THE INHERITANCE IN SPAIN:
THE NEW EUROPEAN INHERITANCE RULES:
The EU Inheritance and Succession Regulation was drafted, passed and enacted by the European Parliament on the 4th July 2012, by the 650/12 EU Regulation. This new Law will come into force from the 17th August 2015 and will only be applicable in the EU States which are members of the Regulation and have signed for this purpose. Denmark, United Kingdom and Ireland are excluded, but their nationals who live or have assets in signing countries such as Spain, Portugal, France or Italy will be obliged by this Law.
Donations will not be included in these Regulations. Only Grant of Probate or Inheritance, and will establish which is the applicable Law in an International Succession when there is lack of one of the following elements: nationality, residence and location of assets of the deceased, stated in the will.
The most difficult issue to prove of the above three is the residence or “domicile”. The first way to prove this is by ones own statement as the testator who must make this clear when making and signing the Will. Another way to prove ones residence is the Padron Certificate, which is issued by the Local Council through the Local Census department.
An important matter of this law is section 34 which regulates the law forwarding system. In Spain, law forwarding is ruled under section 12 of the Civil Code and there are also several Supreme Court Resolutions, such as the important one issued on 23 September 2002, which stated that when there is no Will or Testament, there is only one applicable law for the inheritance when all the assets or property are in Spain, if this is not the case, the applicable law would be the one that the deceased person nationality before passing away.
Section 34 recommends to make a Will to avoid any hassle when establishing the International Law conflict, declaring expressly that the testator wishes that the Law for his/her Succession will be his/her national Law.
Section 22 states that despite the deceased having made a Will, for example in Spain, is highly advisable to provide a succession title from the country in which the person has deceased, such as Grant Of Probate for the UK, or Erbsche Germany, amongst others. Having provided this, we make sure that the last Will is real and effective.
Like wise, section 22 says that the testator/testatrix may choose. Although with some limitations, which law is going to be applied to the succession. He/she may choose between the national Law after passing away, or if this person has double nationality he/she might also choose one of the two different laws, or the law where he/she effectively live. The clause will look to similar to the following:
“THIRD: It is the express wish of the testator/testatrix that the applicable law for his/her Spanish estate must be the Law of his/her British/Irish/ German…..Nationality.”
The EU Succession Certificate will only be applied and issued by Court in the Town/City located at the country where the deceased passed away.
Only inheritors or the executor appointed in the Will may apply for this UE Succession Certificate, and never a bank or a creditor, however, the Certificate is not mandatory.
On the other hand, section 69 establishes a simplifying effect, which states that there will only be one document, only one Succession title, translated and apostilled/legalized, so Last Will certificate will no longer be needed in Spain, as the succession title will be enough to declare and establish the Valid Will and Legitimate Inheritors.
To sum up, from 17th August 2015, all residents and non residents with assets, properties, bank accounts located in Spain, no matter their nationality, will need to check their Wills, to make sure the Applicable Law clause is properly clarified or not. If you want to avoid more paperwork, more costs, and time wasted for your future inheritors it is suggested to make a new and definite Will/Testament before a Spanish Notary, with the help of your solicitor-lawyer .
If you want to have a look yourself into the Whole Regulation please see link provided below: