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Your will in Spain - should you make a new one?

Changes following EU regulations

A new inheritance law has been causing lots of discussion amongst foreigners living in Spain.  The Regulation (EU) No. 650/2012 and the creation of a European Certificate of Succession has raised many questions about the validity of existing Spanish wills covering property in Spain for those who are resident here. The new law was made on 16th August 2012 and came into operation from 17th August 2015.

It’s quite right too that people want to establish whether their existing arrangements will deliver their wishes when they die or not. The vast majority of people are anxious to make the correct arrangements in order to ensure that those they love do not have difficulties sorting out inheritance and that property in Spain is distributed according to their wishes.

The new regulation could make a difference to whether this does happen or not. Those EU citizens who live in a country different to that of their nationality for more than two years may well be affected.  Cross-border inheritance always, potentially, presents difficulties. Countries can have different laws when it comes to inheritance – whose law should apply?

The solution

Last year, the European Parliament and European Council agreed to apply one law to a deceased person’s entire estate. This law would apply irrespective of how many countries the deceased had properties in.

However, a resident in Spain who is not a Spanish national could still have a choice about whether they wanted their own national law or Spain’s to apply.

The law itself reads as follows:

EU citizens habitually residing in Spain will be subject to the Spanish succession law, despite their nationality, unless they specifically state in their will the wish for the succession law of their country of origin applied.

In other words, if a will does not exist and/ or there is no written mention in your will that you want the law of your nationality to apply, the inheritance process will automatically be carried out under Spanish law. Although Spanish inheritance law does not differ from inheritance law in many other countries, it is significantly different to that of the UK.

UK inheritance law Spanish inheritance law
UK law allows a person to dispose of their estate and their possessions as they want. It is completely acceptable to leave all your worldly goods to your spouse, children, next door neighbour or even to charity. Spanish law dictates that certain parts of the estate must be left to particular relatives when someone dies. These are known as ‘legal beneficiaries’ and include spouse and children. Only one third of the estate can be disposed of according to the deceased’s actual wishes.

It can be confusing for those who have UK nationality because the Spanish inheritance laws are so different. Many people from the UK assume that when they die their property will automatically go to their spouse if they do not leave a will. This will not happen if you are resident in Spain unless you have specified in your will that you want British inheritance law to apply.

We recommend that anyone who does not want Spanish inheritance law to apply in their case has a new will drawn up that includes the new stipulation. It is easier anyway for the probate to go through if there is a Spanish will in place.

At Ábaco, we can help and advise you on issues to do with Spanish inheritance and making a Spanish will. For more information contact our legal department by email legaldpt@abacoadvisers.com.

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