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 the acceptance and enforcement of authentic instruments in matters of succession and the creation of a European Certificate of Succession (“the Regulation”) introduced a new system for succession proceedings with an international element, which has since been put into practice and has become an everyday matter for the competent courts or court commissioners.   

The purpose of the Regulation was to simplify and streamline the handling of international successions within the European Union, thereby avoiding parallel proceedings in different countries, reducing disputes between heirs, and providing greater legal certainty.

The Regulation has introduced several important legal institutions which have substantially changed the previous practice of succession proceedings with a foreign element within the European Union. Under the Regulation, the courts of the Member State of the deceased’s habitual residence at the time of death will have jurisdiction over the entire succession. The law applicable to the succession as a whole shall be the law of the State of the deceased’s habitual residence at the time of death, unless it is clear from all the circumstances of the case that, at the time of death, the deceased had demonstrably closer ties with a State other than the State whose law would have been applicable by virtue of habitual residence, in which case, exceptionally, the law of that other State shall apply to the succession.

The Regulation expressly allows a choice of law and provides that a person may choose the law of the State of which he is a national at the time of the election or at the time of his death as the law applicable to the succession to all his property. A person who has the nationality of more than one State may choose the law of any one of the States of which he is a national at the time of the choice or at the time of his death.

The Regulation applies in its entirety from 17 August 2015 and therefore only to persons who die on or after 17 August 2015. Although it is a European Union Regulation, it does not apply to Denmark and Ireland.

In practice, however, there are still cases where the succession of a deceased EU national who died before 17 August 2015 needs to be dealt with. In such a case, the relevant applicable law in force, i.e. (i) bilateral treaties, (ii) multilateral treaties and (iii) the Private International and Procedural Law Act (“PIL”), must be followed and applied.

As an example, consider the case of a testator of German nationality who died in Germany in 2011 and during his lifetime owned property in both Germany and Slovakia. Let us assume that the succession proceedings in Germany were properly conducted and all the property located in Germany was settled in Germany. However, as there is no bilateral or multilateral treaty between the Slovak Republic and Germany, separate inheritance proceedings will have to be conducted for the property he left in the Slovak Republic, which will be governed by the provisions of the PIL.

Based on the foregoing, it is therefore assumed that in this case the procedure will be in accordance with Section 45 of the PIL, which regulates the jurisdiction of Slovak courts to deal with the property of a foreigner in the territory of the Slovak Republic.

In the case of immovable property, the Slovak courts have exclusive jurisdiction. This means that even if a German court decides on such property, this decision will have no legal effect in the territory of the Slovak Republic, and it will be necessary to conduct separate inheritance proceedings before a Slovak court in respect of Slovak immovable property.

In the case of movable property, the Slovak courts have jurisdiction only if (i) the state of which the testator is a citizen does not transfer the inheritance of Slovak citizens to the Slovak courts or does not give legal effect to their decisions, or if the foreign state refuses to deal with the inheritance or does not express an opinion, or (ii) the testator had his domicile or habitual residence in the Slovak Republic and the heir residing here so requests.

In other cases, the Slovak court will confine itself to taking the necessary measures to secure the foreigner’s property. This means that if a foreign court has jurisdiction over the property, the Slovak courts will only conduct a preliminary investigation and inform the foreign court of the results.

Regarding the question of applicable law, the provisions of the PIL should also be taken into account, namely the provisions of Article 17, which states that “the legal relations of the succession shall be governed by the law of the State of which the testator was a national at the time of death”. In this respect, it should be emphasised that the provision of Article 17 of the PIL constitutes a general conflict-of-law rule for all succession situations (i.e., inter alia, the issues of the capacity and incapacity of heirs, the extent of the inheritance, refusal of inheritance, etc.) which are not governed by a specific conflict-of-law rule.

If you have any further questions, please do not hesitate to contact us. We will be happy to assist you in resolving your legal issues.