International inheritance within the UE
International inheritance presupposes the involvement of several countries, and involves an analysis of the rules of each of the States involved in order to understand what is the law applicable to: wills, identification of heirs and their shares, hereditary division, The powers of the heirs and executors of wills, liability for the debts of the estate and the competent Judge in the event of conflicts.
the matter is regulated by Regulation (EU) No. 650/2012 entered into force on 5 July 2012 which applies to persons who died after 17 August 2015. Regulation (EU) No 650/2012 has not repealed the various regulations of individual countries, but makes them not applicable in case they are incompatible with it. Formally, therefore, all the rules of private international law are still in force and govern all aspects not regulated by the EU Regulation.
The EU Regulation applies to all EU countries except the UK, Ireland and Denmark, which will continue to apply their national law to international succession. Other EU countries will therefore have to apply their national rules to these countries.
The tax aspects of succession, on the other hand, are governed by the national rules of the individual States, and by any bilateral agreements between them, as there is no provision for Community legislation. Regulation (EU) No. 650/2012, in fact, according to the prevailing interpretation, does not apply to tax matters, as can be seen from recital 10 (point n. 10 of the preamble), according to which “This Regulation should not apply to fiscal matters or to administrative matters governed by public law”.
The EU Regulation
In particular, it provides for:
– rules on jurisdiction, that is, rules on the Court having jurisdiction;
– rules on the applicable law, that is, which national law will govern certain specific aspects of succession;
– rules on the recognition, enforceability and enforcement of decisions (judgments) of a country in other European countries;
– rules on the acceptance and execution of public acts of individual countries;
– provisions on the European Certificate of Succession, which can be used by heirs to exercise their rights in another EU country.
Regulation (EU) No. 650/2012 provides, as a general rule, that succession is governed by the rules of the State in which the deceased had his “habitual residence” at the time of death (subject to the possibility of exceptionally applying the law of another State, but only in the cases specifically provided for by the legislator).
The succession can still be regulated by the national law of the deceased only following an express manifestation of will. The regulation, in fact, allows everyone to choose expressly as the law governing his succession the law of the State of which he is a national at the time of his choice or at the time of his death.
The law applicable to succession is very important because it governs the devolution of inheritance in the absence of a will, the rights of the legitimizers in the presence of a will and many other aspects, which are often regulated differently in the laws of different States, thus having a profound impact on the attribution of inheritance.
The new rule makes it easier to manage the succession of foreign nationals who have been legally resident for a long time in countries other than those of birth, to which the law of the place where they have their “habitual residence” appliesunless they expressed a different choice through the will.
The habitual residence of the deceased
The concept of “habitual residence” is present in the domestic laws of many Member States of the European Union, however, according to the widely prevailing opinion and confirmed by the jurisprudence of the European Court of Justice, the definition of this expression, when used in a legislative text of the European Union, it cannot be left to the jurisdiction of individual Member States, but it must be derived from Community legislation, and it is up to the European Court of Justice alone.
Regulation (EU) No 650/2012 deals with the notion of “habitual residence” in recitals No. 23, 24 and 25.
From these norms considered as a whole it is clear that the formal interpretation of the concept of “habitual residence” as a simple personal data is to be excluded, even though this may have a role in the overall evaluation. On the contrary, the purpose of the investigation required by the regulation is to identify the State with which the subject had the closest and most stable connection in the years before his death, taking into account his personal and economic interests. As part of an overall assessment, the factors to be taken into account are therefore the duration and regularity of the stay in a given State, the conditions of the stay and the reasons for it.
In this first phase of application of the regulation, we do not have the opportunity to refer to the guidelines of the case-law, but the most careful doctrine, which has followed all the stages of gestation of the regulation, has already made some important contributions.
In particular, with reference to the situation of those who reside for several years in a State other than that of which they are nationals, it is excluded that it is “habitual residence” in that State when its presence is dictated by purely professional and economic reasons (such as the carrying out of an activity, or the management of assets located there), but it has remained a close and stable social and family link with the State of origin.
The typical case is of those who stay for a long time abroad for work but return periodically and regularly to the State of origin, where his family has remained, owns a home and maintains normal social contacts.
Another hypothesis in which it is considered to exclude the “habitual residence” is that in which the presence, even prolonged, of a subject in a State is due to the need to undergo particular medical treatment.
It tends to exclude, therefore, the “habitual residence” when the presence, even prolonged, in a State is considered, in a certain sense “necessary” and not completely voluntary, and therefore can be experienced as “temporary” in the intention of the entity that maintains close links with the State of origin.
On the contrary, the requirement of “habitual residence” is deemed to have occurred when an individual voluntarily and definitively transfers the centre of his interests to a State other than that of which he is a national, creating close links with the State in which he resides, without significantly maintaining them with the State of origin.
The choice to move, therefore, must be free and, in the intentions of the subject, irreversible. The Regulation expressly allows the choice of the law governing the succession to be made only of the law of the State of which he is a national at the time of his choice or death (Art. 22). It is considered, however, that in order to determine what was the “habitual residence” of a subject it is possible to draw indications also from his manifestation of will about the law applicable to the succession, In the absence of the conditions for the validity of this choice.
It is considered, in fact, that the intention to establish permanently the centre of one’s own interests in a State (which can also be derived from the desire to subject his succession to the law of that State) must be taken into account as a subjective element, to determine, together with other relevant elements of an objective nature (such as the duration of the stay in the State and the reasons for such permanence), what the subject’s “habitual residence” was.
The european certificate of succession
Regulation (EU) No 650/2012 established the European Certificate of Succession. It is intended to facilitate practices relating to international succession.
The European certificate of succession is intended to be used by heirs, legatees and executors of wills or administrators of the estate in order to enforce their rights or exercise their powers in another Member State.
The certificate attests to the status of heir or legatee, executor or administrator of the estate, and thus allows to assert this quality and its powers by simply presenting the certificate.
Any person who makes payments or delivers goods to a person who is entitled to them on the basis of a European certificate of succession shall be deemed to have acted correctly, unless it is proved that he was aware of the falsity of the evidence or that he was unaware of it by serious misconduct. The use of the certificate is not mandatory and it does not replace internal documents used for similar purposes in different Member States.
Each Member State has identified the authority competent to issue the European Certificate of Succession. In Italy, the competence to issue the certificate has been attributed to the notary (art. 32 of the law 30 October 2014, n. 161).
A European certificate of succession may be required only for the purpose of use in another Member State, but once issued it shall also have effect in the State in which it was issued. The certificate may, however, also be required for the purpose of verifying the presence of inherited property in another Member State, where there is reason to believe so, and this considerably widens its scope for use.
Tax aspects of international succession
As mentioned above, the tax aspects of international succession are not affected by the entry into force of Regulation (EU) No. 650/2012 and, therefore, They shall continue to be governed by the national laws of each State and any bilateral agreements between them.
We must therefore consider the Italian law (art. 2 of d.lgs. 31 October 1990, n. 346), the law of the other States concerned and any bilateral Conventions against double taxation in matters of inheritance and donations.
Internazional inheritance extra-UE
In such cases, reference should be made to the national law of the State of the person whose inheritance is at the time of death.
It is, however, possible that the entire succession will be subject to the Law of the State of residence of the deceased if this is provided for by a declaration in the form of a will.
If there is a reference to national law as a connecting factor, if there are several nationalities, the law applies than the law between the States to which there is the closest connection.
If there is Italian citizenship, for example, the application of Italian law prevails. For this reason, it must be kept in mind that, in the event that the deceased was an Italian citizen or had two nationalities (including the Italian one) for the Italian legal system, Italian law will apply to the entire succession.
It is not certain, however, that the private international law of another extra-EU State complies with Italian law and, therefore, foreign law could well provide that in this case the law of another Country applies in whole or in part.
For example, in some common law countries, as well as in some civil law countries that apply the criterion of “division”However, the criterion of citizenship under Law 218/95 could be compromised by a rule of private international law of the foreign country. In such a State a rule could, in fact, refer to the application of different laws depending on the nature and situation of the hereditary property, subjecting – for example – the succession of the real estate to the Law of the place where the things are, and the succession of movable property to the law of the last domicile.
It is, therefore, always very important to compare the regulations of the countries involved, in order to act correctly; in particular, it is essential to contact competent professionals who are able to compare the different and sometimes conflicting regulations at stake.