A Will is the act by which a person disposes of all or part of his or her assets after his or her death. A foreigner who resides in Spain, or who owns property in Spain, can make a Will before a Spanish authority (Spanish Notary or Spanish Consul). However, although a foreigner can choose to make a Will in Spain and be governed by Spanish law, he/she can also, if he/she wishes, do so under his/her national law.
We will now go on to resolve a series of questions in the event that the interested party is a foreigner, whether resident or not, in order to grant a Will in Spain.
So… What do we need to make a Will in Spain?
The person who wishes to make a Will must have the legal capacity and a valid NIE, with which the person can go to the Notary or to other competent Spanish authority. Thereby, the Will will be drawn up and signed personally by the testator and the notary. Nowadays it is not necessary the presence of other personas or witnesses, except in exceptional cases.
It is essential in this moment to determine which applicable law we want to govern our Will, whether we want it to be our national law or the law of the country of our habitual residence, since if we don’t express mention, it will be applied the law of the country of our last residence.
The regulations are quite flexible. As a result, the Will must be adapted to the formalities of the law of the country in which it was made or to those of the state of the testator’s nationality. In other words, a Finnish person residing in Spain can make a Will in accordance with Finnish or Spanish law. A Will that complies with the law of the state where the testator’s property is located could also be valid if it is immovable property.
What is the current regulatory framework for succession at European level?
On 17 August 2015, EU Regulation 650/2012 of 4 July, known by the abbreviated name of the European Regulation on Succession (RES), came into force and effect and is of great practical importance, as it has radically changed the application of international law in the field of succession. The Regulation has been adopted by all Member States except the United Kingdom, Denmark and Ireland, which for these purposes are considered third States.
Which law applies in matters of succession?
As a general rule, the law of the country in which the foreign has his/her habitual residence is the one that is applies to the succession (art. 21 RES). However, there are exceptions in the Regulation, so that if the foreigner wishes to make his will under the law of his own country, he may do without any problem (art. 22 RES).
It is relevant to has or not habitual residence in Spain?
The place of the deceased’s last residence is key. The law of the country of last residence will determine the succession of the deceased, as a general rule, unless the deceased has expressly chosen to have his or her national law applied.
Furthermore, the regulation also affects Spanish nationals residing abroad. So, for example, if a Spanish national habitually resides in Finland, the law applicable to his or her inheritance would be the Finnish law.
As a practical example, what would happen if, for example, a Finnish national died in Spain?
In principle, the regulation applies in Spain regardless of whether the deceased is a national of another Member State. However, if the Finnish citizen has made us of this right of choice and has clearly and expressly chosen in his Will that the law applicable to his succession is the law of his nationality, Finnish law will be applied exclusively, without the possibility to refer to Spanish law (art. 34.2 of the regulation excludes referral when the deceased exercises his right of choice).
Therefore, if a Finnish person dies having his habitual residence in Spain, and has not made a Will choosing Finnish law as the applicable law, Spanish law will apply to him as Spain is his last residence. However, if the Finnish person’s last residence was in Finland and he dies in Spain, two questions must be clarified:
– If he/she has no real estate assets in Spain, Finnish law will be applied.
– If he/she has real estate in Spain, Spanish law will be applied. This is because, according to the Regulation, two laws cannot be applied to the inheritance. Article 23 of the Regulation provides that the law applicable to the succession must govern the entire succession. Article 34 of the same Regulation establishes the principle of universality, which means that movable and immovable succession cannot be treated differently, but that the law must be the same for all the assets of the inheritance, to avoid having rules from different countries to be applied to the same inheritance.
What happens if I have already made a Will in my country of birth and I want to make another one in Spain? Can I make a double Will?
By double will we refer to the fact of making two wills under two different laws, one Will under Spanish law and another under the law of the foreigner’s country of nationality. Under Spanish law, only the last will is valid and a later Will annuls the previous one. Therefore, a double Will is not possible. In order to prove that there is no previous Will, the Spanish authorities will ask for a certificate that no Will has been granted after the Spanish one in the country of residence, nor in the country of nationality of the grantor.
Given the complexity of this issue, it is common to feel a little confused as to what procedures need to be carried out and what regulations will be applied, or what law it would be advisable to apply. At Boleo Legal we are more than capable of guiding and advising you through this difficult process. Do not hesitate to contact us, we can resolve any questions you may have by telephone or e-mail.
Paula Turunen (Colaboradora)