The Regulation (EU) no. 650/2012 of the European Parliament and the Council of 4 July 2012 creates a uniform scope of legal application, judicial authority and proof of heir status for the EU member states with the exception of Denmark, Ireland and the united Kingdom:
Until now, different factors apply for the different member states, regarding which national succession law is applicable in the individual case.
According to German succession law, this is determined according to the nationality of the testator (Art 25 EGBGB). In many other countries, including in countries of the European Union, such as France or England, the national law of the last place of residence of the testator is to be applied, regardless of his or her nationality.
In addition, the respective national succession law applies in many countries for the fixed assets of the testator regarding the country, in which the estate is located. This means that for the respective estate, different succession law is to be applied to the remaining inheritance (fragmentation of the succession).
In succession cases of persons, who do not reside in their home country and/or have real estate property abroad, the legal consequences are not only complicated, but also arbitrary. Depending on which national court handles the succession case, a different national succession law will be applied. In the event of an inheritance of a German national with a last residence abroad and real estate in several different countries, German courts would apply German law based on the testator’s nationality, however foreign courts would apply the respective national law of the last residence and in the case of real estate, national law of the respective country would be applied accordingly.
This is changed by the EU Succession Regulation:
For all succession cases that occur after 17 August 2015, the general rule shall apply for the entire legal succession that the law of the member state is applied, in which the testator had his or her habitual residence at the time of death, Art. 21 para. 1 of the Regulation.
The Regulation offers the testator from a member state to choose the law of the state that her or she is a citizen of, Art. 22 of the Regulation.
The judicial authority is regulated accordingly. According to Art. 4 of the Regulation, the courts of the member state will be in charge for decision in succession cases for the entire inheritance, in which the testator resided at the time of his or her death. But even here, the testator has the option to choose the applicable law, according to a respective choice of forum agreement, Art. 5 of the Regulation.
With the Regulation, a European Certificate of Succession is introduced, Art. 62 of the Regulation. This approximately corresponds to the inheritance certificate according to German law. This succession certificate becomes effective in all member states, without the necessity of a special procedure, Art. 69 of the Regulation.
Due to the number of Europeans that do not live in their home country, but in another member state, and/or own real estate in another member state, the Regulation bears considerable practical importance.
It not only leads to legal unification and increased legal security, but it also provides the testator with the option to determine, which national law should be applicable for his or her legal succession, namely on the one hand by exercising choice of law according to Art. 22 of the Regulation, but also on the other hand through the choice of habitual residence, Art. 21 of the Regulation.
Since in the respective national law of the member states, the individual details of the legal succession are regulated in different ways (some national legal systems do not recognize a compulsory portion, others contain a stricter circle of persons authorized to a compulsory portion), the testator can use the choice of legal system or the choice of residence to steer compulsory legal regulations of succession.