The European Parliament and the Council of the European Union approved on July 4, 2012 Regulation 650/2012 on the applicable law on competition, applicable law, recognition and enforcement of resolutions, to the acceptance and execution of public documents in the field of succession mortis causa and the creation of a European certificate of succession, more commonly known as the European Succession Regulation.
There are many practical issues of inheritance law that are going to be modified as a result of it, many doubts that its application will raise, and I perceive that its existence is not having a special repercussion, except for certain highly specialized areas.
The Regulation will enter into force on August 17, 2015, except with regard to articles 77 and 78, which are applicable as of January 16, 2014, and articles 79, 80 and 81, which will be applicable to as of July 5, 2012, which regulate certain information measures between the Member States of the Union, with a view to putting the Regulation itself into operation.
Making an enormous task of synthesis, the fundamental idea that can be extracted in my opinion, is the one related to the law applicable to successions, which we will explain in a very graphic way:
Article 9.8 Civil Code.- The succession due to death will be governed by the national law of the deceased at the time of his death, whatever the nature of the assets and the country where they are located.
Inheritance Regulation Regime.-
Article 21.- General rule.- Unless otherwise provided in this Regulation, the law applicable to the entire succession will be that of the State in which the deceased had his habitual residence at the time of death.
Article 22.- Choice of Applicable Law. Any person may designate the law of the State whose nationality he possesses at the time of making the election or at the time of death.
Therefore, if until now the law applicable to the succession is something of an imperative nature, with the European Inheritance Regulation it will be dispositive, so that with certain limits we can choose it, which has enormous significance, as a consequence of the greater geographical mobility existing.
From my experience, when a person makes a will, the entire succession approach is carried out in accordance with the law of their nationality or in the case of Spain in accordance with their civil neighborhood. That is to say, part of the existing legitimate ones in accordance with that law, and based on the greater or lesser freedom to dispose that he enjoys, he grants his will, without thinking that the law that will end up governing his succession could be another.
Introducing freedom of choice of law and consequently the possibility that each one of us decides how we want our succession to be regulated is something, in my opinion, totally satisfactory.
After this brief introduction, I am going to where I wanted to go, which is the convenience of adapting the mortis causa provisions to the next entry into force of the European Inheritance Regulation, which has established a transitional regime, for acts of last will that can be granted before July 17, 2015, because according to its article 83.2 "when the deceased had chosen, before August 17, 2015, the law applicable to his succession, that choice will be valid if he meets the conditions established in Chapter III or if it meets the conditions of validity in application of the rules of private international law in force, at the time the choice was made, in the State in which the deceased had his habitual residence or in any of the States whose nationality he possessed.
In a high degree of probability, wills that are granted before July 17, 2015, will be effective after July 17, 2015. It is the job of legal operators to make the rules known and offer people the best instruments they have. to organize their succession between them, the choice of applicable law.