come through the – often complicated – bureaucratic “barriers” of the various Member States’ private and public offices.

Regarding to the matter of the competence, the main connecting factor provided for by the Regulation is the one of the habitual residence of the deceased. In fact, art. 4 provides for by that “The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole”.

The same criterion of the habitual residence (of the deceased at the time of death) shall apply also in order to determinate the law of which Member State shall rule the whole succession. The law that has been determined in such a way, shall rule specific facets as: the causes, time and place of the opening of succession, the determination of the beneficiaries and of their respective shares, the capacity to inherit, the disinheritance and the disqualification by conduct, the powers of the heirs and the transfer of the assets to them, the disposable part of the estate and the reserved shares, the obligations to account for gifts and the sharing-out of the estate.

Next to the general criterion of the habitual residence, there are dispositions that allow the person whose estate is involved to choose, as the applicable law to his successions, the law of the State whose nationality he possesses (art. 22).

With reference instead to the recognition in a Member State of the decisions on the succession proceedings issued by the authorities of a different Member State, first of all the Regulation specifies that “A decision given in a Member State shall be recognised in the other Member States without any special procedure being required” (art. 39). Then, another simplification is the one provided for by art. 74 according to “No legalisation or other similar formality shall be required in respect of documents issued in a Member State in the context of this Regulation”.

However, only once the new Regulation will be actually applied, ii will be possible to verify both the concrete advantages and gaps of the legislative intervention of the EU. These (i.e. the gaps) especially with reference to the fact that, once determined the State having competence to decide and once determined the law that rules the succession according to the EU rules, the single succession proceeding shall be anyway subjected to the national procedural rules of the single Member State in which the proceeding itself is actually carried on.

13.11.2012

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