AS of August 17th, EU residents are able to choose whether the law applicable to their succession will be that of the country of residence or that of their nationality.
This has important implications for habitual residents of Spain where, owing to century-old laws, children have an automatic entitlement to two thirds of the estate.
According to Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, this choice […] shall be made expressly in a declaration in the form of a disposition of property (will or codicil), or shall be demonstrated by the terms of such a disposition.
In essence, the regulation recognises that the choice of law can be made expressly or impliedly.
To avoid uncertainty, habitual residents of Spain who already have a will (Spanish or foreign) need to check if it contains a term or terms that indicates that the national law, sometimes described as personal law, will apply to the inheritance.
Most wills I have come across do state this when noting that the testator’s wishes are in accordance to his or her national/personal law, which in my opinion – and that of most lawyers – suffices and therefore, a new will is not required.
Where there is no provision to the effect in a will and the testator wishes to avoid the application of Spanish succession laws, we recommend drafting a new will introducing a clause of choice of applicable law.
For the avoidance of doubt it is important to stress that the regulation does not deal with taxes as these are – unavoidably – to be paid in Spain in respect to […] assets located in or rights that are fulfilled or exercised in Spain, irrespective of whether the testator is a resident of Spain or not.
Finally, the regulation introduces a European Certificate of Succession to avoid lengthy, complex and expensive legal procedures where a foreign will is to be enforced in a member state.
Note: please be advised that the UK and Ireland are not taking part in this Regulation and are not bound by it or subject to its application. Therefore, the European Certificate of Succession will not be issued in these member states.
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