As a Member State of the European Union the Regulation holds true for Bulgaria and is applied directly. Regulation No 650/2012, adopted by the European Parliament and the Council on 4 July 2012, on jurisdiction, applicable law, recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in matters of succession, as well as the introduction of an European Certificate of Succession, is being terminated on 17 August 2015 with respect to inheritance in the event of death of persons who died on 17 August 2015 and thereafter (Article 84 of the Regulation).
As a Member State of the European Union, the regulations are binding on Bulgaria and are applied directly. Regulation No 650/2012, adopted by the European Parliament and the Council on 4 July 2012, as regards jurisdiction, applicable law, recognition and enforcement of decisions and the acceptance and enforcement of authentic instruments in matters of succession, as well as the introduction of an European Certificate of Succession, is being terminated on 17 August 2015 with respect to inheritance in the event of death of persons who died on 17 August 2015 and thereafter (Article 84 of the Regulation).
The purpose of the regulation is to remove the obstacles to the free movement of persons who are currently experiencing difficulties in enforcing their rights in connection with a cross-border inheritance. In an European judicial area, citizens must be able to regulate their estate in advance. This also applies to Bulgaria. The rights of the heirs, legatees and other persons related to the deceased and the creditor of the estate must be effectively safeguarded (P. 7 of Regulation No 650/2012). In order to achieve those objectives, this Regulation must summarize the provisions on jurisdiction, applicable law, recognition - or, where applicable, the acceptability, enforceability and enforcement of decisions, authentic instruments and judicial settlements and the creation of an European Certificate of Succession.
The principles provided for in Regulation No 650/2012 of the European Parliament and of the Council are:
I. Applicable Law
All applicable succession laws are governed by applicable law, and in particular:
а) the reasons for the occurrence of the inheritance and its time and place;
b) the appeal of the beneficiaries, the determination of their respective shares and any duties imposed on them by the testator, as well as the determination of other rights to the estate, including the estate of the surviving spouse or partner;
c) the heredity;
d) the disinheritance and the unworthiness;
e) the transfer of the assets, rights and obligations inherent in the estate to the heirs and, where appropriate, the legatees, including the conditions for acceptance or rejection of the estate or a legacy and their effects;
f) the rights of heirs, executors and other administrators, in particular with regard to the sale of property and the satisfaction of creditors, without prejudice to the powers referred to in Article 29 (2) and (3);
g) the liability for the inheritance liabilities;
h) the available part of the estate, the compulsory portions and other restrictions on the freedom of testation and any claims by persons close to the deceased, against the estate or against the heirs;
i) the adjustment and crediting of gratuities in the determination of the shares of the individual beneficiaries and;
j) the division of the estate.
1. Applicable right after ordinary residence of the deceased at the time of his death
Legal succession is governed by the law of the state in which the testator has had his habitual residence at the time of the death (Article 21 (para.1). This change can be clearly observed in the German legal system, because up to now, according to the German EGBGB (EGBGB, 4th Section - Inheritance Law, Article 25, paragraph 1), the law applicable to succession, was the law of the state to whose jurisdiction the Testator belonged to, at the time of his death, e.g. what nationality he is. The Bulgarian Code of Private International Law (abbreviated to "BKIP") is very close to the new provision in the Regulation and reads as follows: "The succession of deaths in the case of movable property is governed by the law of the State in which the deceased has had his habitual residence at the time of his death. The succession of immovable property is governed by the law of the state in which the property is located. The testator may choose that the succession of death for his property finds an entire regulation of the law of the state of which he was a national at the time of the election (Article 89 BKIP).
A. Regarding the definition of the term "habitual residence"
The usual stay in Bulgaria is when a certain person lives in the Republic of Bulgaria for more than 185 days in each calendar year.
The European Commission has published a practical guide on habitual residence criteria for assisting Member States in transposing EU social security coordination rules for European citizens who have moved to another Member State.
The European Commission has published a practical guide on habitual residence criteria for assisting Member States in transposing EU social security coordination rules for European citizens who have moved to another Member State. The guide sets out the specific criteria to be taken into account for determining the habitual residence of a particular person, such as:
- Family relationships and family ties of the Person;
- Duration and continuity of stay in the territory of the Member State concerned;
- The nature and characteristics of employment (in particular the place where such activity is normally carried out, the performance of the activity and the duration of the employment contract);
- Exercise of unpaid activity;
- In the case of students, their source of income;
- Housing situation especially of permanent character;
- Member state that is the tax residence of the person;
- Reasons for moving;
- Will of the person, as he could be seen from all circumstances, evidenced by fact based evidence;
Other facts may also be considered, as far as they are relevant.
If the habitual residence is determined, the authority responsible for the inheritance should give an overall assessment of the circumstances of the testator in the years preceding his death and at the time of his death, taking into account all relevant facts, in particular the duration and regularity of the testator's residence in the State concerned and the circumstances and reasons connected therewith. The habitual residence thus determined should show a particularly close and consistent relationship with the State concerned, taking into account the specific objectives of Regulation No 650/2012 (paragraph 23 of the preamble to Regulation No 650/2012).
In some cases, it can be complicated to determine the place where the testator has had his habitual residence. This may in particular be the case if the testator is for professional or for economic reasons - may have gone to another state to work there, but has maintained a close and stable bond with his country of origin. In that case, according to the circumstances, it may be assumed that the deceased's habitual residence continues to be in his State of origin,
which was the center of his family and social life. Other complex cases may arise if the testator lived alternately in several states or even travelled from state to state without settling in a state for a long time. If the testator is a national of one of those States or if he has all his principal assets in one of those States, his nationality or the place where those assets are located may be a particular factor in the overall assessment of all factual circumstances (paragraph 24 of the preamble Regulation No 650/2012).
2. Principle of close connection
The Regulation provides for an exception to the rule of applicable law of the State where the testator had his habitual residence at the time of death. In the event of circumstances in which the testator had a manifestly closer connection with a State other than the State after his habitual residence, Article 21 (2) of the Regulation provides that the law of that other State is to be applied.
Pursuant to paragraph 25 of the preamble, in relation to the determination of the law applicable to succession, the authority competent to remedy the case may, in exceptional cases - in which, for example, the testator only moved to the state of his habitual residence shortly before his death, and the totality of the circumstances shows that he had a manifestly closer connection with another state - concluding that the succession was death is not subject to the law of the habitual residence of the testator, but to the law of the state to which the deceased obviously had a closer connection.
However, the apparently closest link should not be used as a subsidiary link if it is difficult to establish the habitual residence of the testator at the time of the death.
3. Choice of law
The choice of law for the succession of death is limited to the nationality of the person making the choice.
Paragraph 1, provides for the possibility that the person for the succession may choose the law of the state to which he belongs at the time of the choice of law or at the time of his death. Any person with multiple nationalities may choose the law of one of the states to which he belongs at the time of the choice of law or at the time of his or her death. The choice of law must be expressly made in a declaration in the form of an ex officio decision (will) or result from the provisions of such an order.
The amendment or cancellation of the choice of law must be made in accordance with the requirements of the form in case of a change or cancellation of an injunction on a fortune.
Pursuant to Article 4 of the Regulation, judgments in respect of succession are governed by the courts of the Member State in whose territory the deceased was habitually resident at the time of death.
The courts of a Member State whose law the testator has chosen are competent to decide on a succession, if:
a) a court has previously declared that it had no jurisdiction under Article 6 of the Regulation in the same case;
b) the parties to the proceedings pursuant to Article 5 have agreed on the jurisdiction of a court or of the courts of that Member State (choice of court agreement); or
c) the parties to the proceedings have expressly recognized the jurisdiction of the court seized.
The so-called Subsidiaries (Article 10) are also provided for in cases where the testator had not habitually resided in a Member State at the time of his death. In that case, the courts of a Member State in which succession exists are responsible for the succession of succession decisions for the entire estate, if:
a) the deceased was a national of that Member State at the time of his death, or if not,
b) the testator has had his previous habitual residence in the Member State concerned, provided that the change in that habitual residence at the time of the court's referral did not take place more than five years ago.
If there is no court in the Member State which is competent under the conditions set out above, the courts of a Member State in which the estate is located shall nevertheless be competent to make decisions concerning that estate.
Additional responsibility in case of acceptance or rejection of the inheritance
Added possibility for any person who, in accordance with the law applicable to succession in the death of a court, has a declaration of acceptance or disclaimer of the inheritance, a legacy or a compulsory portion or a declaration limiting the liability of the person concerned for the inheritance liabilities can give. Thus, in accordance with Article 13, the courts of the Member State in which a person is habitually resident may, under Article 13 of that regulation, have jurisdiction to receive such declarations, provided that those declarations are governed by the law of that Member State Court can be delivered.
In the next article we explain in detail the procedure for issuing a European Certificate of Succession in Bulgaria and its legal consequences.