- Ann Vranken - Alain De Jonge
- International succession , European Certificate of Succession , the heirs , the deceased
The European Succession Regulation (further referred to as ESR) harmonises the regulations of
International Private Law (IPR) regarding the court holding jurisdiction and the applicable law for
This is therefore a major step towards simplifying cross-border succession.
The Regulation ensures that each estate is handled in a coherent manner, under one single legal system, and by one single court. This prevents parallel proceedings and the resulting possibility of conflicting decisions.
This Regulation is applicable throughout the whole of the European Union, except in Denmark, Ireland and the United Kingdom.
An international succession exists when several different countries are involved in an estate
An international succession exists when several different countries are involved in an estate, e.g. a second residence is owned abroad, or shares or a stake are held in a company in a another Member State, if the deceased held a different nationality to that of the country of his last place of residence or has heirs who live in a different Member State, etc.
1. The Competent Court
As a general principle, the courts of the Member State, in which a deceased had his last normal
place of residence, are competent to pronounce concerning the whole succession.
There are a number of exceptions to the general principle based on the last habitual residence of the deceased, namely:
- in the event that the deceased chooses application of the law of the state of his nationality;
- if at the time of his death, the deceased did not have his habitual residence in a Member State, but goods belonging to the estate are located in a Member State;
- for certificates relating to the acceptance or waiver of a succession, a legacy or a reserved share, or for a declaration designed to limit liability in respect of the liabilities of the estate, where, under the law of that Member State, such declarations may be made before a court;
- in the event of lis pendens and related actions, namely where related actions are pending in the courts of different Member States;
- where no court of a Member State has jurisdiction pursuant to other provisions of this Regulation, the courts of a Member State may, on an exceptional basis, rule on the succession if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the case is closely connected.
2. Applicable Law
Here too, the general principle is that the general connecting factor is the deceased’s last habitual residence. The law of the state in which the deceased had his habitual residence at the time of death applies to the entire succession. This therefore applies to the whole of the estate.
The general connecting factor is the deceased’s last habitual residence
The ESR therefore opts for a single system, whereas, to date, Belgium has had a system of
scission (the habitual residence for movable goods, and the country in which it is located for
There are also a few exceptions to this general principle:
- where the deceased has chosen the law of the Member State of which he was a national to be applicable (choice of law);
- if it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State of his last place of residence;
- the application of a provision of the law of any State specified by this regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum. (Public policy exception);
The ESR also provides a number of exception regimes for last wills and testaments, declarations of acceptance or waiver of a succession, the appointment of an administrator for the estate, special rules applicable in a Member State, which impose restrictions relating to the succession of certain assets forming part of an estate, and estates without a claimant.
3. Decisions and Authentic instruments
The ESR governs the circulation of decisions relating to succession, authentic instruments and
court judgments within the European Member States.
From now on, a decision given in a Member State, shall be recognised throughout the whole of the EU.
Decisions which are enforceable in the EU country in which they are given, are enforceable in other EU countries when they are declared enforceable by the local court or competent authority at the request of a party involved, in accordance with the procedure provided in the ESR. This procedure can also be used if a decision is challenged.
Under no circumstances is the correctness of a decision passed in a Member State to be examined, (i.e. no review as to the substance).
A decision will only not be recognised if:
- such recognition is manifestly contrary to public policy (ordre public) in the Member State in which recognition is sought;
- where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so;
- it is irreconcilable with a decision given in proceedings between the same parties in the Member State in which recognition is sought;
- if it is irreconcilable with an earlier decision given in another Member State or in a third State in proceedings involving the same cause of action and between the same parties, provided that the earlier decision fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
An authentic instrument established in a Member State shall have the same evidentiary effects in
another Member State as it has in the Member State of origin, provided that this is not manifestly
contrary to public policy (ordre public) in the Member State concerned.
Authentic instruments, which are enforceable in the EU country in which they were passed, are enforceable in other EU countries if they are declared enforceable by the local court or competent authority, at the request of a concerned party.
4. The European Certificate of Succession
The ESR introduces a uniform European certificate of succession for heirs, legatees having
direct rights in the succession, executors of wills and administrators of the estate.
It can be used to provide proof of:
- the status and/or the rights of each heir and or each legatee mentioned in the Certificate, and their respective shares of the estate;
- the attribution of a specific asset or specific assets forming part of the estate to the heirs or the legatee(s) mentioned in the Certificate, (e.g. for the recording of succession property in a register of a Member State);
- the powers of the person mentioned in the Certificate to execute the will or administer the estate.
However, use of the certificate of succession is not obligatory. If documents already exist for
such purposes in the Member States, they may also be used.
The Certificate shall produce its effects in all Member States, without any special procedure being required. In principle, a certificate of succession is valid for 6 months.
5. Consequences of the ESR
The major benefit of the ESR is that it must ensure the harmonisation and simplification of the
succession law governing international estates.
From now on, there will be more clarity concerning the court holding jurisdiction and the law applicable to an international succession, and heirs are no longer obliged to approach notaries and courts in several different Member States. This makes the settlement of a cross-border estate much simpler and less expensive. However, it remains to be seen whether all of the competent authorities will be able to make the ESR a reality.
The ESR introduces a number of major changes to current Belgian succession law, both regarding the competent court and the applicable law in the event of cross-border successions.
Under the new European succession law, the law of the country of the deceased’s last habitual residence applies to the succession, and the deceased’s choice of law is limited to the law of the country of his nationality at the time of the choice of law or at the time of his death.
Persons with Belgian nationality may choose Belgian law
Thus, persons with Belgian nationality may choose Belgian law.
The system of the forced share (minimum share of the estate), to which children of a deceased are entitled in our country, does not apply in other Member States, and therefore, in certain cases, may come under pressure. It is possible that heirs will lose this protection, pursuant to the application of European succession law, if the deceased moves abroad and the law of that country becomes applicable to the estate. In such case, it may be opportune to choose the law of the country of nationality, i.e. Belgium.
Foreigners living in Belgium fall under the application of Belgian succession law, except if they choose the law of the country of their nationality.
Estate planning can be very useful for persons who own real estate in several Member States, which fall under the ESR.
The fiscal aspect of succession is not governed by the Succession Regulation. Therefore, the succession rights remain within the competence of each Member State. The marital property regime is also not yet governed by Europe.
You can consult the ESR by clicking here.