THE ADVANTAGES OF HAVING SPANISH WILL AS A FOREIGN CITIZEN PERSUANT THE EUROPEAN INHERITANCE RULE EC 650/2012
The last will and testament, as a document which regulates the inheritance process of one person at the time of his death, is always advisable:
- It allows the testator to express his will by appointing the person/s to whom his assets shall be transferred adapting the will to the familiar and personal circumstances of each moment.
- It allows the identification of the nearest relatives (spouse, partner, parents and children) by their names and surnames confirming the familiar relationship with the testator and avoiding any obligation of proving this again in the future.
- It allows the imposition of specific obligations to the heirs or a specific use to one of the asset or assets.
Now, after the publication of the EC Regulation 650/2012 the following considerations are added:
- The possibility of exercising the right to select the law applicable on the inheritance process, among those given by the said Regulation.
This last consideration is, if anything, the most important, because SOME LIMITATIONS on the freedom to express the will were imposed on the testator by the law governing the inheritance process.
A) THE UTIILTY OF LEAVING A SPANISH WILL AS A FOREIGNER
In the case of a national of a foreign country who is in Spain (regardless being resident or not):
1st. .- If the national owns assets and rights in various countries it is advisable the signing of a specific will in the countries where these assets are located, making sure that each will refers only to the assets of the respective country and that the co-existence of all them is expressly validated.
Every country has its own inheritance law. If there is only one will that covers all the assets of a testator in different countries, that will shall be adapted to the formalities required by the authorities of each country. The process of validating that will in each country involves not only the associated translation costs but also the legalization “and apostille” costs. Those expenses would be always higher than the costs of granting a separate will in each country.
2nd.- If the national owns assets in one country only, the granting of a specific will for that case would be sufficient.
B) THE RIGHT TO CHOOSE THE LAW TO BE APPLIED IN AN INHERITANCE PROCESS
The European Inheritance Rule 650/2012 has been ratified by Spain so it is fully in force for assets located in this country and its application is mandatory for notaries and Spanish authorities, even if the deceased is a national of a non-EU country or a country which has not ratified the rule (United Kingdom).
What happens if:
1.- The testator has not exercised the right to choose the law that shall be applied after his death.
- In accordance with the Spanish Civil Code if the testator has passed away before the 17th of August 2015 the law to be applied is that of the nationality held by the testator at the time of his death. This referral to a foreign law is applicable to the entire law, meaning that, it could happen, as in British law and in a majority of Scandinavian countries, that the law to be applied in the end is that of the country where the assets are located (Spanish law again). This legal figure is known in Spanish as “reenvío”. In Spanish law the “reenvío” is not admitted when the testator has assets in another country and these are subject to a different inheritance law. The multiplicity of laws is not applicable.
- In accordance with article 21 of European Inheritance Rule 650/2012 if the decease occurs after August the 17th 2015, the law to be applied would be that of the country where the testator had his main residence at the time of his decease. EXCEPTIONALLY, if it could be undoubtedly proved that the testator was closely bound to another country rather than the one of his main residency, the law of that other country shall be applied.
It would be of great importance to prove a) the main residence of the testator at the time of his decease, and b) the existence of a tight connection with another country.
2.- The testator exercises the right to choose the law that shall be applied after his death.
In accordance with article 22 of the new rule:
1. The testator has the right to choose between the law of his nationality at the time of signing the will or that of the nationality held at the time of his decease. A person holding multiple nationalities has the right to choose among all of his nationalities the law to be applied.
2. The choice shall be expressly made in the form of a last will and testament disposition or shall result from the terms of a provision of that kind and in accordance with the law of the country.
3. Any modification or revocation of the choice of the law to be applied shall be processed according to the relevant legal formalities.
The choice, therefore, can only be made in favour of a) the nationality of the testator at the time of making a will or b) the nationality held by the testator at the time of the decease.
The above explained “reenvío” is not applicable when the testator has expressly declared in which law that shall be applied on his inheritance.
