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Habitual residence and succession certificate

Since its entry into force on July 4, 2012, Regulation 650/2012, relating to jurisdiction, applicable law, recognition and execution of resolutions, acceptance and execution of public documents regarding mortis causa successions and the creation of a European succession certificate, measures have been adopted in the field of judicial cooperation aimed at ensuring an area of ​​freedom, security, and justice, with the main purpose of guaranteeing the free movement of people within the European Union.

The main function of this Regulation is the creation of a general nexus, for the purposes of determining both the jurisdiction and the applicable law, and the habitual residence of the deceased at the time of death.
It can be said that the objective of this Regulation is to unify the legislation of the Member States of the European Union in relation to jurisdiction, the applicable law, the recognition and execution of resolutions, the acceptance and execution of public documents regarding mortis causa successions.

It only applies to successions due to death, therefore, as established in sections 1 and 2 of Article 1 of the Regulation, the following matters are excluded from the scope of application:

  • Tax, customs and administrative issues.
  • The marital status of natural persons.
  • Legal capacity and matters relating to disappearances, absences or presumption of death.
  • Marital economic regimes.
  • Food obligations.
  • Formal validity of mortis causa provisions made orally.
  • Assets, shares and rights created or transmitted by title other than donation (liberalities, joint ownership, pension plans, etc.). All of them provided for in the first article of this Regulation. 

As a general rule, the Regulation establishes that the courts of the Member State in which the deceased had his habitual residence will be competent to resolve the entire succession. This point is a great novelty, since article 9.8 of the Civil Code established that the applicable law was that of the nationality of the deceased.

In this way, article 20 establishes that the law applicable to the entire succession will be that of the State in which the deceased had his habitual residence at the time of death. If the deceased maintained a closer connection with a different State, the applicable law will be that of that other State.

Article 22 provides that the deceased may choose as the applicable law, the law corresponding to his nationality, or the law of the State where he has his habitual residence. In this case, you must expressly state it in the will.

Resolutions issued in one Member State will be recognized in the other Member States without the need to resort to any procedure.

The European succession certificate is created that will be issued to be used in another Member State and that will produce the presumption that the person who signs it as heir, legatee, etc., has the quality indicated therein.

The purpose of the certificate, as enumerated in article 63, is to be used by heirs, legatees who have direct rights in the inheritance and executors of wills or administrators of the inheritance who need to invoke, in another Member State, their status as such or exercise your rights.

With all this, the aim is to streamline the succession procedure between different States.

Notarial intestate succession

Notarial intestate succession has caused the regulations that regulate inheritance matters to be modified, as well as the Civil Code and the Notarial Law. It is necessary to make special mention of this last law, since the Voluntary Jurisdiction Law has caused the inclusion of a new article, 55, and which establishes all those people who are considered to succeed a deceased person intestate may request a declaration of intestate heirs, which will be processed and authorized by the competent Notary where the deceased had his last domicile or habitual residence, or where the majority of his assets were located, or in the place where he died, at the applicant's choice.

The request document will be initiated at the request of any person with a legitimate interest, an interest subject to assessment by the Notary.

It is worth highlighting the regulatory scope of these new developments on the Public Administration Heritage Law, and that through them the Public Administration is recognized with the power to declare an intestate heir, in favor of the General Administration of the State and of the Autonomous Communities. This fact entails the modification of article 14 of the Mortgage Law, and has its explanation in the recognition as a title of the hereditary succession the notoriety act for the declaration of intestate heirs and the administrative declaration of intestate heir in favor of the State or the Autonomous Communities, in addition to the European succession certificate referred to in Chapter VI of Regulation (EU) No. 650/2012, equating these titles to the will and the succession contract.

To register assets and awards of a sole heir and there is no interested party with the right to legitimate inheritance, nor a Commissioner or person authorized to award the inheritance, the succession title will be sufficient to register directly in favor of the heir the assets and rights that appear in the Registry. the deceased as the owner.

One of the novelties introduced by the Law of Voluntary Jurisdiction over the Civil Code is the new wording adopted by article 1,005 of the Civil Code, and which allows any interested party in the inheritance of the deceased to request through a Notary the heir who has a period of 30 calendar days to accept or repudiate an inheritance, and that if you do not communicate your decision, it will be considered accepted purely and simply.