Succession

Any person acquiring any rights over a property will be subjected to the laws of that particular country, with regard to that particular immovable. Therefore, any formalities required by the Laws of the foreign country will have to be followed, before any person may acquire immovable property in any particular country. Hence, it is advisable for any person owning immovable property in any particular country, to regulate one's estate within that particular territory by a will drawn up in conformity with the local Laws. In absence of any such legally binding document, the property, upon his demise, would be disposed of according to Law, which would vary from country to country. This scenario will change somewhat with the coming into force of Regulation (EU) 650 of 2012 on 17th August, 2015, regulating cross-border succession. The regulation introduces a single connecting factor, the law of the last habitual residence of the deceased, in order to designate both the competent jurisdiction to rule on the whole of a succession and the law applicable to a succession. It also introduces the possibility to choose the law of one of the states whose nationality one possesses as the law applicable to one’s succession.

In Malta, testamentary succession and the drawing up of wills are regulated by the Civil Code.

Apart from that which the Law reserves to descendants and the surviving spouse, one is pretty much free to dispose of his worldly belongings as he pleases. One can bequeath property by singular title known as a legacy (i.e. leaving one particular thing, movable or immovable, to one particular person), and one may also institute universal heirs, i.e. a person or persons who will succeed to the deceased in all his capacities - one would, so to speak, be standing in the deceased's shoes.

Wills are generally cumulative, in that if one does not revoke his previous wills they will all remain effective unless they are in stark contrast with the most recent one. Therefore, to avoid any possible mishaps, it is always wise to revoke any and all previous wills if in doubt.

The Law seeks to safeguard the rights of certain members of the testator's family (like descendants and the surviving spouse or in default any brothers or sisters), by reserving a given portion of the deceased's estate to any such persons. This reserved portion is the right of credit on the estate of the deceased reserved by law in favour of the descendants and the surviving spouse of the deceased. It may only be claimed in money and after due procedures are undertaken in Court. According to Maltese Law the children of the deceased are entitled to one third (if they are not more than four) or one half (if there are five or more) of the estate. The law also stipulates a portion of the estate to which the surviving spouse is entitled. In cases where there are children or other descendants, the surviving spouse is entitled to one-fourth of the value of the estate in full ownership. If there are no children or descendants the surviving spouse is entitled to one-third of the value of the estate in full ownership as a reserved portion.

The reserved portion is to be calculated after one takes into account all that he or she has received from the deceased during the latter's life. This could result in quite a cumbersome task, and usually, the testator would make a particular provision in his will to the effect that any and all that the beneficiaries received from him during his lifetime would not be taken into account. For example, for the purposes of the Law, one would have to list all that he would have received from, say, his father, so that when working out the value of the reserved portion, the value of all that received during the testator's lifetime would be deducted from the share due. In practice, most of the time, one would simply "bless" the beneficiaries with whatever he would have given them during his lifetime and exempt them from this cumbersome and awkward task.

For the better execution of all his dispositions, one may also appoint by virtue of his will a testamentary executor, who will be responsible for the liquidation of the estate of the deceased and to ensure that the testators dispositions are fulfilled at Law and given full effect.

With particular regard to spouses, the Law provides for the possibility of them drawing up a joint will together, thereby regulating all their estate with one legal instrument. After the recent amendments to the Maltese Law of Succession, the local Laws now enable spouses - whether with or without issue - to institute each other as universal heirs, that is they will reciprocally inherit each other, leaving everything they possess to each other.

A will may take either a Public form or a Secret form.

A Public will is one drawn up in front of a Notary and two competent witnesses. This is indeed the most common type of will and the one that will put most people's mind at rest, in that one may seek the Notary's advice and plan his estate accordingly and be sure that the necessary legal requirements are met and adhered to. This type of will is then registered in the Public Registry, however only the Testator's personal details are recorded with no mention of the contents thereof.

A person may opt to write his own will and not divulge its contents to anyone, not even the Notary. This Secret will is then handed to the Notary who, in the presence of two competent witnesses draws up the Act of consignment and deposits the original will in the registry of the Civil Court.

Both types of wills may only be opened once the Testator (the person drawing up the will) is deceased anda copy of the relative death certificate is presented to the Notary.

In order to adapt the rules to the increasing mobility of citizens and to coordinate the coexistence of national inheritance laws, EU Regulation 650/2012 on international successions was adopted on 4 July 2012. It provides a simplified framework for people who have private and financial interests in at least two countries, both within and outside the European Union. The regulation, which came into force on 16 August 2012, will only apply to successions opened from 17 August 2015 onwards.

The regulation applies to all aspects of a succession: from opening to settlement, including devolution and administration. However, the regulation explicitly excludes, everything related to donations, life insurance contracts, tontines, trusts, matrimonial property regimes, maintenance obligations, the nature of rights in rem and taxation.

The regulation introduces a single connecting factor, the law of the last habitual residence of the deceased, in order to designate both the competent jurisdiction to rule on the whole of a succession and the law applicable to a succession. It also introduces the possibility to choose the law of one of the states whose nationality one possesses as the law applicable to one’s succession.

The most salient departure from the present laws regulating sucession in Malta will be that, unless otherwise provided for in the Regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.

A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death. A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death. The choice shall be made expressly in a declaration in the form of a disposition of property upon death, namely a will drawn up in conformity with the laws of the country where it is published.

Finally, the regulation creates the European Certificate of Succession, whose purpose is to simplify the procedures with which heirs are confronted in order to gain possession of the property comprising the estate. The European Certificate of Succession will be automatically recognised in all Member States.

The regulation is available at the following address:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:201:0107:0134:EN:PDF