The European Parliament’s proposal on international Inheritance. The applicable law. The need for citizens from countries with freedom to testate: UK, Ireland, etc. to review their Last Spanish Wills Contesting a Will.
According to the press service of the European Parliament a legislative proposal was approved on 13-03-2012 with the intention to avoid legal disputes and simplify inheritance when dealing with cross border issues. In fact according to the European Union around 450 thousand inheritances containing an international element are managed every year.
The European Succession Certificate is introduced (though not mandatory) to protect the rights of the heirs, reduce costs and accelerate procedures.
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But the most remarkable fact about this future legislation is the criteria that will be applied to determine the law applicable to each Inheritance and Succession, that as per our previous articles is:
1.- The applicable Law for the succession will be the Law of the deceased’s habitual residence at the time of death and therefore, the inheritance and processing (probate) will depend on the succession Law of that country
2.- But when making a Will you can opt either for the Law of the country of habitual residence (which is likely to be the applicable Law) or for the law of your country of origin.
This rule will not apply to the UK, Ireland or Denmark
This future law already approved by the EU Parliament now needs to be approved by the EU Council in order to be applicable and in force.
Mentioned also in previous articles this new regulation will affect millions of European citizens.
How can this affect you?
Let’s take a common case of an English citizen permanently living in Spain with no Will or with a Will drafted in order to leave everything to his wife, substituted by the children.
When the referred regulation is approved, this could mean that unless the Will specifically states that this inheritance should be dealt with according to the deceased’s national Law or law of the country of origin, in this case Law of England and Wales; the applicable Law would be the law of habitual residence that is Spanish Law.
Thus his wife may not be able to inherit since according to the Law of Spain at least 2/3 of the deceased’s assets must go to his legitimate forced heirs, the children, and not to his wife.
Therefore, should this be your case then please review your Will to make sure you specifically stated your wish to have your inheritance dealt with according to your national Law and thus have the freedom to leave your assets as you wish. If this is not stated in your Spanish Will we understand that it could be contested.
If you would like your wife, husband, partner etc. to be the beneficiary of your Spanish inheritance then please let us draft or revise your Will and we will be more than pleased to advice you accordingly.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
By Carlos Baos (Lawyer)