In its response to the European Commission’s Green Paper “Succession and wills”, the CNUE calls for a Community regulation that determines the law applicable to a succession that leaves each party the free choice to apply this law providing there is a real link with the person. From a practical point of view, the establishment of a European certificate of inheritance and the enlargement of the European Network of Registers of Wills could smooth the way when settling cross-border successions in the future.
Representing a profession that plays a major role in settling successions, the Conference of the Notariats of the European Union (CNUE) wanted to respond to the Green Paper “Succession and wills” presented by the European Commission last spring.
Furthermore, its President, Paolo Piccoli, stated that “In a European context in which civil law notaries are increasingly confronted with successions which have a cross-border element, the CNUE can only hope for a Community instrument that clearly determines the law applicable to the succession of a person whose nationality is different from his/her habitual country of residence or who has property spread across several Member States”.
Above all, the CNUE considers that the law applicable to a person’s succession should be a personal decision. Just as one can select an heir in the provisions of a will, it would be logical for everyone to be able to decide, in the same type of deed, the law to which he/she would like to be bound. In order to avoid instances where the chosen law would only be selected with a view to prejudicing one or other of the presumptive heirs, such a choice should however be limited to the national law or to the law of the habitual residence, either when the decision is taken or upon death. Accordingly, a German citizen living in Brussels should have his/her choice limited to German or Belgian law.
Nonetheless, and in order to give a clear solution to anyone not having exercised such a choice, the CNUE favours a solution whereby the law applicable to a succession is that of the last habitual residence. People can often identify themselves more with the law of their habitual country of residence, rather than that of their nationality. Consider, for instance, second generation immigrants who keep their parents’ nationality but who have always lived in another country, or those who have married a citizen from another Member State and who live in their partner’s country.
The CNUE also supports the establishment of a European certificate of inheritance, which would make easier the steps to be taken by heirs in obtaining the transfer of property in the various countries it is located. Thus, heirs could obtain the existing money in an account in any EU Member State simply by presenting the certificate. The diversity of registers and immovable property transfer systems justifies in exchange that the transmission of immovable property requires a local authority’s intervention, if the law of the country where the property is located so requires.
Finally, and in order respect the deceased’s last wishes, it is important to be able to find the last will written by a deceased person easily and regardless of Member State. Aware of this, the CNUE has encouraged the European Network of Registers of Wills (RERT) since its launch. The network, based on the interconnection of national registers of last wills – and already operational between France and Belgium since 2002 –, will enable a Belgian civil law notary to find, for example, the will of one of his co-citizens who was living in Slovenia at the time of death and visa versa.