If you have inherited property, for example, in France and at the same time also in the Slovak Republic, under European legislation, the entire succession proceedings will generally take place in the state and under the law of the state where the deceased was habitually resident, at the time of his/her death. This means that in the case of international succession proceedings in the EU, the succession proceedings are conducted in only one state and regardless of location of the estate. You can easily prove your rights to your succession abroad with a European Certificate of Succession (“ECS”), which will be recognized by most EU Member States. However, complications may arise if the inheritance proceedings have been held in Denmark or Ireland, or if you inherited a real property in the Slovak Republic on the legal basis of an ECS and you utilize only a foreign decision. In this article, we try to clarify these complications and try to outline suitable solutions.
International succession proceedings held in the European Union are governed by Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (“Regulation“). The Regulation shall apply to the succession of persons who die on or after 17 August 2015. For international succession proceedings, the Regulation provides uniform rules for determination of (i.) international jurisdiction, (ii.) applicable law, and (iii.) rules for the recognition and enforcement of decisions on succession.
In practice, we can speak of international succession proceedings, for example, when the estate of the deceased is located in the Slovak Republic, but for some particular reason the authority of another EU Member State is competent for the succession proceedings. This is usually the case when the deceased Slovak citizen was at the time of his/her death habitually resident in another EU Member State, but continued to own real property in the Slovak Republic or a Slovak bank account with funds in it.
Based on the wording of Recital 23 of the Regulation, “the general connecting factor for the purposes of determining both jurisdiction and the applicable law should be the habitual residence of the deceased at the time of death….” In order to determine the EU Member State of habitual residence, it is necessary to assess with which EU Member State the deceased had a real, close and stable connection at the time of death. In practice, this may mean the following: If a Slovak citizen moved to France for work, but his wife and children remained in the Slovak Republic, while he maintained regular contact with them, the competent authority would most likely determine the jurisdiction of the Slovak authorities when assessing habitual residence, precisely because of the existence of the deceased’s real, close and stable connection with the Slovak Republic.
Determining the EU Member State with which the deceased had a real, close and stable connection will also have important economic consequences for the heirs, not least for the determination of the fees for the succession proceedings. In relation to inheritance taxes, it is necessary to mention that the Regulation leaves the question of inheritance taxation to the national law of the EU Member States concerned. This means that in the case of an estate located in several EU Member States, it will be necessary to examine the tax legislation of all these EU Member States, as the tax is not necessarily payable only to the EU Member State with jurisdiction (for example: in the Slovak Republic, inheritance tax has been abolished with effect from 1 January 2004, but in France the inheritance tax is applied in a graduated manner on the basis of a number of criteria, in particular, the degree of relationship of the heir to the deceased).
European Certificate of Succession
Moreover, the Regulation introduced the European Certificate of Succession. The main advantage of the ECS is that it has effect in all EU Member States, with no need to conduct special proceedings. In practice, this, for example, means that an heir who has an ECS from a French notary can prove his/her legal status as heir or his/her rights before a Slovak bank to the deceased’s Slovak bank account; with no need to conduct special proceedings for the recognition and enforcement of a foreign decision.
The ECS is issued by the authority with jurisdiction on international succession proceedings (in most Member States, a competent notary) on the basis of a form filled in by the successor. The different language versions of the forms are available online at the following web link: Link.
Please note that some countries such as Denmark and Ireland have not adopted the Regulation. For this reason, the uniform rules of the Regulation governing international succession proceedings do not apply to these countries and the ECS cannot be used in such cases.
The testator´s entitlement to determine in his/her last will the law applicable to the succession
Under the Regulation, the testator may choose in his/her will the law applicable to the succession proceedings, but only the law of the EU Member State of which he/she has nationality. The choice of the applicable law is consequently also relevant for determining the particular State with jurisdiction to conduct succession proceedings on the testator’s succession. Thus, the Regulation does not allow the testator to choose the applicable law of an EU Member State with which the testator has not established any close connection.
In our experience, the following topics tend to be problematic in international succession proceedings:
- Problems in registering the ownership right to real property
In Slovak practice, it arises quite often that the state administration authorities for the cadastre of immovable property (“cadastre“) refuse to register the ownership right to immovable property in favour of an heir on the basis of a foreign public title (ECS or a decision from another EU Member State).
The refusal of such applications is often justified by the competent cadastres on the grounds that the foreign public deeds do not identify the immovable property in accordance with Article 42(2)(c) of Act No. 162/1995 Coll. (“Act on the Cadastre of Immovable Property“); for example, the following identification information is missing: cadastral territory, parcel (parcel number, parcel type) land type or acreage. In our experience, it is not sufficient for the cadastre to identify the property as: “real estate of the testator located in the territory of the Slovak Republic”.
Therefore, we recommend that you, before submission of your registration application to the cadastre, to request the authority of the EU Member State that issued the ECS to additionally properly identify the real estate in the ECS; together with your application it is advisable to submit: (i.) a translation of the Slovak extract of the title deed or (ii.) a notarized statement of the Slovak notary that the data on the real estate that you have submitted to them correspond to the data on the real estate registered in the information system of the Slovak Chamber of Notaries.
In cases where there is no identification of immovable property in a national decision on inheritance from another EU Member State, we recommend applying for the ECS and at the same time for the identification of the immovable property in the ECS, together with the annexes necessary for the identification of the immovable property, which we list above. National decisions of foreign state authorities (i.e., if the heir is not in possession of an ECS) will generally be recognized by Slovak public authorities only if a special procedure for their recognition and enforcement is carried out.
- Problems with an inheritance title from some countries
The second practical problem arises in situations of cross-border succession, where there is a conflict between the law of the Slovak Republic and the law of States which are not parties to the Regulation (e.g., as in the case of Ireland and Denmark mentioned above). In such a case, (i.) there usually has to be a special procedure for recognition and enforcement of the decision (within the meaning of the Slovak Private International Law Act), (ii.) there are certain specificities arising from the national legislation (e.g., the rights of heirs can be exercised by persons other than the heirs, e.g., in Ireland it is the trustee of the estate) capable of generating practical problems in relation to local persons (e.g., complications when inheriting financial means deposited in a bank or securities held in trust). These factors may also significantly increase the time for the rightful heir to claim his\her property and increase the costs.
How can we help you?
We can provide you with comprehensive legal advice on obtaining property on the basis of a foreign succession title in the Slovak Republic, including foreign succession titles issued in Denmark or Ireland.
We can help you if you have a problem with the registration of the ownership right in the relevant land registry for an inherited property.
