Is it necessary for a Non-Resident to provide a testament in Spain?
EUROPEAN REGULATIONS FOR INTERNATIONAL SUCCESSIONS.
“Regulation No. 650/2012 of the European Parliament and of the Council that regulates, inter alia, the international mortis causa successions.”
1. INTRODUCTION. –
1.1) On August 17, 2015, Regulation No. 650/2012 of the European Parliament and of the Council began to be applied, regulating, among other issues, international mortis causa successions.
As stated in its “Statement of Reasons”, this Regulation aims to ensure the free movement of people by eliminating obstacles to the planning of their succession, and this way consolidating the principles of freedom, security and justice of the European Union.
1.2) It is evident the different way of regulating the “succession mortis causa” that exists among the different Member States of the European Union (what is known as “Material Law”). In fact it is a subject that the European Union cannot enter to rule, being an exclusive competence of each State.
For example: in England and Wales the “principle of freedom to make a will” applies, albeit with some peculiarities with respect to the spouse or children excluded from the inheritance and with economic dependence on the deceased.
In Spain, however, there are “restrictions” to the freedom to make a will, through the so-called system of reserved portions, which requires the testator to reserve part of the inheritance to certain heirs.
1.3) But the real problem in this matter arises with the disparity of the “norms of conflict” that in the matter of successions establish the different Member States of the European Union (what is known as the “Conflict Law”), that is: What law is applicable to the succession mortis causa?
2) SITUATION FROM AUGUST 17, 2015. APPLICATION OF REGULATION 650 / 2012.-
2.1) Since August 17, 2015, which is when Regulation 650/2012 began to be applicable, the “principle of unity of the succession” is established, that is, the succession mortis causa will always apply the same Law, regardless of the nature of the goods and the place where they are located, and unifying the different rules of conflict that in matters of succession establish the different States, as stated in Article 23 of the Regulation.
2.2) According to article 21.1 of said Regulation, which establishes “the general rule”, the succession mortis causa will apply the Law of the last habitual residence residence of the deceased, that is, regardless of their nationality.
The problem arises with the determination of the concept “habitual residence”, which may be contrary to legal security, since this does not coincide with the “fiscal residence” or the “census”, although these facts may serve as evidence for its determination.
The Regulation does not establish what is considered “habitual residence”, on the contrary, the Considering paragraph 23 establishes, for the purposes of its determination, that the authority that knows of the succession, will proceed to a general evaluation of the circumstances of the life of the deceased during the years prior to the death and at the time of death, taking into account the duration and regularity of the presence in the State, as well as the conditions and reasons for his or her presence in the State, in order to reveal a close and stable link with the State in which said person resided.
We understand that, for these purposes, the following circumstances or facts may be considered relevant: to have a home in that State; to have the tax residence in it; to be registered; to be working in said country; to have the children studying in a School form that State, etc …, It could be relevant as evidence, to grant a Notarial Act of notoriety or Notarial Certificate with witnesses, to prove this link with the State of residence.
2.3) This general rule has an “exception” in section 2, according to which the Law of the last habitual residence will not be applied, when the deceased, at the time of his death, maintained manifestly closer links with another country, different from his habitual residence.
Example: a German national who moves to Spain for work reasons, this being his habitual residence, and who dies in Spain, but maintains his links with Germany, where he has his family, his assets, etc …, in such case it would be applicable the German Law, instead of the Spanish Law.
2.4.) Finally, this general rule regarding the application of the Law of the last habitual residence of the deceased, can be avoided by the deceased, through the exercise of what is called the “professio iuris” or election of the law applicable to his succession, which is provided for in article 22 of the Regulation. According to which, any person may designate that the law of succession of the State whose nationality he or she possesses at the time of the election or at the time of his or her death is the one applicable to his or her succession at his or her death.
Even if you have several nationalities, you can choose one of them.
Said choice must be made expressly by a disposition mortis causa or must result from a provision of this type. Therefore, to be applicable the Law of the nationality of the deceased to the inheritance, it is necessary that this has been expressed in a will or similar provision.
2.5) For example, this is especially important to the British citizens with real estate in Spain, because if they want to apply to their inheritance the English Law, which governs the principle of freedom to grant a will, instead of the Spanish Law, which governs the “sistema de legítimas” (reserved portions system) which is more restrictive, it is convenient to grant a will where that choice is expressly arranged, thus avoiding future problems on the applicable law, as well as speeding up and greatly ease the procedures for the future adjudication and processing of the inheritance.
The same can be said for those foreigners whose National Law regulates the right of succession in a manner more consistent or related to the freedom to make a will, instead of the system of reserved portions of the Spanish Law. They are also recommended to grant a will. That way it can be expressly stated the election of his national Law, so that this one governs the future inheritance.
We consider very convenient the granting of a will for all those foreigners who own real estate in Spain, where they can ask the application of their national law to their inheritance, to avoid the possible application of the Spanish Law, if they have their habitual residence in Spain, where the “reserved portions system” should be respected. In any case, the registration in the census of a Spanish municipality does not influence or prejudice the provisions of the will of the testator, nor his willingness to apply his national law to his inheritance, when the time comes.
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