The European Succession Regulation
As of August 17, 2015the European Succession Regulation will be applicable to international successions. An international legacy occurs when different countries are involved in the succession, such as when someone dies with Dutch nationality and a (second) house held in Italy at that time. At present, each European country currently own rules on international successions. These do not always correspond with each other and thereby prevent any country declare its own law applicable to the succession. This can lead to awkward situations. The new Regulation will attempt here to get some more clarity because the inheritance and settlement of international successions, a large part of the Member States within the EU, in the same way will be arranged.
The Regulation applies to all countries of the European Union, except Denmark, Ireland and the United Kingdom and is applicable to the succession of persons who will die on or after August 17, 2015.
The rules of the European Succession Regulation
• Main rule: the law of the last habitual residence shall apply
On an international legacy is the law of the country where the deceased had his last habitual residence. What his last habitual residence was to be determined on the basis of all relevant facts and circumstances. That is not always the country where the deceased had his last address. there needs to look at the country with which the deceased had the most social and social ties.
• The testator can make a right choice for the right of his nationality
It is possible to deviate from the general rule by making a right choice at will. The choice is limited to the law of the country of nationality at the time of the choice or at the time of his death. If a testator nationalities possession he can choose it.
With the release of a choice of law shall determine the law applicable to the succession (the heirs). After the entry into force of the Regulation, the choice of law shall determine the law applicable to the settlement of the estate.
• A European certificate of inheritance
The regulation introduces a European certificate, which allows heirs and executors can prove their rights and responsibilities in the different EU Member States. In the Netherlands, this declaration must be issued by a notary. The European certificate of inheritance can be settled an inheritance abroad. This prevents duplicate or additional procedures, with the result that a legacy faster, and therefore often cheaper, can be settled.
Current versus new inheritance inheritance
Under the current international inheritance is even so that the law of the country of last habitual residence of the deceased applies, but only if the deceased also had the nationality of that country either prior to the deaths of at least five years lived in that country. The new regulation is in principle always the law of the country of last habitual residence of the deceased applied to the estate.
Under the current international inheritance can a choice be released to either the law of the nationality or the law of the habitual residence at the time of making the choice or at the time of death. Under the regulation, the choice of law of the testator from August 17, 2015 limited to the right of his nationality at the time of making the choice or at the time of death.
Effects
Dutch
Persons can deliver both a right choice before and after August 17, 2015 Dutch nationality to Dutch law. The regulation states that the law of the last habitual residence shall apply to the international legacy when no law is chosen. For Dutch people living abroad (go) and no issue right choice for Dutch law, the law of the habitual residence will apply at the time of death. And if that habitual residence at that time Italy, there will be Italian law.
EU citizens in the Netherlands
For persons without Dutch nationality, but with their habitual residence in the Netherlands will change more. At present they can under Dutch law to release a right choice for the right of their nationality or habitual residence. From August 17, 2015 they can only issue a right choice for the law of nationality. When a non-Dutch want to make sure that will be applicable Dutch law on his legacy, then it must deliver a choice of law before August 17, 2015 to Dutch law.
Transition Date IPR
Until August 17, 2015 still applies the old law where each country has its own IPR and with a Dutch certificate of inheritance is not simply accepted in each country. A choice that is forthcoming for August 17 or done remains valid after the regulation enters into force. After August 17, 2015 the choice made in a will must be accepted in each Member State. From August 17, 2015, the choice regarding our current law so limited and it is only possible to choose the law of the country of nationality. If there is no choice in the will stated then applies the law of the last habitual residence of the deceased. By explicit inclusion in the will that no choice is made, it is implicitly made a choice for the law of the last habitual residence.
For someone who lives in the Netherlands, has their power, has a Dutch partner, but does not have Dutch nationality, will soon no longer possible to declare Dutch law applies to his estate. However, if that is the intention then there are two possibilities:
no choice of law issue which the law of the habitual residence at the time of death applies;
even before August 17, 2015 Make a choice to Dutch law.
Dutch or Italian law?
It is important that you will consult about the consequences of the applicability of Dutch or Italian law for the inheritance and settlement of your estate. So it is not possible under Italian law to close relatives deny their legal portion. Whether you opt for the Netherlands or under Italian law depends on your personal situation. What is very important for you to realize is that if you do not choose will be the right of your usual place of residence. That’s something to keep an eye on you, such as retirement, decide to live permanently in the (second) home.
© drs MJ (Margaret) Sjoerts
June 2015
