The convenience of the new European Will
Until the entry into force of the Regulation 650/2012, the law ruling cross-border successions was the one contained in the article 9.8 of the Spanish Civil Code.
This article records a personal conception on succession rights, being applicable the national law of the deceased which, at some points like inheritance of real properties, entered into a positive conflict with the law of the State in which the real estate is located. According to this, an English national who owns a property in Spain and deceases in Spain would have his property applied the Spanish succession law, whilst the English succession law would be applied to the rest of his assets.
The Regulation 650/2012 substitutes the content of the article 9.8 CC on determination of the applicable law and settling positive conflicts of cross-border laws.
The aim of this Regulation is to avoid conflicts by simplifying and unifying criteria on the law applicable to the succession in every Member State of the European Union with the exception of Denmark, Ireland and United Kingdom.
The main improvement is the change of the criteria of the national law as the law applicable to the succession “ab-intestatum”, this is, in absence of a formal will of the deceased, by the law of the habitual residence of the deceased at the moment of the death. To be noted that fiscal and administrative matters would be expressly excluded from the scope of this Regulation.
With regards to the testate succession, the Regulation offers to the cross-border resident the possibility to choose the law of any other State -not necessarily Member of the EU- to rule his succession, as well as any of the connection points different from the general one -habitual residence-.
In addition, the testator may also choose the law applicable to the material validity and admissibility of his will. Thus, this English testator who lives in Spain can determine whether this succession will be executed according to Spanish Law but the validity of its content will be examined under the criteria of English Legislation. In absence of any specification on this point, the law ruling the whole succession would be applied.
The importance of the abovementioned specification arises specially when dealing with the legitimate inheritances: the part of the inheritance which the Spanish Law on Succession reserves to determined relatives of the deceased. One of the main advantages of the English Law on this issue is the freedom of will, something to which anyone would like to renounce! This is why is very important to determine on the will the criteria to determine the law ruling the succession and the law ruling its validity and admissibility: if the Nationality is chose as the connection point to determine the content and validity of the succession by an English citizen, he can freely dispose of his assets on his will without having to worry about the so called legitimate parts of the inheritance.
Thus, the Regulation offers to the testators the possibility of free disposal of their goods and properties by the enactment and registration of the new European Will, also promoting the formulation of inheritance contracts.
Also, the Regulation breaks barriers and obstacles to free circulation through the enactment of the European Certificate of Succession, with which numerous practical problems of cross-border movements will be avoided.
To sum up, the success of the European Commission on the creation of this new is to be recognised, as a strong and useful guarantee of juridical security and inheritance universality.
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