In the current context, where an increasing number of European citizens reside or own assets in different countries, EU Regulation 650/2012 stands as an essential tool for managing cross-border inheritances. This regulation aims to harmonize conflict of laws and jurisdictional rules in succession matters, providing certainty and predictability to legal practitioners. However, in our daily practice, we face significant challenges when applying these principles, especially in situations involving third countries or jurisdictional conflicts.
Determination of the Applicable Law
One of the cornerstones of EU Regulation 650/2012 is the determination of the applicable law to the succession. In principle, the law of the State of the habitual residence of the deceased at the time of death governs the entirety of the succession (art. 21). This criterion responds to the need to link the inheritance to the deceased's closest environment, thus facilitating the administration of the estate.
However, the regulation allows the deceased to opt for the law of their nationality through the professio iuris (art. 22). This choice must be made in a will or act of disposition mortis causa. In our experience, the professio iuris is a useful tool to avoid fragmentation of the succession regime, especially in cases where the deceased holds multiple nationalities or assets in different jurisdictions.
Judicial Jurisdiction in Cross-Border Inheritances
EU Regulation 650/2012 establishes that the courts of the Member State where the deceased had their habitual residence at the time of death are competent to handle the entirety of the succession (art. 4). This principle of unitary jurisdiction seeks to avoid the dispersion of judicial proceedings across different jurisdictions.
However, this criterion can generate practical complexities, especially in cases where the deceased's residence is ambiguous or disputed among several jurisdictions. Additionally, the regulation provides exceptions, such as the possibility for interested parties to request the transfer of jurisdiction to another Member State with which there is a closer connection (arts. 5 and 7).
Recognition of Foreign Succession Acts
The recognition and enforcement of judicial decisions and public acts in succession matters issued in another Member State are guaranteed by EU Regulation 650/2012 (arts. 39 et seq.). This facilitates the circulation of succession documents within the EU, reducing the risk of cross-border litigation.
However, in our practice, we have observed that inheritances with elements in third countries present additional challenges. The recognition of succession acts from these countries depends on the national regime of each Member State, which can complicate the enforcement of testamentary dispositions or the administration of assets located outside the EU.
Practical Issues in Inheritances with Third Countries
When an estate includes assets in third countries, the application of EU Regulation 650/2012 may be limited. The main difficulty lies in the lack of regulatory harmonization beyond the EU's borders, creating uncertainty regarding the applicable law and the recognition of foreign decisions.
In these cases, it is crucial to analyze bilateral treaties or international agreements that may facilitate judicial cooperation. Additionally, the choice of applicable law through professio iuris can mitigate some of these issues, although it does not always guarantee automatic acceptance in non-European jurisdictions.
- Evaluate the habitual residence of the deceased with attention to criteria of stability and permanence.
- Consider the professio iuris to avoid conflicts of laws in estates with multiple jurisdictions.
- Analyze the possible concurrence of courts based on habitual residence and closer ties.
Conclusions
EU Regulation 650/2012 provides a solid framework for addressing cross-border successions within the EU, although it poses significant challenges when third countries are involved. In our practice, the correct application of these principles requires detailed analysis and advance planning to avoid costly and complex litigation. Tools like LexPartis allow us to manage these processes with greater rigor and efficiency, facilitating coordination among professionals and handling the applicable regulations.