BY ANA FERNANDEZ TRESGUERRES

The forthcoming implementation of Regulation (EU) No. 650/2015 will require a substantial change in notarial practice. In fact, it has already changed as of today, in that it is necessary to bear in mind the possible professio iuris The testator must be adequately informed of this when making a will. The choice of law until 17 August 2015 shall be governed by Article 83 of the Regulation, as shall the possibility of making succession agreements and joint wills, in accordance with the provisions of this Article, which shall in themselves entail a choice of law, in contrast to what will happen after this date, when the more restrictive Article 22 shall apply.

With regard to deaths that have occurred since midnight on 17 August 2015, we notaries must change our practice. First of all, we must determine a possible cross-border element in any succession deed we authorise. The Regulation intentionally omits to specify when the succession is of this nature. In view of the omission, it must be considered that the cross-border nature is, in principle, determined by the existence of assets in different Member States or third countries, without prejudice to other cases or special rules. One will be the residence of the interested parties, Art. 28, which allows the Certificate of Succession (CSE) to be issued for that single act, if it refers to a Member State; or the existence of a special estate (Art. 30); or the appropriation of assets by the State (Art. 31) or the justification of the commorience (Art. 32). On the other hand, the determination of the habitual residence of a non-national in Spain, even if he only has assets in our country, requires the application of the Regulation. Article 9.8 of the Civil Code will only apply to internal inter-regional relations and mixed conflict between Spaniards.

If a non-Spanish resident opts for his national law by reason of professio iuris, the notary will have to prove the law applied. In both cases the issuing of the CSE will extend to the elements of the succession but if all his assets are in Spain it should not affect the internal procedures such as those required for access to the public registers (despite Art. 62.3).

Indeed, only EESs intended to have effect in Member States are issued. In principle, in a Member State other than the one in which it is issued. But once the EES has been produced, the issuing State must inevitably accept its effectiveness with the same effect and extension as in other States. Hence the clarification made. The CSE may be issued in relation to one element of the succession to several or all of them. The issuing of one on one element (such as acceptance of the inheritance or renunciation) does not prevent others being issued later on more elements. In contrast to the present situation, a succession with only one heir will require a public deed if the certificate is to be issued; in the same way, the notary can certify the existence and validity of a deceased person's inheritance deed, be it a declaration of heirship or a will, in the German manner. At the present point in time, the notarial probate proceedings will be more extensive, in that, in addition to the traditional ones, all declarations of heirs, except in favour of the authorities, inventories, the opening of special wills, as well as the appointment of devising accountants and, where applicable, the approval of the partitions made by them, will be added to the traditional ones. All these acts of voluntary jurisdiction are subject to special rules of jurisdiction, albeit more open than at present, based on different criteria. If the issuance of a certificate of inheritance for these acts is required, this competence for their issuance will have to be taken into account. But otherwise the system remains unchanged. Inheritance is not subject to jurisdiction, but to the free choice of notary, and therefore neither are the certificates, which are issued by the person who settles the inheritance. Except in special cases such as the addition of inheritance.

Therefore, as of 17 August next, the notary, when authorising a succession deed, must, as an initial element, establish the applicable law, whether or not the deceased is Spanish. In the absence of professio, the notary will establish a reasoned judgement on the habitual residence. This must be undisputed even if it has not been expressly stated. For example, there will be one if it was made before 2012 and complies with Spanish law (tercios, cautelas socinis, imputations). Hence, it is advisable that the choice of law is sacramentally stated, although its not being expressly stated does not exclude it, but will require analysis. A new will requires a new notarial record, because the validity of the previous will does not survive in this respect. Correct notarial practice will undoubtedly avoid many problems. It should also be borne in mind that copies of the CSE are temporary, so that their issue will always be special. Due to the complexity of the subject matter, a regulation with the status of a law will not be sufficient to adapt notarial practice, in the points mentioned above and in many more. A reform of the notarial regulations, including Annex II on the General Register of Last Wills and Testaments, will be indispensable.