Cross-border inheritances

We deal with cross-border inheritances when there are elements from different countries in the inheritance case. The deceased did not have citizenship of the country in which he lived, property is abroad, etc.

At the beginning it should be determined when the death occurred on August 17, 2015 or later or before. This is an important date because at that time Regulation (EU) No 650/2012 of the European Parliament and of the Council entered into force on jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic documents regarding inheritance and on the establishment of a European Certificate of Succession. The date of the deceased's death (decree opening date) is decisive here.

Inheritances open from August 17, 2015.

provisions: Regulation (EU) No 650/2012 of the European Parliament and of the Council

competent court: the court of the habitual residence of the testator

applicable law: the law of the testator's habitual residence at the time of death

document confirming the rights to inheritance of the European Certificate of Succession

Inheritances opened before August 17, 2015

regulations: Polish law

competent court: Polish court (under certain conditions)

applicable law: the testator's national law

document confirming the rights to inheritance: decision on confirmation of inheritance acquisition

special cases for inheritances opened from August 17, 2015

The law indicated by Regulation (EU) No 650/2012 of the European Parliament and of the Council shall apply regardless of whether it is the law of a Member State. Unless otherwise provided for in the Regulation, the law applicable to all matters relating to succession is the law of the country where the deceased had his habitual residence at the time of death. Where, exceptionally, it is clear from all the circumstances of the case that, at the time of death, the deceased was clearly more closely connected to a country other than the country whose law would be applicable, the law applicable to inheritance is that of that other country.

Anyone can choose the law of the state whose nationality he holds at the time of the choice or at the time of death as the law governing all matters relating to his succession. Anyone who has more than one citizenship may choose the law of any country whose citizenship he holds at the time of his choice or at the time of death. The choice of law must be made expressly in a declaration in the form of a disposition of property upon death or must result from the provisions of such a disposition. The material validity of the act by which the choice of law was made is subject to the chosen law. Any change or cancellation of the choice of law must comply with the form requirements laid down for the change or cancellation of a disposition of property upon death.

In principle, the courts of the Member State in which the deceased had their habitual residence at the time of death have jurisdiction to rule on all matters relating to succession. In some cases it is possible to conclude a propagatory agreement (agreements on the choice of courts of a given Member State)

Where the habitual residence of the deceased at the time of his death is not in a Member State, the courts of the Member State in which the inheritance assets are located, nevertheless have jurisdiction to rule on all matters relating to the estate, if:

• (a) the deceased had the nationality of that Member State at the time of his death, or failing that;
• (b) the deceased had his habitual residence in that Member State, provided that no more than five years have elapsed from the time the court was brought before the change of habitual residence.

Where no court in a Member State has jurisdiction, the courts of the Member State in which the inheritance assets are located, nevertheless they have jurisdiction to rule on matters relating to those assets.

Where no court of a Member State has jurisdiction under other provisions of the Regulation, the courts of a Member State may, by way of exception, rule in succession if the proceedings cannot be properly initiated or carried out or would not be possible in a third country, with which the matter is closely related.

The case must have a sufficient connection with the Member State of the court seised.

special cases for inheritances opened before August 17, 2015

The testator in a will or other disposition in the event of death may submit the succession to his law of his native country, the law of his place of residence or the law of his habitual residence at the time of this act or at the time of his death. In the absence of a choice of law in the succession case, the testator's national law at the time of his death applies. The validity of a will and other ordinances in the event of death is determined by the testator's national law at the time of these activities. The Convention on the conflict of laws regarding the form of testamentary ordinances, disputes, also applies Judged in The Hague on October 5, 1961 (Journal of Laws of 1969, No. 34, item 284).

National jurisdiction includes inheritance cases, if the testator at the time of death was a Polish citizen or had a place of residence or habitual residence in the Republic of Poland. National jurisdiction also includes inheritance cases if the inheritance property or a substantial part thereof is in the Republic of Poland.

Where the habitual residence of the deceased at the time of his death is not in a Member State, the courts of the Member State in which the inheritance assets are located, nevertheless have jurisdiction to rule on all matters relating to the estate, if:

• (a) the deceased had the nationality of that Member State at the time of his death, or failing that;
• (b) the deceased had his habitual residence in that Member State, provided that no more than five years have elapsed from the time the court was brought before the change of habitual residence.

Where no court in a Member State has jurisdiction based on the above principles, the courts of the Member State in which the assets of the inheritance are located, nevertheless have jurisdiction to adjudicate in matters relating to those assets.

EUROPEAN FALL DECLARATION

Regulation (EU) No 650/2012 of the European Parliament and of the Council establishes a European Certificate of Succession (hereinafter referred to as' the Certificate '), which is issued for use in another Member State.' The use of a credential is not mandatory. The attestation does not replace internal documents used for similar purposes in the Member States. However, the certificate issued for use in another Member State shall also have effects in the Member State whose authorities issued it in accordance with this Chapter.

The certification is intended for use by heirs, legatees with direct succession rights and executors of wills or estate administrators who need to prove their status in another Member State or exercise their rights as heirs or legatees, or their powers as executors or administrators of inheritance.

The certificate may in particular be used to demonstrate one or more of the following:

• (a) the status or rights of each heir or, as the case may be, of each legatee named in the certificate and their shares in the estate;
• (b) to grant the heir (s) or, as the case may be, the heir (s) named in the certificate of the specific asset or assets forming part of the estate;
• (c) the rights of the person named in the certificate to execute the will or to administer the estate.

The authority to issue a certificate is usually the court with jurisdiction in succession matters or another body authorized to do so

The application for a certificate shall be submitted on an official form

The attestation has its effects in all Member States without requiring any particular procedure. It is presumed that the certificate correctly states the circumstances that have been established under the law applicable to the succession or other applicable law as regards the matter in question. It is presumed that the person mentioned in the certificate as the heir, legatee, executor of the will or administrator of the estate has the status mentioned in the certificate or has the rights or powers specified in the certificate without any conditions or restrictions regarding these rights or powers other than those specified in the certificate. It is presumed that any person who, acting on the basis of information certified in the certificate, makes a payment or who transfers items to the person indicated in the certificate as the person authorized to accept payments or items, has performed legal action with the person authorized to accept the payment or items, unless the person she knows that the content of the certificate is incorrect or is not aware of this irregularity due to gross negligence. In the event that the person mentioned in the certificate as the person authorized to dispose of the estate inherits the ordinance for the benefit of another person, it is presumed that this other person, if acting on the basis of the information certified in the certificate, has performed legal action with the person authorized to dispose of the property in question, unless that the person knows that the content of the certificate is incorrect or is not aware of this irregularity due to gross negligence. The certificate is a valid document for the purposes of entering inheritance property in the competent registry of a Member State.