ERA Forum (2014) 15:393407

DOI 10.1007/s12027-014-0355-y
A RT I C L E

European Certificate of Successioncontent, issue

and effects
Christian Hertel

Published online: 12 September 2014

ERA 2014

Abstract One of the most important features of the EU Succession Regulation

(No 650/2012) is the creation of a European Certificate of Succession. The Certificate will be issued by the courts or other authorities of the Member State in which
the deceased had the last habitual residence. The Certificate will serve as proof of
the status as an heir, legatee or administrator of the estate in all Member States. The
good faith in the content of the Certificate is protected. Only for the registration in
the national land register (or for other registered assets), the national rules on registration or land law may still require additional documents (or contracts) besides the
European Certificate of Succession. The European Certificate of Succession does not
abolish national certificates; they may still be used alternatively.
Keywords European Certificate of Succession Good faith Habitual residence
Land register Succession regulation
1 The creation of a European Certificate of Succession
The European Certificate of Succession features very prominently in the new Succession Regulation. 1 It has even been mentioned expressly in the title of the Regulation.

1 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on ju-

risdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of
authentic instruments in matters of succession and on the creation of a European Certificate of Succession,
[2012] OJ L 201 27.7.2012, p. 107.
This article is based on a presentation given at the conference Planning cross-border succession,
organised by ERA on 2021 March 2014 in Trier.

C. Hertel ( )
Civil law notary, Weilheim, Germany
e-mail: notar@notar-hertel.de

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A whole chapter of the Regulation (articles 62 to 73) has been dedicated exclusively
to the Certificate. Thus, the European Certificate of Succession might be called a third
pillar of the Succession Regulationbesides the rules on the applicable law and on
jurisdiction, recognition and enforcement.
1.1 Steps toward a European Certificate of Succession
A predecessor to the European Certificate is regulated in the Hague Convention of
2 October 1973 Concerning the International Administration of the Estates of Deceased Persons which, however, is applicable only to the Czech Republic, Portugal
and Slovakia.
The idea of a European Certificate of Succession was first brought to the attention
of the European legislator by the study on international successions in the European
Union, undertaken by DNotI (the German Notarial Institute) on behalf of the Directorate General for Justice and Internal Affairs in the year 2002.2 From its experience,3
DNotI knew about the great differences in the national systems on how to prove the
status as an heir and of the practical difficulties arising from these differences. Thus,
while working on the study, the now deceased Dr. Wolfgang Riering, then head of
the DNotI-department of international private law, had come up with the idea to simplify international successions by a European Certificate of Inheritance. His idea
had been taken up immediately by the other members of the DNotI-working group of
the study, Prof. Paul Lagarde, Paris, Prof. Heinrich Drner, Mnster, and me, at that
time director of DNotI.
The European Council adopted the idea of a European Certificate of Succession in
its Hague Programme on judicial cooperation of 4 and 5 November 2004.4 There,
the Council not only mentioned the need to adopt an instrument in matters of succession, but also specified that the instrument should include a European Certificate of
Succession.
Now, in the Succession Regulation, recital 67 states the objectives of the Certificate of Succession:
In order for a succession with cross-border implications within the Union to
be settled speedily, smoothly and efficiently, the heirs, legatees, executors of the
will or administrators of the estate should be able to demonstrate easily their
status and/or rights and powers in another Member State, for instance in a
Member State in which succession property is located. To enable them to do
2 DNotI (Deutsches Notarinstitut/Institut Notarial Allemand/German Notarial Institute), tude de droit

compar sur les rgles de conflits de juridictions et de conflits de lois relatives aux testaments et successions dans les Etats membres de lUnion Europennetude pour la Commission des Communauts
Europennes Direction gnrale Justice et Affaires intrieures, Rapport FinalSynthse et Conclusions,
18 septembre/8 novembre 2002, internet: http://ec.europa.eu/justice/civil/document/index_en.htm. In the
study, we called it a European Certificate of Inheritance or a European Certificate of Executor respectively.
3 Each year, DNotI gives about 2.000 legal expertises on foreign private law, almost half of them on suc-

cession law.
4 The Hague Programme: strengthening freedom, security and justice in the European Union, OJ C 53,

3.3.2005, p. 1.

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so, this Regulation should provide for the creation of a uniform certificate, the
European Certificate of Succession (hereinafter referred to as the Certificate),
to be issued for use in another Member State.
1.2 Problems arising from the differences in the present proof of succession under
national laws
The need for a harmonised proof of succession may be seen very clearly if we look
how presently the national systems for proving the beneficiaries of an estate vary
greatly. One may distinguish at least five different systems:5
(1) The most commonly used system is the acte de notorit (act of notoriety) in the
legal systems based on the Code Napoleon. Some type of act of notoriety is used
in 8 EU Member States with together 45.7 % of the total EU population (namely
Belgium, France, Italy, Luxembourg, the Netherlands, Portugal, Romania and
Spain).
(2) A certificate of succession with the effects of presumption of correctness and
protection of good faithsimilar to the one now being introduced by the European Certificate of Successionis being used in 7 Member States with together
28.4 % of the total EU population (Estonia, Germany, Greece, Latvia, Lithuania,
Polandsimilar in Bulgaria).
(3) The Common Law probate procedure is being used in 3 Member States with
together 13.7 % of the total EU population (Cyprus, the Republic of Ireland and
the United Kingdom).
(4) The Austrian-Hungarian system of Verlassenschaftsverfahren (estate procedure)
is being used in 6 Member States with together 8.0 % of the total EU population
(Austria, Croatia, the Czech Republic, Hungary, Slovakia, Slovenia).
(5) The 3 Nordic Member states with together 4.1 % of the total EU population
use the inventory made for the inheritance tax declaration also for proving the
position as a beneficiary to the estate.
(6) Finally Malta (0.1 % of the total EU population) does not have any formal system
of proving the position of an heir.
1.2.1 Certificate of succession
The European Certificate of Succession is modelled on the certificate of succession
as it is being used in various central European statesfrom Germany over Poland to
the Baltic States, also in Greece. The certificate is issued by a public authority after
examination of the succession. The main features of this system are the presumption
that the content of the certificate is correct and the protection of good faith.6 The
issuing authority may be a court (as in Germany, Greece, Latvia and Poland) or a
civil law notary (as in Estonia and Lithuania). In Bulgaria, which has a somewhat
similar system, the certificate is issued by the local municipality.
5 Hertel [4].
6 Protection of good faith see e.g. art. 2365, 2366 German Civil Code, art. 1962, 1963 Greek Civil Code,

art. 10251029 Polish Civil Code.

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1.2.2 Acte de notorit

Traditionally, the acte de notorit (act of notoriety), as it has been developed in
the legal systems of the Code Napoleon, was a declaration of two persons who are
knowledgeable in the respective succession and to whose statements one might trust.
Their declaration was authenticated by a civil law notary. However, the notary did not
have to do any research on the succession by his own. Traditionally, good faith in the
acte de notorit was not protected or at least only partially protected.7
Within the last years, this traditional form has evolved in the direction of a certificate of succession. Firstly, in most systems, the notary now has some obligations
to check whether the facts presented to him are correct. Secondly, at least in France8
and in the Netherlands,9 by recent changes in the statute now the good faith in the
acte de notorit is protected. Of course, both reforms (strengthening the control and
strengthening the effects) are linked to each other.
1.2.3 Probate procedure
In the Common Law system, the court does not state in any certificate (nor in any
other form) who the beneficiaries are or what their respective share in the estate is.
Rather, the court confirms the executor whom the testator had designated; this is the
so called grant of probate of a will.
Or, if the deceased did not designate any executor, the court appoints an administrator who then distributes the estate among the beneficiaries; this is called a letter of
administration.10
1.2.4 Austrian-Hungarian estate procedure (Verlassenschaftsverfahren)
Under the Austrian-Hungarian estate procedure, in German called Verlassenschaftsverfahren, a court commissioner (generally a civil law notary) first ascertains the heirs
and legatees and then normally distributes the estate among them. The procedure
is closed by a court decision on the transfer of the various assets of the estate to
the respective beneficiaries (Einantwortungsbeschluss) (respectively in Hungary by
a decision of the notary).11 However, the procedure serves only for the distribution,
not for the administration of the estate. Generally, the heirs themselves administer the
estate even during the estate procedure.
7 In Belgium and Italy (art. 534, 1153 ss. Civil Code), good faith is protected, it the heir apparent (apparent

heir) acted.
8 France: Art. 730-4 Civil Code, in force since 1.7.2002.
9 Netherlands: Art. 4:187(1) Civil Code, in force since 1.1.2003.
10 England: The Non-Contentious Probate Rules 1987.
11 Austria art. 149 ss. Law on Non-Contentious Jurisdiction (Auerstreitgesetz); Czech Republic art. 175q

Civil Procedure Code; Hungary art. 57 ss. Regulation on the Estate Procedure; Slovakia art. 175q Civil
Procedure Code; Slovenia art. 214 Succession Law.

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1.2.5 Inheritance tax inventory

In the Nordic Member states, the person who has possession of the assets of the estate, is obliged to file an inventory of the estate to the tax authorities. In this inventory,
the possessor has also to state how the assets are being distributed among the beneficiaries. After the tax authorities (in Finland and Sweden) or respectively a court (in
Denmark) have approved this inventory, it may also be used to prove the position as a
beneficiary to the estate. Even good faith in the content of the inventory is protected
after its approval.12
1.2.6 No formalised proof at all
In Malta, there is no formalised system for proving the position of an heir. Instead,
normally one searches both testamentary registers which exist on Malta. If no will
has been recorded in either register, one presumes that no will has been made and
that statutory succession applies.13 If nonetheless there was a will, it is bad luck for
the party contracting with the presumed heir.
1.3 The European Certificates new approach to circulation
So even if it is not completely clear whether the Certificate falls under the European
Unions competence to regulate international private law, everybody agreed that it
was a good idea to introduce a European Certificate of Succession.14
1.3.1 Uniform European Certificate
With the European Certificate of Succession, the Succession Regulation applies a different approach to the circulation within the European Union. Previous regulations
such as the two Brussels Regulations or at the Regulation on the European Enforcement Order15 all regulate the circulation of national decisions or other enforceable
titles in the other Member States. There, the national titles are elevated for the circulation and execution abroad as a European title. Under the Succession Regulation,
it is not the national certificates of succession which circulate, but a newly created
truly European Certificate. The European Certificate is issued independently of any
national certificate; it is not an extension or Europeanisation of some national certificate.
12 Finland: Succession Law, chapter 20 art. 20(9); Sweden: Succession Law, chapter 18, art. 18:4. In Den-

mark, good faith is not directly regulated in the Law on the estate procedure, no. 383 of 22.5.1996. However, it is recognized by the courts (see Thorbek/Steininger [14]).
13 Pisani [9].
14 In the literature, the European Unions competence to regulate on the European Certificate of Succes-

sion has been acknowledged by Baldus [1]; Lange [7], 169; Roth [11], 318 s.; the competence has been
questioned by: Heggen [2], 14; Kunz [5], 257; Lehmann [8], 207; Rechberger [10], 15 s.; S [13], 730.
15 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating

a European Enforcement Order for uncontested claims, [2004] OJ L 143/15.

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1.3.2 No circulation of national certificates

Under the Succession Regulation, the cross border proof of succession is regulated
exclusively in the rules on the European Certificate of Succession. These special rules
exclude the application of the regulations general rules on recognition and enforcement to national certificates of succession. Given the great differences in the national certificates, the European legislator has simply ordered the recognition and
enforcement of national certificates, but instead has created the European Certificate
of Succession as a new way of circulating one Member States instrument in the other
Member States.16

2 Competence to issue the Certificate

2.1 Competence to issue the European Certificate of Succession
The international competence to issue a European Certificate of Succession follows
the same rules which apply generally for the international competence under the Succession Regulation. Article 64 phrase 1 refers to articles 4, 7, 10 and 11. Thus, generally the authorities of the Member State in which the deceased had the habitual
residence17 at the time of death have jurisdiction also for issuing the European Certificate of Inheritance (art. 64 and 4).
As an exception, if the deceased had chosen the law of another Member State
(which was not the last habitual residence), the courts of this Member State have
jurisdiction under article 7, in particular if the authorities of the Member State in
which the deceased had the last habitual residence have declined jurisdiction under
art. 6.
Also the subsidiary competence under article 10 applies (location of the assets),
where the habitual residence of the deceased was not located in a Member State.
Finally in exceptional cases, the forum necessitates under article 11 may apply, in
particular if otherwise it would be impossible to get a Certificate.
The Member States designate the competent authority. According to article 64
phrase 2 the authority has to be either a court as defined in article 3(2) or another authority which, under national law, has competence to deal with matters of succession.
The Member States communicate the competent authority to the Commission up to
November 2014 (art. 78(1)). Probably, most Member States will designate the same
authorities which are also competent to issue the national certificates of succession.
Article 64 does not refer to articles 5 or 9. For the Certificate, jurisdiction cannot
be based on a choice of court agreement (art. 5), because the effects of the certificate
16 If the national certificate is an authentic act, it falls under art. 59 on the acceptance of foreign authentic

acts. However, this means only that the authorities of the other Member State have to accept the fact that the
issuing Member State has issued the certificate. Art. 59 does not extend the effects of the certificatesuch
as the proof or good faithto the receiving Member State.
17 For the definition of the habitual residence see recitals 23 and 24; also Solomon [12].

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apply not only to the parties of the procedure, but to everybody. So, if a choice of
court agreement would have been permitted for the Certificate, some parties could
have prejudiced other parties. For the same reason, the appearance of an interested
person (art. 9) cannot prejudice the forum to the detriment of other persons.
2.2 Is it still possible to issue national certificates?
The rules on the European Certificate of Succession might raise the question
whether, in a cross border situation, it is still possible to issue a national certificate of succession. E.g. if the deceased had the last habitual residence in the Member State A, but leaves property in the Member State B, may the heirs apply to
the authorities of Member State B for obtaining a national certificate of succession?
At first sight, one might deny the international competence of Member State B
arguing that the rules of the Regulation on the international competence apply also to
national certificatesand that jurisdiction under the Succession Regulation is exclusive. Also one might argue that the Succession Regulation deliberately focuses the
competence to the Member State of the last habitual residence in order to prevent
conflicting decisions in various Member States.
However, article 62(2) of the Regulation expressly states: The Certificate shall not
take the place of internal documents used for similar purposes in the Member States
(see also recital 67). The Regulation gives the parties the option to choose between
the national certificates and the European Certificate. Also, as article 64 expressly
regulates that the rules of articles 4 ss. on the international competence apply also for
the European Certificate of Succession, it implies that articles 4 ss. do not regulate
the competence the issue a (national) certificate of succession. Otherwise, article 64
phrase 1 would be redundant.
Thus, the Member States may still issue national certificates of succession irrespective of whether or not they are competent under articles 4 ss. Succession Regulation.18

3 Procedure
3.1 Application
An application may be made by an heir, a legatee, the executor of the will or
the administrator of the estate (art. 65(1), 63(1)). Legatees may apply only insofar as they have direct rights in the successionmeaning that only those legatees may apply who, under the law applicable to the succession, became owner of
the bequeathed property by operation of lawbut not those legatees who merely
got an obligatory claim against the heir. A creditor cannot apply for a Certificate.19
18 Lange [6], no. 51 ss.
19 Lange [6], no. 7.

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The form established under the Regulation may be used for the application, but its
use is not required (art. 65(2)).20
The information required to be given by the applicant relates mostly to the content
of the Certificate (art. 65(3)). The long lists includes (a) details concerning the deceased, (b) details concerning the applicant (c) and, if applicable, his representative,
(d) details of the spouse of the deceased, (e) details of other possible beneficiaries,
(f) the intended purpose of the Certificate, (g) the contact details of the court dealing
with the succession, (h) the elements on which the applicant founds his claimed right
to the succession, (i) an indication of dispositions mortis causa made by the deceased,
(j) an indication of a marriage contract of the deceased, (k) an indication of whether
the beneficiaries have accepted or waived their rights to the succession, (l) a declaration as to whether there is any dispute pending relating to the succession and (m)
any other information which the applicant deems useful for the purposes of the issue
of the Certificate.
3.2 Procedure
In order to ensure a minimum standard, but not to overly regulate national procedures, the Regulation regulates only some basic features of the procedure. Otherwise,
the details of the procedure for issuing a European Certificate of Succession will be
regulated by national law. Here, the Succession Regulation resembles rather the style
of a Directive than of a Regulation. Also, the minimum standards are formulated
rather softly, stating that the issuing authority may carry out specific measures, not
that the authority should, if possible, do this or that. Thus, regrettably, it is basically
up to the Member States themselves to ensure a certain minimum standard (which
each Member State should do in its own interest since the Certificate may be used in
the issuing Member State as well).
During the examination of the application, the issuing authority has to verify the
information given by the applicanteither by carrying out its own enquiries or by
asking the applicant for further information (art. 66(1)). Documents which are relevant to prove the application should, if possible, satisfy the conditions necessary
to establish their authenticity. However, the issuing authority, in its due discretion,
may also accept other forms of evidence (art. 66(2)). If possible, the issuing authority
may require that declarations be made on oath or by a statutory declaration in lieu
of an oath (art. 66(3)).
The issuing authority shall take all necessary steps to inform all beneficiaries of
the application and hear them and any other persons involved (art. 66(4))in order
to ensure a fair hearing.
Article 66(5) obliges the authorities of other Member States to provide the issuing authority with the same documents and information (concerning in particular
civil status registers or property registers) which, under national law, they would also
provide to an issuing authority in their national state. For the circulation of these
documents, if issued in the context of the Succession Regulation, no legalisation or
20 The forms under the Regulation have not yet been published.

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apostille shall be required (art. 74). Thus, within its scope of application for successions, article 74 already anticipates the future rules of the proposed Regulation on
Public Documents.21
3.3 Issue
The European Certificate of Succession is meant only for the use in for cross border
situations. So it must not be issued if the succession does not have any international
element. However, once issued for use in another Member State, the Certificate shall
also produce the effects in the Member State of origin (art. 62(3)). Otherwise, the
applicant would have to go through the national procedure as well. Thus, the rule of
article 62(3) makes perfect senseeven if it is quite questionable whether the EU had
any legislative competence to rule on this issue (because it is certainly not a question
of international private law; only it might fall under an annex competence).22
For the Certificate of Succession, the form established under the Regulation must
be used (art. 67(1)) in order to facilitate the circulation.
All beneficiaries have to be informed of the issuance (art. 67(2)) in order to give
them the chance to challenge the Certificate if they consider it incorrect.
The issuing authority shall keep the original of the Certificate and shall issue certified copies to the applicant or other interested persons (art. 70(1)). It shall also keep
a list of the persons to whom certified copies have been issued (art. 70(2)) so that it
might inform them of a later rectification, modification or withdrawal of the certificate.
The Certificate is valid only for a limited period of six months (art. 70(3)). Thus,
the effects of an incorrect Certificate (such as good faith) are at least limited in time
and the issuing authority has a chance to replace it by a rectified or modified Certificate or to withdrawn it completely. In the legislative process, other options for a
withdrawal of incorrect Certificates had also been discussed, but had been considered
impracticable on a European level.
3.4 Procedure after the issuing
The Regulation also enables the issuing authority to rectify, modify or withdraw the
Certificate (art. 71). A Certificate may be challenged by any person entitled to apply
for a Certificate (art. 72). While a petition for modification or withdrawal is pending or during a redress procedure, the effects of the Certificate may be temporarily
suspended (art. 73).
4 Contents of the Certificate
The European Certificate of Succession will be quite a lengthy document, if we look
at the list of its contents (art. 68). Thus in practice, a translation will be necessary due
21 Proposal for a Regulation of the European Parliament and of the Council on promoting the free move-

ment of citizens and businesses by simplifying the acceptance of certain public documents in the European
Union and amending Regulation (EU) No 1024/2012, COM(2013) 228 final of 24.4.2013.
22 See the references in footnote 14.

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to the amount of information given in the Certificate. However, the issuing authority
has to include the information only to the extent required for the purpose for which
it is issued (art. 68 phrase 1).
4.1 Information on issuance
It goes without saying, that the Certificate, like every court decision has to state (a) the
issuing authority, (b) the reference number of the file and (c) the date of issue. The
Regulation goes further and requires also a statement of the elements on the basis of which the issuing authority considers itself competent to issue the Certificate
(art. 68(c)). This simplifies the control in a redress procedure. However, for the practical use of the Certificate, it is irrelevant.
4.2 Applicant
Also, I cannot see any practical necessity to include details concerning the applicant
in the Certificate. However, art. 68(e) requires these details.
4.3 Deceased
Of course, the Certificate has to state the details of the deceased. Art. 68(e) requires
to state the surname (if applicable, surname at birth), given name(s), sex, date and
place of birth, civil status, nationality, identification number (if applicable), address
at the time of death, date and place of death. Again, civil status and nationality are
useful, but not really necessary information.
4.4 Matrimonial property regime
One might be astonished to find also information on the deceaseds matrimonial property regime in the European Certificate of Succession (as well as information whether
a marriage contract had been entered into by the deceased, art. 68(h). However, in
most continental legal systems, for a married person, the estate consists only in those
assets, which are left after the distribution of the marital property regime has taken
place.
The questions of matrimonial property are still an open flank in the Succession
Regulation. First, the law applicable to matrimonial property has not yet been harmonised.23 So the Member States issuing the European Certificate of Succession
might apply a different law to matrimonial property than the Member State in which
the Certificate is being used.24 Secondly, the statements on the matrimonial property
regime in the European Certificate of Succession are not binding for the other Member States (because the Regulation is not applicable to matrimonial property law). So
it is an interesting piece of information, but not a binding one.
23 See the Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and en-

forcement of decisions in matters of matrimonial property regimes of 16.3.2011, COM(2011) 126 final.
24 Even after a future harmonisation by the proposed Regulation on Matrimonial Property, that problem

will only be solved for marriages contracted after the date of application of the new Regulation, not for the
previously contracted marriageswhich will still constitute the vast majority of marriages for a long time.

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4.5 Basis of succession

The tendency of the Regulation to include as much information as possible, may
also be seen in the fact, that the European Certificate of Succession has to state the
applicable law and the basis of it (art. 68(i)), as well as whether the succession is
based on a testament or on intestacy (art. 68(j)). Again, this information makes it
easier to understand the Certificate, but is not really necessary for its use.
4.6 Beneficiaries
Of course, the Certificate has to state the heirs and their respective share in the estate (Art. 68(k) and (l)). However, a German lawyer might be astonished to see also
the other beneficiaries included in the Certificate, including the distribution of assets among the heirs as stated in the will (l) (the list of rights and/or assets for any
given heir) and (m) the list of rights and/or assets for any given legatee. Under the
wording of the Regulation it makes no difference of whether, under the law applicable to the succession, the heirs or legatees become owners of the respective assets
by operation of law or whether an additional contractual transfer of ownership is
required. That contradicts to article 63(2). I hope that the forms will make that difference, because the latter information is not necessary for use of the Certificate as
a proof of the power of the estate, but would make it rather a to-do-list for the heirs
or administrators. Also the Certificate should mention whether or not the respective
beneficiaries have accepted or waived the succession (art. 68(l)). However, the Certificate is supposed to inform only about the statutory share or about the disposition
of the deceased. It is not an instrument to record agreements among the heirs or other
beneficiaries as to the distribution of the assets.25
4.7 Power to dispose of the assets
Finally, the Certificate is supposed to contain information on the power to dispose of
the assets of the estate, namely (n) the restrictions on the rights of the heir(s) and, as
appropriate, legatees and (o) the powers of the executor of the will and/or administrator of the estate and the restrictions on those powers. The Regulation requires to
include not only the restrictions under the disposition mortis causa, but also under
the law applicable to the succession.
So what about statutory limitations? In many legal systems, the executor must not
and cannot validly donate assets. Under the wording of the Regulation, it seems that
also such statutory limitations have to be stated in the Certificate. In practical terms,
that is quite difficult. It would mean to quote the relevant articles of the statute in
each Certificate. We will have to wait for the publication of the form to see whether
the European legislator really demanded such a shorthand lecture on the applicable
succession law. If so, the practice in each Member State will have develop a shorthand
method of condensing the relevant information.
25 This is a difference from the Nordic (tax) inventory of the estate.

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5 Purpose and effects of the Certificate

5.1 Purpose of the Certificate
As stated by article 63(2), the Certificate may be used in particular to proof (a) the
status of an heir or other beneficiary of the estate (and their respective shares of
the estate), (b) the attribution of a specific asset to the heir or the legatee, and (c) the
powers to execute the will or administer the estate in another Member State. Legatees
may use it only if they have direct rights in the succession.
5.2 Effects of the Certificate
5.2.1 Direct effect
The Certificate shall produce its effects in all Member States, without any special
procedure being required (art. 69(1)). In particular, no legalisation, apostille or other
similar formality shall be required (art. 74).
5.2.2 Presumption of correctness
The Certificate shall be presumed to accurately name the heir, legatee, executor of
the will or administrator of the estate and their respective rights (such as the assets
allocated to them or their powers to administrate the estate and dispose of its assets).
Also it is presumed that no conditions or restrictions are being attached to those rights
or powers other than those stated in the Certificate (art. 69(2)).
5.2.3 Good faith
The Regulation protects the good faith in the content of the Certificate: Under article 69(4), where a person mentioned in the Certificate as authorised to dispose of
succession property disposes of such property in favour of another person, that other
person shall, if acting on the basis of the information certified in the Certificate, be
considered to have transacted with a person with authority to dispose of the property
concerned, unless he knows that the contents of the Certificate are not accurate or is
unaware of such inaccuracy due to gross negligence.
The same protection of good faith applies, if payment is made or property transferred to a person who is entitled according to the Certificate (art. 69(3)). In both
cases, not only positive knowledge, but also gross negligence forecloses the protection of good faith.
These rules on the presumption of correctness and the protection of good faith (art.
69(2)(4)) are no rules of international private law, but rather change the substantive
national succession law. It is doubtful whether the European legislator was competent
to enact such rules of substantive law.26 One might argue that these rules are covered
by an annex competence. However, no Member State questioned these rules. So they
are binding law.
26 See the references in footnote 14.

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5.2.4 Entry in national property registers

Finally, the Certificate constitutes a valid document for the recording of succession property in the relevant register of a Member State (art. 69(5)). This, however,
applies without prejudice to points (k) and (l) of article 1(2). Article 1(2) point (k)
excludes the nature of rights in rem from the scope of application of the Regulation.
Also point (l) excludes any recording in a register of rights in immovable or movable property, including the legal requirements for such recording, and the effects of
recording or failing to record such rights in a register. These exclusions have to be
read in the light of recital 18, which refers to the application of the lex rei sitae for
immovables. It reads:
The requirements for the recording in a register of a right in immovable or
movable property should be excluded from the scope of this Regulation. It
should therefore be the law of the Member State in which the register is kept
(for immovable property, the lex rei sitae) which determines under what legal
conditions and how the recording must be carried out and which authorities,
such as land registers or notaries, are in charge of checking that all requirements are met and that the documentation presented or established is sufficient
or contains the necessary information. . . .
Thus, for the registration the European Certificate of Succession replaces a national
certificate of succession. However, the European Certificate of Succession does not
carry more weight than the national certificate. If the national law requires additional
documents besides the national certificate, it may do so also for the European Certificate of Succession (e.g. a document on the transfer of property from the heir to
legatee, if under the lex rei sitae immovable property does not fall by statute to the
legatee, but only by an act of transfer).27
5.3 Examples
5.3.1 Basic example
Let me demonstrate the effects of the European Certificate of Succession in three
examples, starting with a basic example for the probative value of the Certificate
under article 69(2):
The deceased had his last habitual residence in Italy. In his will he has designated
his nephew Antonio as his sole heir. To his estate belong also an apartment and a bank
account in Frankfurt, Germany. The Italian authority issues a European Certificate of
Succession according to which Antonio is the sole heir.
The European Certificate of Succession suffices for Antonio both to obtain the
registration of the bank deposit (art. 69(2)) and of the immovable in the land register
(art. 69(5)) in his name as the sole heir.
27 Hertel [3].

406

C. Hertel

5.3.2 Example for protection of good faith

Now let us add some facts to our example: Supposed, after Antonio had been registered, he sells the apartment and spends the money in the bank deposit. Afterwards, a later testament is found according to which the whole estate goes to the
niece Franziska, not to Antonio.
As it turns out, the bank has paid the money to the wrong personand Antonio
has sold an apartment which did not belong to him. However, if the bank paid in good
faith, the payment is valid under article 69(3) of the Succession Regulation. Also a
good faith buyer will become owner of the apartment (art. 69(4)).
The buyer of the apartment even enjoys double protection in his good faith in the
correctness of the Certificate (art. 69(4)) andif Antonio had been registered in the
land registeredin the correctness of the land register ( 892 BGBGerman Civil
Code). Under the Regulation, gross negligence already destroys the good faith (art.
70)whereas under 892 BGB only positive knowledge that the land register is
incorrect would destroy the good faith.
5.3.3 Example for reservation for national land register
In the final example, let us look at the limits of the European Certificate: The deceased
had his last habitual residence in Italy. In his will, again he designates his nephew
Antonio as his sole heir. To Franziska, his niece, he bequeaths an apartment and
a bank deposit in Frankfurt. Franziska wants to register both assets in her name.
The Italian authority issues a European Certificate of Succession according to which
Antonio is the sole heir and Franziska as a legatee gets the apartment and the bank
deposit. According to Italian law, the bequeathed property falls directly by operation
of law to the beneficiary.
For the transfer of the bank deposit, the European Certificate of Succession suffices. For non-registered movable assets, the applicable Italian succession law trumps
the rules of German law. By operation of (Italian succession) law, Franziska becomes
owner of the bank account, as she may prove with the Certificate.
For the immovable however, a direct registration of the legatee is not possible
under German law. A national certificate of succession (Erbschein) would enable
only to register the immovable in the name of the heir. Then, in a second step, the
heir has to transfer property to the legatee. Due to the reservation for the national
registers under article 69(5), the European Certificate of Succession cannot have more
effects than the national certificate of the state of registration. So for immovables, the
applicable lex rei sitae (here German law) trumps the applicable succession law (here
Italian law). For the German real estate, first the heir Antionio has to transfer the
property to Franziska; only then the immovable property can be registered in her
name.

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