Lithuania will probably have to accept European certificates of inheritance without naming a specific property.
On 14 July 2022, the preliminary version of the Advocate General’s Opinion in Case C-354/21 (R.J.R., Registrų centras) was published.
As the conflict before the ECJ exists in a similar form in other CEE countries (including the Czech Republic, read more here), it can be assumed that the ECJ’s decision will have a fundamental character for European succession law and would finally bring numerous unresolved succession proceedings in Europe to a conclusion.
As a rule, the ECJ follows the Opinion in its decisions.
As already reported (Lithuania: Question on inheritance matter referred to the ECJ), the Supreme Administrative Court of Lithuania referred a question on succession law from the Lithuanian Supreme Administrative Court to the ECJ for a preliminary ruling in 2021.
The underlying proceedings before the Lithuanian Supreme Administrative Court involve an inheritance case under German law, whereby the object of inheritance is a property in Lithuania. The legal basis for this is Regulation No. 650/2012 (Succession Regulation). This should actually simplify cross-border inheritance cases by having the inheritance proceedings take place in only one member state. However, German inheritance cases involving real estate located in Lithuania have led to numerous conflicts that have not yet been resolved.
In the underlying proceedings, the inheritance proceedings were correctly conducted only in Germany because the deceased had his last habitual residence here. Although the estate also included a property located in Lithuania, no second inheritance proceedings could be opened in Lithuania under the Succession Regulation. The Lithuanian property also became part of the German inheritance proceedings. However, according to Art. 1 (2) lit. l) of the Succession Regulation, an entry of change of ownership has to be made in the Lithuanian real estate register and according to Lithuanian law. This is where the problems begin.
In order for the heir to be able to prove their status to the real estate register for this purpose, Article 62 (1) of the Regulation introduced the European Certificate of Succession, which is issued for use in another Member State and has effect in that Member State as proof of succession. In a sense, this is a European Certificate of Succession.
However, according to Art. 23 (4) of the Law on the Real Estate Register of the Republic of Lithuania, the Lithuanian real estate register requires that the specific real estate be clearly identified in the certificate. Specifically, it requires an indication of the address as well as the so-called Unikalus No. (unique number of the property). Without this information, the real estate register has so far refused any registration.
There is an as yet unresolved conflict between German inheritance law and Lithuanian real estate register law. The reason is the practice of German probate courts, which (as with the German certificate of inheritance) do not enter the real estate in the European certificate of inheritance, but only the inheritance quota. This practice results from the universal succession applicable in German inheritance law, i.e. upon the death of a person (succession), their property (inheritance) passes as a whole to one or more other persons (heirs). An indication of the property, as required by Lithuanian real estate register law, is therefore not made. However, as things stand, it is not possible to register the change of ownership without indicating the property in the certificate of inheritance in Lithuania.
According to the Advocate General, the Lithuanian real estate register is obliged to register the change in the real estate register despite national „normal practice“ of Lithuanian real estate register law to the contrary, even if the real estate is not specifically named in the certificate of inheritance.
There would be no legitimate reason for the Lithuanian authorities to require, for the purposes of registration, additional information on top of the inheritance quota in order to determine whether the person in question is heir to the property at issue. Requiring this person to contact the German probate court to specify the property in question would be a formalism for which there would be no justification.
After all, even if the specific property acquired by inheritance is not specified in the probate certificate, its acquisition could be proven by this probate certificate. The Lithuanian authorities would have all the information necessary to make the entry in the real estate register: They can determine who owns or has owned the property and would see who is the heir on the basis of the certificate of inheritance.
It would be up to the Lithuanian real estate register to check whether the property in question was covered by the succession, i.e., belonged to the deceased. The authority has to draw all consequences resulting from the information received from the certificate of inheritance.
However, the German probate court was not obliged to indicate the property in the certificate of inheritance. Since Art. 68 of the Regulation did not require any particular identification of the property, no other (national) standard could lead to a different result.
Only if it was objectively impossible to determine the subject matter of the application for a certificate of inheritance in the context of the entry in the property register could it become necessary to supplement the certificate of inheritance in order to prove the general legal succession of the deceased by means of additional documents that would be necessary to precisely identify the inherited property.
Opinion of advocate general Szpunar delivered on 14 July 2022, Case C‑354/21