Wills and inheritance with the EU Regulation 650/2012
When you relocated to Spain, you were thinking about enjoying the good weather, tasting the great food and excellent spanish wine. Once you have settled, it is time to start organizing your assets and make sure what you have achieved through the course of your life is protected and destined to your selected heirs.
Unlike the England & Wales law according to which everyone has the freedom to dispose of their estate as they wish, the Spanish Succession regulation, states that 2/3 of the inheritance should go to the descendants of the deceased and only 1/3 of the assets and property can be of free disposition to the testator or testatrix.
It is then advisable to make a will in the country where you have assets or property, thus, if you have either assets or properties in Spain, you should make a spanish will.
Having a last will simplifies the Spanish Inheritance Process, and if correctly drawn by an expert lawyer, the spanish inheritance tax can be minimized.
Thanks to the new EU Regulation nº 650/2012, which is already in force, the testator can select their national Law (i.e: the law of England & Wales) to be applied to their inheritance in Spain. This will reduce the possibility of your spanish will to be contested.
The spanish will must be drawn according to your national law and with the formalities of the Spanish Civil Code as well as the EU regulations.
This choice of law recognized in article 22 of the regulation, opens a new window of opportunities to foreigners with property and assets in the EU, as it provides that a person may choose the law of their nationality as the law to govern their inheritance process as a whole. However, the choice of law, must be done expressly in written as established in article 22.2.
This new regulation will be applied even to nationals from countries that have not ratified it, such as Ireland, Denmark and the UK.
The regulation states that the law applicable to the succession is in principle that of the country where the deceased's had its habitual residence. Unless the testator had opted at the time of making a will as applicable law the one of their nationality in accordance to article 22.
There lies the importance of making a spanish will, expressing your choice of law. Let´s analyze Mr. Smith case, who left in his will everything to his wife, according to these regulations already in force, if the last will says nothing about the applicable law, and Mr. Smith dies while residing in Spain, his succession will be governed by the Spanish law, and therefore, his descendants will be legal heirs and will be entitled to two thirds of the inheritance, opening the door to a will contest or a problematic succession process, as it is contrary to the rights of the legal heirs.
The Regulation applies to the succession of people who die after August 17, 2015. Or if the deceased had chosen before that date, the law applicable to his succession, that election shall be valid if done according to the regulation or the rules of private international law in force and applicable to the case.
Therefore, if you are English, and want to make a will and apply your national law to the inheritance, leaving your property to your wife, with the approval of Regulation 650/2012, you should review your will, making clear its choice of law applicable to the inheritance and clearly establish your place of residence, in order to protect your estate and will, whether you die before or after August 17, 2015.