The notary public’s role in situations of intestate succession

Abstract

This professional report seeks to examine the role of the notary in situations of intestate succession. The fact that notaries play a crucial role in the interpretation of the devolution of the estate of a deceased cannot be denied. Indeed, in cases of domestic intestate succession, not only does a notary have the of interpreting the succession in question in accordance with the law applicable law, that is, the law in force at the date of death of the deceased, but also that of ascertaining the identity of the relatives of the deceased. In this regard, the potential of filing of an application for the opening of succession in terms of the Code of Organisation and Civil Procedure and that of attaining an affidavit of the family tree of the deceased will be explored. The Notary also has a challenging role when encountering cross-border successions in the course of his work. For the purposes of this report, the term “cross-border succession” only includes those successions to which the European Union Regulation 650/2012 applies. Firstly, in such situations, Notaries often encounter difficulties in establishing the last habitual residence of the deceased. The importance of this lies in the fact that in the absence of a choice of law, the general rule is that the connecting factor which determines which country which has jurisdiction over the succession in question, as well as the applicable law is the last habitual residence of the deceased. In this regard, the author provides a brief overview of the tools, such as ECSs, probates and signed declarations from a notary or advocate/solicitor in the country of the applicable law on the succession of the deceased, which provide notaries with proof as to how the cross-border succession in question devolved in accordance with the foreign applicable law. Furthermore, reference is also may to the fact that one of the duties of a notary, as established in Chapter 55, is that of issuing ECSs. In this regard, the professional report highlights and addresses the most plausible reason, in the opinion of the author, as to why many notaries in Malta often refrain for exercising this power.