ENTRY INTO FORCE OF EU NEW SUCCESSION REGULATION

 

Anything to worry about?

 A short vision under  a Spanish scope.

DSC04080 ocaso (800x534)

Regulation EU 650/2012 will entry into force in August 2005 superseding the actual regulation based on the Spanish civil code that applies the personal law (basically his national law) of the deceased as the rule that governs all about rights of possible forced inheritors and procedures to declare them.

Regulation EU 650/2012 of the European Parliament of 4 July 2012 on Jurisdiction, Applicable law, Recognition and Enforcement of Decisions and Acceptance and Enforcement of Authentic Instruments in Matters of Succession aims to harmonize the rules within its EU signatory members.

*(England and Ireland are excluded as  non signatory countries despite what we will  latter coment)

From now on ( 17 August 2015) -and in general terms, unless a valid submission to national laws be made in advance- the court of the EU country in which the deceased had his habitual residence at the time of his/her death, shall have jurisdiction to rule on the succession as a whole, that is to say, ruling even on forced heirs (in case the national laws of the competent tribunal establish these kind of rights. e.g Spain). Note that Spanish national laws establishes forced heirs in case of having descendants ( 2/3 of the estate) and, where the surviving spouse only has right to a life interest over 1/3 of the estate ( in case of intestate succession).

For that reason I am the opinion that -more than ever- non Spaniards (EU expat), living in Spain as “habitual residents” should make a choice of the applicable law that they want to be applicable to his succession instead of the Spanish one, otherwise the Spanish rules may well govern the all succession (causes, time and place of the opening; determination of the beneficiaries, their respective shares and any obligation imposed on them; the capacity to inherit; the transfer to the heirs and legatees of assets; the power of the heirs and the executors of the wills; liability for debts under the succession; the disposable part of the estate, the reserved shares and other restrictions on the disposal of the property upon death, as well as claims against the estate or the heirs; any obligation to restore or accounts for gift, advancements or legacies…)

The way to omit application of the national laws of the habitual residence of the deceased is to make a choice for the law of the state whose nationality the testator possesses (at the time of making the choice or, at the time of his death).

The testator´s law of choice (as opposite to the laws of the State of his habitual residence) is limited to the law of his nationality (in case a double nationality choosing one) and has to be declared expressly in a form of last disposition ( in Spain on a will or testament).

Regarding British and Irish nationals, -although United Kind and Ireland has not signed the EU regulation- should bear in mind, that if living in Spain as habitual residents, the UE Regulation will be also affected on them as this regulation has a universal scope (Erga omnes basis) in Spain. Therefore, it is advisable for them to grant a will choosing their national law as well as to their national courts.

This advice is also applicable to all EU citizen, living in Spain as a habitual resident.

There are some exceptions to the general rule of habitual residence state law principle set out in art 21.2 or the EU 650/12

“Where, by way of exception, it is clear from all the circumstances of the case that, at the time of the death, the deceased was manifestly more closely connected with a state other that the State whose law would be applicable under paragraph 1( referred to habitual residence).the law applicable to the succession shall de the law of that other State.”

As a conclusion and, to my modest opinion, the EU regulation, -wanting to implement a general and uniform solution to the succession within EU-, is going to create far more problems, as there are lot definitions unsolved/ undefined;, the first of them: when and under which criteria ( fiscal..) should consider oneself as an habitual resident in one EU State within the scope por the EU regulation?