New law for Spanish wills, but are you fully covered?

Local 14THE European Union has introduced a new Regulation 650/2012, which came into force on 17th August and applies to the Wills and succession of any individual who dies after that date.

This new law was introduced to harmonise the administration of Wills of European citizens.

Its primary purpose is to avoid a situation in which different, and potentially-conflicting, laws are applied to an individual’s Will(s) in different European countries,where he or she might hold assets.

When a foreigner made a Will in Spain, prior to the new legislation, the authorities would not actually apply Spanish law upon death.

Instead, they would adopt the law of the individual’s relevant country of nationality (England, Scotland, Ireland, etc), as required by Article 9 of the Spanish Civil Code.

So what has now changed? In a nutshell, individuals are now required to expressly state in all their Wills that they wish for their law of nationality to apply.

If they fail to do so, then any Wills they leave in any European Union country must be administered under the law of the country in which the individual was habitually resident at the date of death.

For example, if an individual is English and leaves separate Wills governing his assets in England and in Spain, and if those Wills do not specify which country’s laws are to apply, then the question will be where the individual was habitually resident at the date of death.

Should that be in England, then English law must be applied. However, if the individual was resident in Spain, then Spanish law must apply.

For people who spend considerable time in Spain, or who envisage spending more time there in the future, this could have serious implications for their Will(s).

If Spanish law ends up being applied, this can have a rather unexpected outcome, namely that the assets of the deceased must be divided between certain family members in fixed shares.

Such rules of division also over-ride anything to the contrary written in the Will. In most cases, it is impossible to circumvent those rules.

For certainty and peace of mind, foreigners resident in Spain, or who spend considerable time there, are strongly advised to review or update their Wills now.

That will ensure that their assets are be left in accordance with their wishes, and not in accordance with fixed government rules.

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Posted by on Sep 18 2015. Filed under Legal Matters. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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