Cross-border inheritances, mission impossible?

What many heirs are still unaware of is that, for cases between European Union (EU) member states, now that the European Regulation on successions has entered into force, estates may be governed by the law of the country where the testator had their habitual residence at the time of their death, or by the law of the state of their nationality (whether it is a EU country or not) if they had so chosen. Of course, it must be taken into account that legally, the acceptance of one place or another entails the automatic recognition of judgments on estates issued in the European Union country in question. This EU Regulation, which came into force in 2015, is applicable to all EU countries except Denmark, Ireland and the United Kingdom.
 
Another issue to keep in mind is that this choice will have to be confirmed by all parties involved in the estate, either expressly or tacitly (via their submission or opposition).  If one of the parties challenges or denies such a choice, requesting original application (i.e., applying the regulations that would be applicable in general, which is the law of the country of habitual residence of the deceased), it will be redirected to the court of the member state of habitual residence, with the latter applying its regulations.
 
Yet it is in the matters to which these regulations cannot be applied where we find this Regulation’s Achilles’ heel: under no circumstances may it be applied to areas of civil law other than succession. As a result of this limitation, controversy arises, since there are some issues (such as matrimonial property regimes, tax or administrative issues, etc.) which could be considered to be linked to succession but should be expressly excluded from the Regulation’s scope of application.
 
What is the “European Certificate of Succession”?
 
Another new development involved in the European Regulation’s enactment to facilitate the recognition of estates and exercise control over the matter was the creation of the “European Certificate of Succession,” which allows the status of heir or any other role involved in the estate (such as legatee, executor of the will, or administrator of the estate itself) to be recognized in other EU countries and has evidential value, having the same effects in all member states.
 
Of course, it’s a reality that this Regulation’s entry into force is already contributing to member states’ homogenization of their procedures, unifying criteria and bringing different European regulations closer together. In this sense, EU Law has provided a harmonious solution to a legal issue of great relevance, which also provides improvements such as making the succession process more economical.
 
At ICN LEGAL, we’ve worked with cross-border wills for many years, and are very familiar with international regulations, especially European regulations, which allows us to advise both domestic clients and foreigners who live in Spain and wish to prepare a will in our country with international reach.
 

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