Succession cases with a cross-border element have been coming to my law firm on a regular basis for a long time now. I associate this fact with the fact that, as citizens of the European Union, we have many opportunities to work or settle in other EU Member States. However, when deciding to take such a step, we rarely consider how it will affect possible succession issues. What rules and courts will deal with the case if a Polish citizen dies in Germany, where he has worked for years? What if a wife wants to obtain funds from her husband's Dutch bank account? These and other similar questions are dealt with by cross-border succession proceedings. It guarantees a simple and efficient settlement of a succession with cross-border implications in the European Union.
In today's article, I will discuss the most important features of this procedure and indicate in which circumstances we should use this institution, which is guaranteed to us by the EU legislator.
I cordially invite you to read this entry.
Cross-border succession proceedings - habitual residence of the testator as a basis for the application of the law of an EU country
The overall objective of a cross-border succession is to easily demonstrate one's status or the law applicable and legally binding in any EU country. It is primarily a matter of determining which court will have jurisdiction to deal with a given cross-border succession case. This institution may prove useful, for example, where the deceased's assets are located in a Member State other than that of the heir entitled to the succession.
Whether the law of a particular country will have jurisdiction to settle a case (in legal language this is called jurisdiction) will be influenced primarily by the habitual residence of the deceased testator at the time of death. And, above all, whether the deceased had a close and stable connection with the State in question. To that end, all the relevant circumstances of the deceased's life in the years preceding his death and at the time of his death should be examined. In particular, this will include:
- the duration and regularity of the deceased's presence in the country,
- the conditions and reasons for this presence (whether there was a centre of interest for his family and social life).
This assessment should be made by the authority dealing with the succession.
In theory, this issue seems obvious and unquestionable. However, practice shows that determining the habitual place of residence of the deceased or other prerequisites for the application of the rules of a particular State may be complicated by the situation of the person concerned. As a rule, the question will be determined on the basis of the habitual residence of the deceased. However, circumstances are envisaged where other conditions will apply, as discussed below.
Determination of the law applicable to the succession by the testator
Under the rules in force since 17 August 2015, and more specifically Regulation No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession and the establishment of a European Certificate of Succession, a testator may express in his will his wish that his succession be dealt with not before the court having jurisdiction over his last place of residence, but before another court. This may be his country of origin or any other country of which he is a national. Such a provision in a will can often be of considerable benefit to the heirs of the deceased.
What does cross-border succession give us?
As part of this procedure, the competent authority will determine:
- the law applicable to the succession proceedings;
- who the so-called beneficiaries are in a given succession case. That is, it will identify by name the persons who are heirs, legatees or persons entitled to the succession on the basis of other titles;
- succession issues from the opening of the succession (death of the testator) until the transfer of the components of the estate to the individual heirs entitled to inherit under the law of the country concerned;
- succession management issues;
- responsibility for any debts of the succession.
European Certificate of Succession
But what if the authority dealing with the succession case finds that the law applicable to the case will be the country in which the deceased died (e.g. the Netherlands), and the sole heir lives in Poland, i.e. in the deceased's home country? Does he then necessarily have to go to that country and deal with all the formalities relating to the succession?
Fortunately, no. The court with jurisdiction over the succession proceedings in question is able to issue a document (euEuropean certificate of inheritance), under which (without its recognition in the territory of Poland) heirs will be able to prove their right to the inheritance before courts, authorities, individuals and other institutions. The document is proof that you can come into possession of the testator's assets which are located in the country where you reside.
In the context of the European Certificate of Succession, the heirs must give an assurance with the force of a promise. It serves to confirm the data contained in the application for a declaration of inheritance, in particular the data which cannot be confirmed by means of documents. Such an assurance with the force of a promise must be given in person by at least one heir. It alone inThe application for a European Certificate of Succession may be made directly:
- at the competent German inheritance court,
- through a German notary,
- via the relevant German foreign post, i.e. for example the German consulate.
In addition, EU law also provides for the possibility for a person entitled to an inheritance to make an appropriate declaration in relation to the estate in a simple manner. This mainly concerns declarations concerning:
- acceptance or rejection of the succession,
- enrolment or compulsory participation,
- limit the liability of that person for the debts under the succession.
Such a declaration may be made before a court in the EU country where the heir resides, even if the court hearing the succession is located in another EU country.
Inheritance of immovable property in cross-border succession proceedings
Finally, it is worth noting that certain immovable properties, businesses and other specific categories of assets are subject to specific regulations. The laws of some EU Member States impose certain restrictions on, inter alia, certain immovable property located within their borders. This thus affects the issue of inheritance. Indeed, in certain situations, the inheritance may turn out to be heirless, i.e. the heir will not be entitled to acquire title to a given asset of the testator. This question, however, depends on the law in force in the country concerned.
Cross-border succession proceedings. Summary
Succession proceedings are rarely straightforward. When there is also a cross-border element, we may feel that we cannot cope with the formalities involved. EU regulations, however, have made excellent provision for this eventuality. They provide for a number of solutions whose primary objective is to support heirs who are located in another country. I hope that reading this alert has helped you to understand the principles behind the cross-border succession proceedings.
