This is the question that many of the almost 5 million foreigners living in Spain ask themselves when they think about how to organise their inheritance.
Geographical mobility, marriages, and divorces between people of different nationalities and, in addition, the attraction of our country for property investors from all over the world, have made the need to regulate international inheritance a pressing one.
In August 2015, a new European Regulation came into force, whose mission is none other than to clarify which legislation should take precedence when it comes to the succession of a foreigner with property in another country. A Regulation consisting of 84 articles and 83 recitals whose very existence shows the complexity of the subject and the disparity of legislation between member states.
All EU states except Denmark, Ireland and the United Kingdom have joined this regulation, despite the numerous cessions made to Anglo-Saxon law in its drafting. These three countries are considered third party countries for these purposes.
However, the authorities of the Member States universally apply the rules contained in this Regulation, legislating in the same way for any foreigner, whether European or non-European.
Perhaps the most important new feature as far as Spain is concerned is that, under the new rules, the law of the country in which the testator resides takes precedence unless the testator indicates in his or her will that the law of his or her nationality should take precedence. This establishes what is known as “professo iuris”, which is nothing more than the possibility of choosing the applicable law.
This question is more than relevant if we bear in mind that, for example, German law recognises absolute freedom of testament, whereas French or Spanish law establishes legitimate estates, usufructs, thirds, etc., which, at the very least, impose certain rules when it comes to doing so.
Along with this novelty, the appearance of the European Certificate of Succession also stands out, which allows foreigners to accredit their status as heirs or legatees throughout the EU, without having to go through any other procedure. In the case of Spain, this certificate will be issued by judges and notaries and will undoubtedly make it easier to obtain inherited assets in a third country.
With the introduction of the new regulations, the EU manages to establish common rules to organise international successions, the task of the lawyers will be to know how to advise the client in each case to adopt the legislation that best suits the wishes of the deceased, the interests of their heirs or, simply, to show which scenario would involve the payment of lower taxes.
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