The European Certificate Succession (ECS) was created by European Succession Regulation 650/2012.
What is the European Certificate of Succession?
The ECS is a document delivered by an internal authority, such as a Notary, outlining the key elements of a cross-border estate administration. It includes a breakdown of the beneficiaries’ shares, the attribution of assets, and the powers of executors and administrators.
One of the key concepts of the European Succession Regulation is that one law should apply to the entire estate administration, no matter where the assets are situated. This means that if French law applies to an inheritance including assets held in France and Italy, French inheritance laws would override the Italian inheritance laws, and the Italian assets would be administered in accordance with French law. In this scenario, the French authorities could deliver an ECS to communicate what has been established under French law, allowing the authorities in Italy to administer the Italian assets accordingly.
One intention of the ECS is to speed things up by creating a uniform template for providing the fine details of an inheritance, rather than having to navigate through the different formats found in national certificates from different jurisdictions. An original copy of the ECS will be kept by the authority which delivered it, and copies, which are valid for six months, will also be issued to the heirs, the executors of the Will, and to the administrators of the estate.
In which countries is it recognised?
The ECS will only be recognised in jurisdictions which have signed the European Succession Regulation. At the time of writing, all EU Member States are signatories, except for the UK, Ireland and Denmark. Each Member State has discretion to identify the internal authority responsible for delivering the ECS and, in most scenarios (notably in France, Spain and Italy), this will be the Notary. Once delivered, the ECS will be recognised in the other Member States and will automatically be evidence of a beneficiary’s rights to assets located in other Member States. However, the ECS is not an enforceable title in its own right and does not replace traditional domestic authentic instruments.
Should I/Can I obtain a European Certificate of Succession?
If you are a beneficiary or the Executor of an estate where the deceased was domiciled or habitually resident in the UK and had assets in another EU jurisdiction, such as France, you may be asked to provide the Notary in that jurisdiction with an ECS issued in the UK. Unfortunately, because the UK is not a party to the European Succession Regulation, it’s not possible to do this. However, there are acceptable alternatives, and the preferred option is a certificate of English law drafted and signed by a solicitor familiar with English law and/or cross border estate administration. We are able to prepare this document directly in the relevant target language for France, Spain or Italy.
For other cases where the deceased was domiciled or habitually resident in an EU country party to the Regulation and had assets in the UK, it’s unlikely that the ECS will be of great benefit. Again, this is because the UK is not a signatory to the Regulation and is not bound to recognise or enforce the ECS.
Similarly, where a cross-border estate administration involves two jurisdictions, it’s unlikely that the ECS will be beneficial. For example, if the deceased was habitually resident in France with assets in Spain and French law applies to the inheritance, it would be easiest to obtain the acte de notoriété (the closest equivalent in France to the Grant of Probate), translate it into Spanish and enforce it in Spain. The ECS is unlikely to be of use in this scenario because it will only communicate what is included in the acte de notoriété but in a different format. The general consensus currently is that Notaries prefer to use a document they have been using for years, rather than the ECS which is still new and not considered especially helpful by the relevant legal professionals.
Things change, however, when there are three or more jurisdictions involved in an estate administration. To illustrate, let’s use the same scenario as above, but this time the deceased also had assets in Italy. The French Notaire delivers an acte de notoriété, explaining the fine details of the inheritance under French law. One option would be to translate the acte de notoriété into Italian and Spanish and rely upon this document in front of the Italian and Spanish Notaries. Alternatively, an ECS obtained and delivered in the principal languages of the 25 countries which recognise and enforce it, thereby reducing translation costs, could prove to be a more cost-effective method.
A final consideration should be the purpose of obtaining the ECS. When approaching financial institutions, it’s possible that they will be wary of releasing funds from the deceased’s bank accounts based on an ECS. Instead, they may prefer to receive a more traditionally recognised internal document, despite the safeguards provided by the Regulation for individuals and organisations who rely on the contents of an ECS.
Conclusion
Whether the ECS will become a widely used document remains to be seen, largely due to its non-mandatory nature. The ECS provides some advantages over internal documents by removing differences in format from one national instrument to another, and also by reducing translation fees. Regardless of the origin of a practitioner, they will immediately be able to identify the relevant sections of the certificate and compare it with the version of their own language, leaving only the sections filled out manually to be translated. In any event, with the UK being a third-party to the Regulation and the ECS being unenforceable in the UK, it’s unlikely that this document will be of much benefit to cross border estates involving a UK domicile and/or UK assets. Nevertheless, decisions on whether to apply for an ECS should be made on a case-by-case basis.
