Juan Ramón Correas [Lawyer]
The answer to this question is yes, indeed, very important. Even more after the new regulation approved by the Authorities of the European Union (*) has come to light. This regulation basically establishes that unless the testator has clearly manifested in his Will that he chooses his own national Law to rule his estate, the Law applicable would be the Law of his last residency. This is fully applicable since 17 August 2015 (it is to say, if a person died on or after this date, the regulation is fully applicable); consequently it is very advisable to start thinking about granting a Will correctly, and have the peace of mind of having this issue sorted out.
As a result of the mentioned regulation, any British citizen officially residing in Spain who has not chosen his own national Law to rule his estate could suffer the consequences: his estate would be ruled by the Law of his residency, it is to say, Spanish Law. As you might know, under Spanish Law a huge part of the assets of the testator must go to his children (around 66%, depending on each case); as we know from experience, most of British couples (married or not) traditionally leave everything to each other, and only on second death the children would inherit. That would not be possible under Spanish Law.
What should you do to avoid Spanish Law being applicable to rule your estate? It is very easy: make sure that you make a Will in Spain specifically choosing your own national Law to rule your estate. The phrase “The testator specifically wants his own national Law to rule his estate” or a similar one, with the same sense, should be included in your Will. Don’t forget that in order to be sure that the Will is valid and directly applicable, it should be granted in front of a Public Notary. Of course, your solicitor could help you out with writing down the correct wording and focusing your particular situation, depending on your circumstances.
We hope that the previous information is helpful, but please do not hesitate to contact us with any question or comments.
(*) REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, of 4 July 2012, on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European
Certificate of Succession