On the 4th July 2016, the implementation of the 2012 Regulation (EU) No 650/2012 dealing with EU Cross Border Successions took effect and these new rules are applicable to the succession of persons who die on or after 17th August, 2015. This new regulation serves to provide a number of advantages, mainly since it affords clarity and legal certainty on the succession of individuals by establishing which EU country will have jurisdiction to deal with the inheritance of an individual and which law will apply to that inheritance.
The general rule established under these new regulations is that the courts of the member state in which the deceased had his habitual residence at the time of death, is to have jurisdiction to rule on his inheritance and, will also apply the law of that EU member state. However having said that, a person may choose to apply the law of his nationality, whether it is an EU or non-EU country, to apply to his succession as a whole, and this regardless of the location of the estate and whether it is movable and immovable property. It is essential for the applicable law to be stipulated expressly in writing.
What is covered by the new EU legislation?
· The causes, time and place of the opening of succession
· The determination of beneficiaries of their respective shares and obligations, and other succession rights
· Capacity to inherit
· Disinheritance and disqualification by conduct
· The transfer of ownership to the heirs, the executors of the wills and other administrators of the estate
· Liability for the debts under succession
· The disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death as well as claims which persons close to the deceased many have against the estate/heirs
· Any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries
· The sharing out of the estate
What is not covered by the EU legislation?
· Who is to inherit and what share of the estate goes to the children and the spouse
· Property law and family law
· The inheritance taxes that the heirs will have to pay on the estate
· Matters concerning companies
To whom does the EU legislation apply to?
The EU rules on succession shall be applicable to all EU countries except for the United Kingdom, Ireland and Denmark and therefore citizens who reside in these three countries are not subject to the said rules. However, British, Irish and Danish citizens who reside in other EU countries may benefit from the new EU rules.
The European Certificate of Succession
This Regulation has enabled the introduction of the European Certificate of Succession which enables the heirs and the legatees and executors of wills and administrators of the estate to prove their rights and powers. Even though the European Certificate of Succession is not mandatory, once it is issued it will be granted recognition in all EU Member States.
HOW CAN WE HELP?
Our offices are able to advice clients on a number of issues such as succession rules, inheritance procedures and real estate planning. We can assist with planning and execution of public or private wills in Malta, on issues relating to testamentary trusts, and advice and litigation needed for attacking any wills or inheritances in Malta