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Jurisdiction, applicable law, recognition and enforcement of decisions in matters of successions are governed by Regulation (EU) n. 650/2012, as implemented by Regulation of execution (UE) n. 1329/2014, both effective from August 17th , 2015, which also create the European Certificate of Succession.

Regulation is applicable to successions opened or subsequent to August 17th, 2015[1]; UK, Ireland, Denmark are not bound by the Regulation and are not subject to its application[2].

Since Regulation n. 650/2012 deeply modify the principles regarding successions previously in force in most of the UE Member States, it is really important to fully understand how international successions are now governed.

First of all, the Regulation introduces the principle of coincidence between forum and ius: the authorities taking care of a succession (forum) do apply their own law (ius), so as to improve the efficiency of the judicial system.

In order to have forum and ius coincident, the Regulation rule  is the habitual residence, which usually corresponds to the place where the inheritance assets are mainly located[3]

As to jurisdiction

The Courts of the Member State of the habitual residence of the deceased at the time of death shall have jurisdiction to rule on the succession as a whole (article 4).

Where the law chosen by the deceased to govern his succession is the law of his nationality, and such a law is a law of a Member State, the deceased can also choose that the Courts of such a Member State shall have exclusive jurisdiction (article 5).

Where the habitual residence of the deceased at the time of death is not located in a Member State, the Courts of a Member State in which assets of the estate are located shall have jurisdiction insofar as (article 10):

a) the deceased had the nationality of that Member State at the time of death; or, failing that,

b) the previous habitual residence of the deceased was in that Member State.

As to applicable law

The applicable law to the whole succession shall be the law of the State of the habitual residence of the deceased at the time of death (article 21)[4]

Neverthless, a person may choose as governing law of his succession the law of the State of his nationality, at the time of the choice or at the time of death (article 22).

The law determined as above shall govern the succession as a whole, whether or not it is the law of a Member State  (so-called “universal application” – articles 20 and 23).

Agreements as to succession shall be admissible only if admissible, under the applicable law determined by the Regulation, to the succession of all persons involved (articles 25 and 26)[5].

The application of a provision of the law determined by the Regulation may be refused if manifestly incompatible with the public policy (ordre public) of the forum (article 35).

Where the deceased had chosen the law applicable to his succession prior to 17th August, 2015, that choice shall be valid if (article 83 n.2):

(a) it meets the conditions of the Regulation as to the applicable law, or

(b) it is valid in application of the rules which were in force, at the time the choice was made, in the State of habitual residence of the deceased or in the State of his nationality.

 

Same as above for dispositions of property upon death (i.e. a will) prior to 17th August, 2015 (article 83 n.3). If such dispositions were made in accordance with the law the deceased could have chosen under the Regulation, that law shall be deemed to have been chosen as the law applicable to the succession (article 83 n. 4).

As to recognition, enforceability and enforcement of decisions[6]

Decisions on succession matters given in a Member State shall be recognised in the other Member States without any special procedure being required (article 39).

A decision shall not be recognised if (a) it is manifestly contrary to the public policy (ordre public) of the Member State in which recognition is sought, (b) the defendant was not served in time with the application which instituted the proceedings, (c) it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought (article 40)

As to the European Certificate of Succession

The Regulation creates a European Certificate of Succession to be used in all Member States; the use of such a Certificate, however, shall not be mandatory (article 62).

Heirs or other persons having direct rights in the succession can use the Certificate in another Member State in order to invoke  their status or to exercise their rights (article 63).

The Certificate shall be issued in the Member State whose Courts have jurisdiction pursuant to the Regulation (article 64) and shall be requested and  issued by using a specific form (articles 65 and 67)[7].

The Certificate shall produce its effects in all Member States, without any special procedure being required, and it shall constitute a valid document for the recording of succession real estate properties in the relevant registers of a Member State[8].

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Taking into account the above new rules on international successions, let’s go now to apply them to some practical cases in order to better understand how do they work.

SOME PRACTICAL CASES

A Dutch citizen with habitual residence in Italy dies, without leaving a will. He was married with two children and owned two immovables, one in The Netherland and the second one in Italy. The estimated value of the inheritance is under € 1.000.000,00.

  • Succession is governed by Italian law (law of the State of habitual residence of the deceased) and Italian Courts shall have jurisdiction to rule on the whole succession. 
  • According to Italian law, the wife and the 2 sons are privileged heirs (1/3 each) and have to file a statement of succession. No inheritance tax is payable because the inheritance value is under € 1.000.000,00.[9]
  •  In order to prove their status of heirs in The Netherlands  (also in order of the property of the Dutch immovable), the heirs can apply in Italy for the European Certificate of Succession.

 

A Spanish citizen with habitual residence in France dies, choosing by will Spanish law as governing law of his succession. He owned in Spain one immovable only.

  •  Succession is governed by Spanish law (national law of the deceased, chosed by will).
  •  Disputes amongst heirs, if any, shall be referred to French Courts (forum  of the State of habitual residence of the deceased in the lack of choice, by will, of the Spanish forum).
  • The heirs according to Spanish law must file in France (State of habitual residence of the deceased) a statement of succession, and pay the inheritance tax on all the inheritance assets (including the immovable in Spain, in the lack of relevant bilateral Conventions or international Treaties between France and Spain on the subject matter).
  • If the heirs have to pay the inheritance tax in Spain for the Spanish immovable, then such a tax might be deducted from the French inheritance tax, if payable (depending on the inheritance value).

 

A German citizen with habitual residence in Switzerland (i.e. not a member State of E.U.) dies, without leaving a will. He was divorced without sons and with two brothers. He owned 2 immovables, one in Italy and the second one in Germany.

  •  Succession is governed by Swiss law (law of the State of habitual residence of the deceased); German Courts shall have jurisdiction to rule on the whole succession (forum of the State where one immovable is located) or also Italian Courts if the previous habitual residence of the deceased was in Italy (forum of the State where the second immovable is located).
  •  The heirs according to Swiss law (if not manifestly incompatible with the public policy of the competent forum – i.e. Germany or Italy - for the whole succession) must file in Switzerland a statement of succession, as well as in Germany and in Italy for the immovables located therein.
  •  The two brothers of the deceased, if heirs according to Swiss law, have to pay in Germany and in Italy the inheritance tax calculated on the value of the two immovables located therein[10].

A UK citizen with habitual residence in Italy dies. He was married with three children, and a close friend of him was appointed by will as universal heir, without any choice of applicable law and jurisdiction. He owned 2 immovables, one in UK and the other one in Italy, and a bank deposit in Switzerland.

  •  The whole succession is governed by Italian law (law of the State of habitual residence of the deceased); Italian Courts shall have jurisdiction  to rule on the whole succession.
  •  The will, even if valid and enforceable under UK law, can be contested, however, under Italian law insofar as testamentary dispositions cannot be prejudicial to rights reserved to the privileged heirs (in the case at issue, under Italian law,  the wife and the children). The inheritance, therefore, should be allotted to the heirs determined by the applicable law[11].
  •  UK, however, is not bound by the Regulation application. To the deceased’s succession, therefore, UK will apply UK law, with the so-called principle of “scission”: lex rei sitae for immovables and law of the State where the deceased was resident upon his death for movable goods.

·         Consequently:

ü  The UK immovable shall be transferred to the deceased’s friend, appointed by will (if valid and enforceable pursuant to UK law and with application of the principle of the lex rei sitae);

ü  The Italian immovable shall be transferred according to Italian law (being the applicable law as lex rei sitae under UK law, and also applicable law under the Regulation, being Italy the last habitual residence of the deceased);

ü  The Swiss bank deposit shall be transferred to the heirs as determined by Italian law (as applicable law under UK law on movable goods, and under the Regulation being Italy the last habitual residence of the deceased).

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As you can see, international successions as governed now by Regulation (EU) n. 650/2012, effective from August 17th, 2015, are not really easy to deal with. But for your convenience, Regulation of execution n. 1329/2014 (2 pages only) can give you a hand, with its 5 Exhibits (53 pages !!!) to be used for the proper application of Regulation (EU) n. 650/2012……

Good luck!

Avv. Roberto Rossi

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[1] Article 83 n. 1 

[2] Regulation premises n. 82 and 83

[3] The concept of “habitual residence” is not determined by many domestic laws, such as Italy,   whose  civil code just determine the concepts of domicile and residence: “A person’s domicile  is in the place where the center of his business and interests is located,  a person’s residence is in the place where he/she usually lives” (article 43 civil code).

[4] Italy, as well as many other EU Member Countries,  did apply,  on the contrary, the national law of the deceased  at the time of death as law applicable to his succession (article 46 n.1 Law 218/1995).

[5] Agreements as to  succession are agreements where  one or more persons make arrangements of their succession, or of their possible rights further to a future succession, or of the waiver to the same rights.  Under Italian law such agreements are null and void (article 458 civil code)  

[6] Provisions  of Regulation n. 650/2012 as to recognition, enforceability and enforcement of decisions on succession matters are very similar to those of the well known  Regulation (EU) n. 44/2001 on jurisdiction, recognition and enforcement of decisions  in civil and commercial matters.

[7] Forms were introduced by Regulation of execution (UE) n. 1329/2014, effective from 17th August, 2015

[8] In Italy, for instance, with the “Conservatoria dei Registri Immobiliari”

[9]The spouse, descendants and ascendants, under Italian law, are exempted from Inheritance tax up to € 1.000.000,00 for each beneficiary.

[10]  According to Italian tax law, the brothers are exempted up € 100.000,00,  then must pay 6% on the rest.

[11]  I. e. Italian law,  as follows: for 1/4 to the deceased close friend (share available by will), for 1/4  to the wife and for 2/4 to the three  children (shares reserved to the privileged heirs).