On the 4th of July 2012 the regulation 650/2012 of the European Union was approved to try to unify the European legislation on successions which came into force in Spain on the 17th of August 2015 and will be applied to any succession which takes place since that date.
Who will be affected by the regulation?
The regulation will be applied to successions which occur in countries of the European Union or to EU citizens. It will not be applicable in Denmark, and Ireland, however it can affect citizens from these countries that reside normally in another member state.
What are the Main Contents?
The new regulation establishes as general rule that the law applicable to a succession is the law of the country where the deceased had his last permanent address at the time of the death.
However, the regulation expressly allows that one can choose that the law to be applied to his succession is his/her personal law, i.e. that of the country of his nationality having to expressly state this in a Will.
How can this affect you?
If you reside and live in the country of your nationality this regulation will not affect you at all as the law applicable to the succession will be your national law, and any provisions made by way of Will in your country will have taken into account the legislation applicable and there will be no contradiction.
However, if you decide to change your residence to another country of the UE this regulation may be of importance to you, as the succession law of this country would be applicable to your inheritance and you would have to find out if the internal regulations are in contradiction with the terms of your last Will.
If we take for example the case of a national of a country of the UE with descendants who resides in Spain and who in his Will has stated that he wishes to leave everything to his partner/spouse, this being possible according to his national law as he has freedom to dispose of his assets we have the following situation:
The UE Regulation will be applicable to him because he is resident in Spain, country which is bound by the new UE regulation.
Formerly, before the UE Regulation came into force, the law applicable to the inheritance was his national Law, as it was irrelevant of the place where he was residing at the time of the death and his Last Will would have been completely respected and any Spanish assets passed to his partner/spouse.
Nowadays however, if the death occurs when he is residing in Spain and thus the law applicable to his inheritance Spanish law, his wishes expressed in the Will will not be fully respected, as in Spain 2/3 of the assets will go compulsory to certain heirs which in this case would be his children, his wife would be entitled to the life interest of 1/3 of the 2/3 belonging to his children and he can only dispose freely of 1/3 of the assets which would go to his wife or partner as per his wish.
However, he can avoid that this happens if he expressly states in his Will that in any circumstances he wishes that his future succession is governed by the law of his nationality. In this case there will be no contradiction between the contents of the Will, the terms of which are in accordance with the provision of inheritance law in his country and the law applicable to the succession.
Why has this UE regulation simplified the succession procedure?
An European succession certificate is issued by the country that governs the succession which will enable heirs, legatees, prove their rights in the succession in another member state where assets are located to be inherited. This simplifies the procedure in case of a succession where more than one country is involved.
Why is the law important?
The heir can freely choose the law applicable to the succession which can be the personal law, i.e. the law of the nationality or the law of the country of the last permanent address of the deceased; this is an important matter to take into account when planning the succession.
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Rafael Berdaguer
Lawyer within the firm
Rafael Berdaguer Abogados based in Marbella, Spain.
www.berdaguerabogados.com
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