eunbil · GZ0N2A0D23 · 2011-12-06 00:00:00 — The application shall contain the information listed below, to the extent that such information is within the applicants knowledge and is necessary to enable the issuing authority to certify the elements which the applicant wants certified, and shall be accompanied by all relevant documents either in the original or by way of copies which satisfy the conditions necessary to establish their authenticity, without prejudice to Article 40(1a): (a) details concerning the deceased: surname (if applicable, name), 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; (b) details concerning the applicant: surname (if applicable, name), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address () and relationship to the deceased, if any; (b1) details concerning the representative of the applicant, if any: surname (if applicable, name), given name(s), address and representative capacity; (b2) the details of the spouse or partner of the deceased and, if applicable, ex-spouse(s) or ex-partner(s): surname (if applicable, name), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable) and address; (b3) the details of other possible beneficiaries under a disposition of property upon death and by operation of law: surname and given name(s) or organisation name, identification number (if applicable) and address; (b4) the intended purpose of the Certificate in accordance with Article 36a; (b5) the contact details of the court or other competent authority which is dealing with or has dealt with the succession as such, if applicable; (c) the elements () on which the applicant founds, as appropriate, his claimed right to succession property as beneficiary and/or right to execute the will of the deceased and/or right to administer the estate of the deceased; (c1) an indication of whether the deceased had made a disposition of property upon death (); if neither the original nor a copy is appended, indication regarding the location of the original; (d) () (e) an indication of whether the deceased had entered into a marriage contract or into a contract regarding a relationship which may have comparable effects to marriage (); if neither the original nor a copy of the contract is appended, indication regarding the location of the original; (e1) an indication of whether any of the beneficiaries have made a declaration concerning the acceptance or, as appropriate, the waiver of the succession; (f) a declaration stating that, to the applicants best knowledge, no dispute is pending relating to the () elements to be certified; (g) any other information which the applicant deems useful for the purposes of issuing the Certificate. () 3. Article 39 Partial Certificate (deleted) Article 40 Examination of the application 1. Upon receipt of the application the issuing authority shall verify the information and declarations and the documents and other means of evidence provided by the applicant. It shall carry out the enquiries necessary for that verification of its own motion where this is provided for or authorised in its own law or invite the applicant to provide any further evidence which it deems necessary. Where the applicant has been unable to produce copies of the relevant documents which satisfy the conditions necessary to establish their authenticity, the issuing authority may decide to accept other forms of evidence. Where this is provided for in its own law and subject to the conditions laid down therein, the issuing authority may require that declarations be made on oath or by a statutory declaration in lieu of an oath. (moved to paragraph 1) 2a. The issuing authority shall take all necessary steps to inform the beneficiaries of the application for a Certificate. It shall, if necessary for the of the elements to be certified, () hear any person involved and any executor or administrator () and make public announcements aimed at giving other possible beneficiairies the opportunity to invoke their rights. For the purposes of this () Article, the competent authority of a , upon request, provide () the issuing authority of another with information held, in particular, in the land registers, the civil status registers and registers recording documents and facts of relevance for the succession or for the matrimonial property regime or an equivalent property regime () of the deceased (), where that competent authority would be authorised, under national law, to provide another national authority with such information. Article 40a Issue of the Certificate The issuing authority shall issue the Certificate without delay in accordance with the procedure laid down in this Chapter when the elements to be certified have been established under the law applicable to the succession or under any other law applicable to specific elements. It shall use the form to be established in accordance with the advisory procedure referred to in Article 48(3). The issuing authority shall not issue the Certificate in particular: (a) if the elements to be certified are being challenged, or (b) if the Certificate would not be in conformity with a decision covering the same elements. The issuing authority shall take all necessary steps to inform the beneficiaries of the issue of the Certificate. Article 41 Contents of the Certificate 1. () 2. The Certificate shall contain the following information to the extent required for the purpose for which the Certificate is issued: (a) the name and address of the issuing authority; (a0) the reference number of the file; (a1) the elements () on the basis of which the issuing authority considers itself competent to issue the Certificate (); (a2) the date of issue; (a3) details concerning the applicant: surname (if applicable, name), given name(s), sex, date and place of birth, civil status, nationality, identification number (if applicable), address and relationship to the deceased, if any; (b) details concerning the deceased: surname (if applicable, name), 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; (b1) details concerning the beneficiaries: surname (if applicable, name), given name(s) and identification number (if applicable); (c) information concerning a marriage contract entered into by the deceased or, if applicable, a contract entered into by the deceased in the context of a relationship deemed by the law applicable to such a relationship to have comparable effects to marriage and information concerning the matrimonial property regime or equivalent property regime; (d) the law applicable to the succession and the () elements () on the basis of which that law has been determined; (e) information as to whether the succession is intestate or testate under a disposition of property upon death, including information concerning the elements () giving rise to the rights and/or powers of the heirs, legatees, executors of wills or administrators of the estate; (f) () (g) if applicable, information in respect of each beneficiary concerning the nature of the acceptance or the waiver of the succession; (h) () the share for each heir and, if applicable, the list of rights and/or assets for any given heir; (i) the list of rights and/or assets for any given legatee; (j) the restrictions on the rights of the heir(s) and, as appropriate, legatee(s) under the law applicable to the succession and/or under () the disposition of property upon death; (k) the powers of the executor of the will and/or the administrator of the estate and the restrictions on those powers () under the law applicable to the succession and/or under the disposition of property upon death. Article 42 Effects of the Certificate 1. The () Certificate shall produce its effects in all without any special procedure being required. It shall be presumed that the () Certificate demonstrates accurately elements which have been established under the law applicable to the succession or under any other law applicable to specific elements (). The person mentioned in the Certificate as the heir, legatee, executor of the will or administrator of the estate shall be presumed to have the status mentioned in the Certificate and/or to hold the rights () or the powers () stated in the Certificat with no other conditions and/or restrictions attached to those rights or powers than those stated in the Certificate. person who, acting on the basis of the information certified in a Certificate, makes payments or passes on property to a person mentioned in the Certificate as authorised to accept payment or property () shall be considered to have transacted with a person with the authority to accept payment or property, unless he knows that the contents of the Certificate are not accurate or is unaware of such inaccuracy due to gross negligence. 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 the 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 Certificate shall constitute a valid document () for the () recording of () succession property in the relevant register of a Member State (), without prejudice to Article 1(3)(j) and (k). Article 42a Certified copies of the Certificate The issuing authority shall keep the original of the Certificate () and shall issue one or more certified copies to the applicant and to any person demonstrating a legitimate interest. The issuing authority shall, for the purposes of Article 43(3), keep a list of persons to whom certified copies have been issued pursuant to paragraph 1. The certified copies issued shall be valid () for a limited period of six months to be indicated in the certified copy by way of an expiry date. Once this period has elapsed, () any () person in possession of a certified copy must, in order to be able to use the Certificate for the purposes indicated in Article 36a, apply for a prolongation of the validity period of the certified copy or request a new certified copy from the issuing authority (). Article 43 Rectification, () modification or withdrawal of the Certificate 0. The issuing authority shall, at the request of any person demonstrating a legitimate interest or of its own motion, rectify the Certificate in the event of a clerical error. The issuing authority shall, at the request of any person demonstrating a legitimate interest or, where this is possible under national law, of its own motion, () modify or withdraw the Certificate where it has been established that the Certificate or individual elements thereof are not accurate. (a) (.) (b) (); (c) () The issuing authority shall without delay () inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 42a(1) of any rectification, modification or withdrawal thereof. Article 44 Redress procedures () person entitled to apply for a Certificate may challenge any decision taken by the issuing authority pursuant to Articles 40a, 43 and 44a. The challenge shall be lodged before a judicial authority in the of the issuing authority in accordance with the law of that State. If, as a result of the challenge referred to in paragraph 1, it is established that the Certificate issued is not accurate, the competent judicial authority shall modify or withdraw the Certificate or ensure that the issuing authority rectifies, modifies or withdraws the Certificate. Article 44a Suspension of the effects of the Certificate The effects of the Certificate may be suspended by: (a) the issuing authority, at the request of any person demonstrating a legitimate interest, pending a modification or withdrawal of the Certificate pursuant to Article 43, or (b) the judicial authority, at the request of any person entitled to apply for a Certificate, pending a challenge of the Certificate pursuant to Article 44. The issuing authority or, as the case may be, the judicial authority shall without delay inform all persons to whom certified copies of the Certificate have been issued pursuant to Article 42a(1) of any suspension of the effects of the Certificate. During the suspension of the effects of the Certificate no further certified copies of the Certificate may be issued. Chapter VII General and final provisions Article 44b (4/2009 Article 65 / I Article 56) Legalisation and other similar formality No legalisation or other similar formality shall be required for documents issued in a in the context of this Regulation. Article 45 Relations with existing international conventions 1. This Regulation shall not affect the application of international () conventions to which one or more Member States are party at the time of adoption of this Regulation and which () concern matters covered by this Regulation (). In particular, the Member States which are Contracting Parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws to the Form of Testamentary Dispositions shall continue to apply the provisions of that Convention instead of Article 19d of this Regulation with regard to the formal validity of wills and joint wills. Notwithstanding paragraph 1, this Regulation shall, as between Member States, take precedence () over conventions () concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation (). This Regulation shall not preclude the application of the Convention of between , , , and comprising international private law provisions on succession, wills and estate administration, as revised by the intergovernmental agreement between those States of [date] 2012, by the Member States which are parties thereto, in so far as it provides for: (a) an assistance with regard to the administration of the estate by the authorities of the State in which succession property is located, and (b) simplified and more expeditious procedures for the recognition and enforcement of decisions in matters of succession. Article 45a Relations with Council Regulation (EC) No 1346/2000 This Regulation shall not affect the application of Council Regulation (EC) No 1346/2000 of 29 2000 on insolvency proceedings. Article 46 (mutatis mutandis 4/2009 Article 70) Information made available to the public The Member States shall, with a view to making the information available to the public within the framework of in civil and commercial matters, provide the Commission with a short summary of their national legislation and procedures relating to () succession (), including information on the type of authority which has competence in matters of succession and information on the type of authority competent to receive declarations of acceptance or waiver of the succession, a legacy or a reserved share under Article 8. The Member States shall also provide fact sheets listing all the documents or information usually required for the purposes of registration of immovable property located on their territory. The Member States shall keep the information updated permanently (). Article 46a (mutatis mutandis 4/2009 Article 71) Information on contact details and procedures By [], the Member States shall communicate to the Commission: (a) the names and contact details of the courts or authorities with competence to deal with applications for a declaration of enforceability in accordance with Article 33-1(1) and with appeals against decisions on such applications in accordance with Article 33-6(2); (b) the redress procedures referred to in Article 33-7; (c) the relevant information regarding the authorities competent to issue the Certificate pursuant to Article 37; and (d) the redress procedures referred to in Article 44. The Member States shall apprise the Commission of any subsequent changes to this information. The Commission shall publish the information communicated in accordance with paragraph 1 in the , with the exception of the addresses and other contact details of the courts and authorities referred to in point (a). The Commission shall make all information communicated in accordance with paragraph 1 publicly available through any other appropriate means, in particular through in civil and commercial matters. Article 47 of and subsequent amendment of the list referred to in Article 2(2) The Commission shall, on the basis of the notifications by the Member States, establish the list of other authorities and legal professionals referred to in Article 2(2). The Member States shall notify the Commission of any subsequent amendments to that list. The Commission shall amend the list accordingly. The Commission shall publish the list and any subsequent amendments in the . The Commission shall make all information communicated in accordance with paragraph 1 publicly available through any other appropriate means, in particular through in civil and commercial matters. Article 47a of and subsequent amendment of the attestations and the forms referred to in Articles 33-2, 34, 35, 35a, 38 and 40a The Commission shall adopt implementing acts establishing and subsequently amending the attestations and forms referred to in Articles 33-2, 34, 35, 35a, 38 and 40a. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 48(2). Article 48 Committee procedure 1. The Commission shall be assisted by a committee (). shall be a committee within the meaning of Regulation (EU) No 182/2011. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply (). By [] at the latest the Commission shall submit to Parliament, the Council and Economic and a report on the application of this Regulation, including an evaluation of any practical problems encountered in relation to parallel out of court settlements of succession cases in different Member States or an out of court settlement in one carried out in parallel with a settlement before a judicial authority in another . The report shall be accompanied, where appropriate, by proposals for amendments. Article 50 Transitional provisions 1. This Regulation shall apply to the succession of persons deceased on or after its date of application Where the deceased had chosen the law applicable to his succession prior to the date of application of this Regulation, that choice shall be () valid if it meets the conditions laid down in () Chapter III or if it was valid 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 or in any of the States whose nationality he possessed. A disposition of property upon death made prior to the date of application of this Regulation shall be admissible and valid in substantive terms and as regards form if it meets the conditions laid down in Chapter III or if it was admissible and valid in substantive terms and as regards form in application of the rules of private international law in force, at the time the disposition was made, in the State in which the deceased had his habitual or in any of the States whose nationality he possessed. Article 51 Entry into force This Regulation shall enter into force on the twentieth day following its publication in the . It shall apply from [], except for Articles 46 and 46a which shall apply from [] and Articles 47, 47a and 48 which shall apply from [] This Regulation shall be binding in its entirety and directly applicable in all the Member States in accordance with the () Treaties. Done at () For Parliament For the Council The President OJ C 44, , p. The recitals will be finalised at a later stage. It will be indicated in a recital that the future Regulation will apply only to succession cases with cross-border implications. The provisions of each Chapter will make it clear in which situations the future Regulation will apply. It will be indicated in a recital that "administrative matters" here refers to administrative public law issues and not to matters relating to the administration of the estates of deceased persons. It will be indicated in a recital that this exclusion also covers marriage settlements to the extent that such settlements do not deal with succession matters. It will be indicated in a recital that this exclusion is not to be seen as a general exclusion of trusts. The creation of a trust under a will or the creation of a statutory trust in connection with intestate succession will fall within the scope of the future Regulation and will be governed by the law applicable to the succession under the Regulation with respect to the devolution of the assets and the determination of the beneficiaries. It will be indicated in a recital that this exclusion entails that a will not be required to recognise a right in rem relating to property in that if the right in rem in question is not known in its property law. However, in such a case the concerned will, to the extent possible, have to adapt the unknown right in rem to the closest equivalent national right. It will be indicated in recitals what this exclusion means. Such recitals will be worded along the following lines): 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 in which the register is kept which determines under what legal conditions and how the recording must be carried out and which authorities are in charge of checking that all requirements are met and that the documentation presented is sufficient or contains the necessary information. In particular, the authorities may check that the right of the deceased to the succession property mentioned in the document presented for registration is a right which is recorded as such in the register or otherwise demonstrated in accordance with the law of the in which the register is kept. In order to avoid duplication of documents, the registration authorities should accept such documents drawn up in another by the competent authorities whose circulation is foreseen by this Regulation. In particular, Certificate of Succession issued under this Regulation should constitute a valid document for the recording of succession property in a register of a . This should not preclude that the registration authorities may ask the person applying for registration to provide such additional information or documents which are required under the law of the in which the register is kept. The competent authority may indicate to the person applying for registration how the lacking information can be provided. The effects of the recording of a right in a register should also be excluded from the scope of this Regulation. It should therefore be the law of the in which the register is kept which determines, in particular, whether the recording is declaratory or constitutive in effect. Thus, if, for instance, the acquisition of a right in an immovable property requires the recording in a register under the law of the State in which the register is kept, the moment of such acquisition should be governed by the law of that State." The Member States should provide fact sheets listing all the documents or information usually required for the purposes of registration of immovable property located on their territory under Article 46.