Given the special social peculiarity of the Balearic islands, our firm has been a pioneer in the introduction and study of Regulation 650/2012 of the European Union in our country, as according to us, it will have some big and important consequences. The European Union has been setting new social realities. It is calculated that more than 12 million European citizens reside in EU countries different to their origin. The free circulation of people, one of the pillars of the European Union, has provoked, during these decades, an important movement of people between the different countries (it is calculated that in the Balearic islands, live approximately 45.000 Germans and approximately 30.000 British). About 450.000 families of the EU face each year an international inheritance in different countries, with all the legal difficulties and application, which it involves (properties and heirs, residents in different countries, determination of the applicable regulation…).
REGULATION 650/2012 In order to solve the unmentionable practical problems that this involves, the European Union has adopted Regulation 650/2012 , which becomes effective on the 17th of August 2015 (the European Union´s regulations are rules of direct and general effectiveness, without the need of any legal rule of transposition). Through this regulation is promoted the objective of maintaining and developing a space of freedom, safety and justice, within which is guaranteed the free circulation of people – one of the basic pillars and key in the creation and proper functioning of the internal market. It is a regulation, which will have a great impact on the daily lives of the European citizens, as it regulates the applicable law in cases of international inheritance, the jurisdiction, the recognition and enforceability of the resolutions, the public documents and legal transactions, as well as the important creation of the European Certificate of Inheritance. It is not applicable to taxation, administrative or customs matters. Let us highlight the main new points.
1.- APPLICABLE LAW
Without any doubt, the most significant point is the setting of the applicable law of inheritance:
1.-As a general rule, the applicable law will be from the country where the deceased had his “habitual residence” at the moment of his death.
2.- This general rule of habitual residence will not be applicable, if is designated, the law of the country, whose nationality one possesses at the time of making the choice or at the time of his death.
1.1.- PRACTICAL IMPORTANCE
We are facing a regulation of great importance, which can affect a lot the European citizens, who reside in countries different to their origin. For example, a British pensioner, who resides in the Balearic islands and has not designated the British Law to regulate his inheritance, will be applied the Balearic civil law. Having in mind that the Balearic civil regulation is very different than the British one, it must be noted that whereas the Anglo-Saxon regulation allows total freedom in the access to the properties, the Balearic regulation limits it to 2/3 parts, establishing that the other 1/3 must necessarily belong to the forced heirs. Moreover, the decision of the testator will affect all of his properties, being in Spain, the United Kingdom…
1.2.- ENTRY INTO FORCE
The mentioned regulation will enter into force on the 17th Of August 2015. Nevertheless, and according to the transitional provisions it is possible to designate the applicable law to the inheritance before its entry into force, as long as it is done according to the determined rules in the mentioned regulation. Therefore, it might be advisable to designate the applicable law of inheritance before the 17th of August 2015, to avoid surprises that may be unpleasant. That is why, it is advisable to have legal advice with a trustworthy lawyer, specialising in this matter.
The power of the Court of the Member State is stipulated, as a general rule, where the originator has his habitual residence at the moment of his death. Nevertheless, the parties can agree that the power corresponds to the court of a Member State, whose law has been designated by the originator, which must be of his nationality.
3.- RECOGNITION, ENFORCEABILITY AND ENFORCEMENT OF DECISIONS
The decisions of a Member State will be recognized in the other Member States without any special procedure being required. The public documents issued in a Member State will have the same probative value as in the original Member State in another Member State. No legalisation or any other similar formality will be required for the documents issued in a Member State.
4.- EUROPEAN CERTIFICATE OF INHERITANCE
The great novelty, without any doubt. It means a real advance. Such Certificate will certify in all the European Union the quality and/or rights of each heir and the allocation of the specific properties that form a part of the inheritance. The Certificate will be a valid title for the inscription of the acquisition by inheritance in the competent registry of a Member State. With the mentioned Certificate will be avoided the huge problems of cross-border inheritance proceedings. The heirs can try its quality easily or their rights or faculties. On the whole, this is a regulation of enormous practical importance and of a great legal complexity, but it represents an advance in the construction of the European Union.
(Text: DMS Consulting Palma de Mallorca)