How does the foreign element affect the distribution of inheritance and the will?
In the globalised world in which we live, it is common that when opening the succession mortis causa of a person there is an international element to be considered. This is the case, for example, where the deceased person resided in a country other than that of his or her nationality or owned assets abroad, such as bank accounts or real estate. The normal difficulties of any inheritance are increased by this international element, and the advice of a lawyer specialising in this area is of the utmost importance.
Problems arising in international succession
When these foreign elements are present, we often have doubts about in which country we can go to the notary to open the succession or which is the competent judge if we want, for example, to contest a will because the legitimate share has not been respected or we have been forgotten in the will or we believe that part of a donation should be returned to the estate, or other circumstances that force us to initiate legal proceedings.
Problems may also arise with regard to the law applicable to the succession. It is not the same to apply a legal system that obliges children or descendants to inherit a significant part of the estate as it is to apply a legal system that allows the testator to dispose of all of his or her assets. The result will be completely different depending on whether the applicable law is one or the other, given that succession is a material area where there are many differences between one law and another.
European Inheritance Regulation
Both issues are resolved in the European Regulation 650/2012 of 4 July 2012, which applies to persons deceased after August 2015 and was created with the aim of facilitating succession when cross-border elements are involved.
International jurisdiction issues
The Regulation considers that a citizen’s closest links are at the place of habitual residence. With this in mind, it states in Article 4 that the competent courts are those of the deceased’s place of residence, although Article 5 allows an exception, namely that the courts of the nationality of the deceased may hear the case if the law applicable to his nationality was chosen in his will and the heirs agree to litigate in that country.
Article 10 of the Regulation also provides that the courts of the place where the deceased’s assets are located have residual jurisdiction when no court or authority of the European Union has jurisdiction and the deceased had assets in that country.
Universality of succession
With some minor exceptions, the judges or authorities hearing the succession have jurisdiction over the whole of the succession, i.e. over all the assets owned by the deceased both within and outside the European Union, although it should never be forgotten that if there are assets outside the European Union, it is most likely that in order to be effective abroad, the Community judgments or public documents will have to go through an exequatur or similar procedure in the State where they are intended to have effect.
Questions of applicable law
The Regulation allows in Art. 22 for the choice of law applicable to the succession in a will or disposition of property upon death, provided that the law chosen is the national law of the testator, both at the time of testament and at the time of death. The choice of law may be express, i.e. with a mention of the applicable law, or tacit, which may cause some problems later in practice.
If the deceased has not made a will or has not made a choice of law in the will, the Regulation states in Art. 21 that the applicable law is the law of the habitual residence of the deceased, which it considers to be the law most closely connected with the deceased.
The applicable law will be applied, among other matters, to determine who the beneficiaries are and what their shares are, to determine the succession rights of the spouse or unmarried partner, to disinheritance and incapacity to succeed on grounds of unworthiness, to the effects of acceptance or waiver of the inheritance or legacy, to the powers of the heirs, to the powers of the heirs and to the law applicable to the succession, to the rights of the beneficiaries and to the law applicable to the succession, to the law applicable to the succession of the deceased and to the law applicable to the inheritance, the powers of the heirs, executors of wills and other administrators of the estate, the share of free disposal, the reserved portion and other restrictions on the freedom of disposition mortis causa, the obligation to reimburse or count gifts or donations and/or the partition of the estate.