Certificate of Inheritance
The non-technical term ‘certificate of inheritance’ describes the document that enables an heir conclusively to prove his right to dispose of the estate’s assets particularly vis-à-vis banks, the land registry, as well as commercial creditors and debtors of the decedent.
While the legal systems of the Romanistic legal family, in the interest of the true heir, were traditionally sceptical towards formalized certificates of inheritance—particularly allowing bona fide acquisition of rights—and are sometimes still sceptical today (Italy), other European jurisdictions have introduced—for quite different historical reasons—certificates of inheritance in the interest of facilitating legal transactions.
There are judicial, notarial and private procedures for obtaining a certificate of inheritance. The effects of these certificates vary widely. Sometimes they have the full effect of res judicata, sometimes they merely afford protection for bona fide acquirers or constitute rebuttable presumptions of inheritance. But certificates of inheritance can also merely be statements of facts, which can trigger damage claims if they are erroneous (damages), or documentations of facts without any guarantee of correctness, even though they are nevertheless relied upon in practice. The specific nature of certificates of inheritance is often linked to the system of the accrual of the estate which exits in the particular country (devolution of the inheritance/universal succession, inheritance, acceptance and disclaimer) as well as the land registry system. Many jurisdictions, however, provide different types of certificates of inheritance. In addition, all countries allow for court proceedings to resolve disputed cases; they will not be further considered here.
Due to the lack of a unified international law of succession (succession law (international)), certificates of inheritance primarily have a national significance. Their recognition on a European level has not been secured.
2. Comparative law
a) Judicial certificates of inheritance
In Austria, the estate first remains vacant (hereditas iacens) and passes to the heirs only upon devolution (Einantwortung; inheritance, acceptance and disclaimer). The devolution order of the court (Einantwortungsurkunde) possesses the force of res judicata and at the same time legitimates the heirs.
In England, the passing of the estate to the heir’s personal representative is attested by the courts in the grant of probate if the decedent has named that representative in a will (executor). If the representative was appointed by the court (administrator), the passing of the estate takes place with the granting of the letter of administration. The grant is issued either in a non-contentious procedure (in common form) or in contested court proceedings (in solemn form). In the latter case it has the effect of res judicata. The grant therefore constitutes a certificate of inheritance. Due to the interposition of the personal representative, the beneficiary is not a universal successor and thus not listed as such in any certificate of inheritance.
In the Italian South Tyrol there are, based on Austrian roots, court-issued certificates of inheritance according to Italian law which—without Einantwortung—legitimize the heir (and a legatee, as far as he has a right in rem against the heir), particularly vis-à-vis the land register. The certificate creates a presumption of inheritance and provides (restricted) protection for bona fide acquirers.
In Germany and Greece, the probate court, upon application and other official investigation, issues a certificate of inheritance stating the heirs, their shares in the inheritance and the existence or absence of restrictions on the heirs (succession, subsequent, wills). The applicant must submit a statement of facts, including an affidavit. For executors, a separate executor certificate may be issued. The correctness of certificates of inheritance and executor certificates is rebuttably presumed, ie the certificates do not have the effect of res judicata. The certificate of inheritance provides so-called ‘public faith’, ie a third party relying on the certificate in good faith will be protected. Similarly, in Poland there is a judicial confirmation of the transfer of the estate and, for uncontested cases, a notarial certificate of inheritance which has been introduced recently.
Alternatively, a notarial will along with the record of probate proceedings is sufficient in Germany for registry purposes, such as land registries, if the position of heir clearly appears from the will. However, these documents enjoy no ‘public faith’. For very small estates and among private persons, a holograph will opened by the probate court is also often accepted as a certificate of inheritance, although it provides no guarantee of correctness.
In Alsace-Lorraine, there is—based on German roots—a judicial certificate of inheritance (certificat d’héritier) under French law which provides a rebuttable presumption of inheritance and public faith. It is accepted all over France and replaces the otherwise necessary certificate of notoriety and ownership (acte de notoriété) which, in turn, is also recognized in Alsace-Lorraine.
b) Notarial certificates of inheritance with bona fide rights protection
In the other parts of France and in the Netherlands, the heir (as well as the universal legatee (légataire universel) and the legatee of a share in the inheritance (légataire a titre universel)) may on request obtain a notarial certificate concerning his status (acte de notoriété, verklaring van erfrecht). The certificate provides bona fide rights protection. Today in France, it also proves the status as heir until proven otherwise. Full documentation has to be provided to the notary or obtained by him. In case of succession disputes, an action to establish a claim to an inheritance can be brought before the courts.
In Spain, in cases of testamentary succession the heir can prove his status as heir by an escritura pública de aceptación y adjudicación de herencia, which is drawn up, upon application, by a notary. In cases of intestate succession, the spouse, descendants or ancestors, can obtain from the notary an acta de notoriedad as certificate of inheritance with the assistance of two witnesses. Only in cases of intestate succession of more distant relatives are judicial proceedings necessary, the result of which is the issuance of a declaración de herederos ab intestato.
c) Private documents
In Sweden and Finland, the status as heir is proven by an estate inventory, which fully describes the entire situation of the estate. It is drawn up by all concerned parties, with the assistance of two reliable persons, and is to be affirmed upon their honour and to the best of their belief. It has to be submitted to the tax authorities as basis for determining the inheritance tax (inheritance, acceptance and disclaimer). The inventory provides good faith protection and is in principle sufficient to prove the status as heir.
d) Special case of Italy
Under general Italian law there is no certificate of inheritance; the requirements to prove the status as heir depend on the particular case. In practice, the status as heir is primarily proven by the presentation of the document containing the declaration of the acceptance of the inheritance. For changes of registration of real property, the status as heir has to be proven by submission of all documents relevant to the succession (Arts 2648, 2660–2662 Codice civile). Apart from that, the presentation of a notice of accrual of inheritance (dichiarazione di successione) plays a certain role in practice; this document, drawn up by the Agenzia delle Entrate, is required by all notaries and other officials for any recording or notarization of the sale of items of property from the estate. An affidavit by two witnesses in front of a notary (atto di notorietà) on the succession is also sometimes accepted as certificate of inheritance. There are ongoing discussions to introduce a notarial certificate of inheritance.
e) National trends
In the legal systems of the Romanistic family which, in the interests of the heir, were traditionally sceptical towards formalized certificates of inheritance with bona fide rights protection, a change of attitude can be found in recent years. The advantages of such a certificate of inheritance for the facilitation of legal transactions have been recognized, and the relevant statutory provisions have already been amended in France, the Netherlands and Spain.
3. European unification project: Rome IV
For a number of reasons, the cross-border recognition of the different national certificates of inheritance has not so far been attained in Europe. First, the international law of succession (succession law (international)) has not yet been unified, and thus there is no conformity of decisions in the different jurisdictions on the question of succession. This is also the main reason why the Hague Convention of 1973 concerning the International Administration of the Estates of Deceased Persons, which provides an international certificate for administrators of the estate, such as an executor, has had little success so far. Secondly, the reliability of certificates of inheritance is often considered to be insufficient due to the very different requirements for their issuance. Finally, problems of application result from the very different doctrinal structures and concepts in the different laws of succession as well as from the demarcation of the law of succession, especially vis-à-vis the law of probate procedure, matrimonial property law, property law and corporate law. Therefore, legal practice has long advocated the creation of a European certificate of inheritance, or a mechanism allowing for cross-border recognition of national certificates of inheritance.
More recently, the international law of succession was included in the Vienna Action Plan of 1998. As a first step, the German Notarial Institute, on behalf of the Commission and in cooperation with Heinrich Dörner and Paul Lagarde, presented in 2002 a detailed comparative law study on the international law of succession and probate proceedings with proposals for their harmonization and the creation of a European certificate of inheritance. Based on this study, the Commission issued a green paper on succession and wills on 1 March 2005 (COM (2005) 65 final) in which, inter alia, questions are posed regarding a European certificate of inheritance. The responses received predominantly welcome the idea of a European certificate of inheritance, including in particular the European Parliament’s resolution of 16 November 2006 with recommendations to the Commission on succession and wills (A6-0359/2006 final). In 2009 the Commission presented a first draft of a ‘Rome IV’ Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM(2009) 154 final) (succession law (international)) for discussion.
Felix Odersky, Die Abwicklung deutsch-englischer Erbfälle (2001); Deutsches Notarinstitut (ed), Internationales Erbrecht in der EU: Perspektiven einer Harmonisierung (2004) (containing the study of the German Notarial Institute, Dörner and Lagarde); Markus Stögner and Alice Perscha, Verlassenschaftsverfahren in Österreich (2005) Notarius International 113; Alfonso Renteria (ed), Manuel de Droit Privé et de Justice Préventive en Europe (2007); Rembert Süß (ed), Erbrecht in Europa (2nd ed 2008); Anatol Dutta, ‘Succession and Wills in the Conflict of Laws on the Eve of Europeanisation’ (2009) 73 RabelsZ 547; Max Planck Institute for Comparative and International Private Law (ed), ‘Comments on the European Commission’s Proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic intruments in matters of succession and the creation of a European Certificate of Succession’ (2010) 74 RabelsZ 522; Richard Crône, ‘Le certificate successsoral européen’ in Georges Khairallah and Mariel Revillard (eds), Perspectives du Droit des Successions Européennes et Internationales (2010) 155; Andreas Fötschl, ‘The Relationship of the European Certificate of Succession to National Certificate’ (2010) ERPL 1259.