Imminent Enactment of New EU Succession Laws
With effect from the 17th of August 2015, a new EU law will automatically apply –replacing local laws- to the succession of persons who die on or after the same date in countries parties to the agreement. While the main concepts of this new law may seem simple, the name given to it is truly mind-boggling:
Regulation (EU) No 650/2012 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.
But let’s not get carried away by all the legalese and go straight to the most relevant points of the law; and by doing so perhaps we can kill the expat rumour mill before it causes havoc.
The main change introduced relates to the applicable law to succession: As of August 17th, citizens are able to choose whether the law applicable to their succession will be that of their habitual residence or that of their nationality, on the understanding the former law will apply by default if there is no choice. This has important implications in Spain where, owing to century-old laws, children have an automatic entitlement to two thirds of the estate.
This choice shall be made expressly in a declaration in the form of a disposition of property (will or codicil), or shall be demonstrated by the terms of such a disposition.
People who already have a will need to check if it contains a term or terms that indicates that the national law, sometimes described as personal law, will apply. Most wills I have come across do state this when noting that the testator’s wishes are in accordance to his or her national law, which in my opinion suffices.
Where there is no provision to the effect in a will and the testator wishes to avoid the application of Spanish succession laws, we recommend drafting a new will.
Finally, we still recommend property owners to have a Spanish will as well as one in the country(ies) where they own assets, at least until we can experience how easy -or not- will it be enforce wills in other EU states. This applies in particular to the United Kingdom and Ireland since neither country is bound or subject to the application of this Regulation.