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.
The European legislator has been quite active regarding the area of Succession Law within this past year: Effective as of August 17 2015 a new regulation (EU) Nr. 650/2012 will enter into force. It concerns 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. This regulation replaces some national provision and does not apply to Great Britain, Ireland and Denmark.
Regarding the question of which should be the applicable law, the new regulation gives us the following answer: The national law of the habitual residence shall be applied. Lacking a legal definition of the term „habitual residence“ it has to be determined by an over all view taking into account social, family-related and occupational factors. It differs from the former principle of citizenship which caused a higher level of legal certainty but sometimes was not “true to life”. The new principal introduces a higher level of flexibility at the expense of an increased uncertainty.
It is recommendable to take advantage of art. 22.1 which allows the testator to choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death. This would prevent unwanted legal disputes between heirs. On top of that, the testator will probably have a better understanding of his native legal system.
The regulation introduces a new European Certificate of Succession. This will surely help harmonizing European legal interactions. The European Certificate of Succession will be recognized by all participating member states. Thus it will be obsolete for a German heir to apply for a German Certificate of Succession and the corresponding apostille for an European-wide recognition. It can only be applied for in the context of cross-border matters and is valid for 6 months.
In addition to that, the European-wide recognition and enforcement of decisions has been facilitated. There is no requirement of a special procedure. Only when there is evidence or plausible suspicion of severe procedural or substantive violations, the recognition can be denied.
In conclusion, regulation (EU) Nr. 650/2012 aims to facilitate cross-border heritages. The future will decides whether this endeavor was successful. However, and due to the higher level of legal uncertainty resulting from the term “habitual residence”, it is wise to consult with an attorney to make sure that the inheritance will not lead to unwanted disputes and at the same time represents the testator's will.