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Choice of National Law

Countries have different inheritance rules. Which law is applicable in a Succession in Spain?

We all want to establish whether our existing will can deliver our wishes when we pass away, making the correct arrangements to make sure that those we care for do not have problems with the succession of our property in Spain. 

A major step to facilitate cross-border successions was the adoption on 4 July 2012 of European Union rules which will make it easier for citizens to handle the legal side of an international succession. These rules apply to the succession of persons who die on or after 17 August 2015. Denmark, Ireland and the United Kingdom do not participate in the Regulation.

The (Eu) No 650/2012, Uniform Rules Of Regulation  on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions, Acceptance and Enforcement of Authentic Instruments in Matters of Succession, and the Creation of a European Certificate of Succession makes sure that:

• a given succession is treated coherently, by one single court applying one single law;
• citizens can choose whether the law applicable to their succession should be that of their last habitual residence or that of their nationality;
• avoids parallel proceedings and conflicting judicial decisions;
• decisions relating to successions given in one EU country are recognised and enforced in other EU countries.

Property Legal Research

However, the initiative in no way alters the substantive national rules on successions.
The following issues continue to be governed by national rules:
• who is to inherit and what share of the estate goes to children and spouse;
• property law and family law in an EU country;
• tax issues related to the succession assets.

The Regulation also creates a European Certificate of Succession to enable heirs, legatees, executors of wills and administrators of the estate to prove their status and exercise their rights or powers in other EU countries. Once issued, the ECS is acknowledged in all EU countries without any special procedure being required.

As Denmark, Ireland and the United Kingdom do not participate in the Regulation, succession procedures handled by the authorities of these three EU countries will continue to be governed by their national rules.

The Regulation on cross-border successions represents a considerable improvement compared to the past where people often had difficulty exercising their rights. The Regulation results in faster, easier and cheaper procedures.

The question: This new regulation has raised many questions about the validity of existing Spanish wills covering property in Spain for those who are resident here.

A resident in Spain, who is not a Spanish national, still decide whether they want their national law or Spanish law to apply.
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. This means that in intestate successions or a testate one, but with no mention in the will that you want the national law to apply, the inheritance process will run under Spanish rules, and these differ significantly to British ones.

It can be confusing for British nationals because the Spanish inheritance rule differs so much. Many assume that when they pass away their property will be transferred directly to their spouse if they do not leave a will. if you are resident in Spain, this may not be the case unless you have inserted a special clause in your last will establishing that you want British Succession law to be applied.

Under British inheritance law, you are allowed to dispose of your estate and your possessions as you want. It is completely acceptable to leave all your assets to charity, a friend, to your spouse, or any of your children.
Under Spanish inheritance law, certain parts of the estate must be left to particular relatives when someone dies. These are the ‘legal beneficiaries’ and include spouse and children. It means, in the end, that the testator decides with total freedom only one-third of the estate.


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