British clients who had just purchased a Spanish property were interested to know if it was necessary or even advisable to draft special Spanish Wills for Expats, now that they had assets in Spain. They did not know if at some time in the future they were likely to become resident in Spain.
Since the 17th of August 2015, European Regulation 650/2012 is the legislation that governs and determines the law of succession of which country should be applied when considering a cross-border inheritance.
In Spain, until now, the general legal rule has been that the national law of the person whose estate is to be inherited (ie the deceased), is the law that should be applied. On this basis, the British national, regardless of her place of residence, would have British law applied.
The new European regulation marks a complete transformation of the rules applied to those persons who pass away from the 17th of August, 2015 because now the law to be applied shall be that of the country in which the deceased was resident at the time of death.
This is the rule unless it is clear that the deceased maintained closer ties to a different country from that state whose laws would otherwise apply – or, alternatively that the testator has expressly specified in a legal last Will and Testament that the law to be applied is not the law of her residence, but that of her nationality.
As a result, give that the Spanish law of succession applies a system of ‘forced heirs’ that reduces dramatically the scope of any choice with regard to who should inherit ones assets, and since the clients are British and have free disposition with which to allocate assets upon death, it would be recommended to draft Spanish Wills that include a specification that the law of the testator’s nationality should apply, in the event that they should become resident in Spain at some time in the future.