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fluffy
11-12-2010, 10:06 PM
My father recently past away leaving a fairly complicated Will with properties in Spain, however without any Spanish fluency or understand of their local laws; Mum and I are a little stuck :confused:

Now, as far as I know, both of my parents have their names on the deeds... and it's my father whom recently deceased. However I'm unsure if by default, a property is jointly owned, or held in common, which is it? :confused:

Also, considering the content of the Will, non of us are beneficiaries :(
So... who know owns the property? Does my mum still own 50%?? Or does she assume full ownership? And.. how could I possible check (we're in the UK)?

Please could someone advise?

Thanks.

lawbird
11-16-2010, 04:41 PM
Dear Sir/Madam,

When it comes to the distribution of an estate, different rules apply to Spain and the UK. Whereas in England a person can freely dispose of their assets in their will, in Spain there are certain rules applicable on the distribution that cannot be avoided. By way of an example, in Spain, 2/3 of a person's estate MUST be divided between all children of the deceased and therefore any attempt to overcome this provision would be unlawful.

So which Law applies to the distribution of your father’s Spanish assets? Well, this is a question that has been the subject of much academic debate during the last years mainly because of cases like yours where it was more convenient to the claimant that Spanish Law applied.

As per article 9.8 of the Spanish Civil Code, the succession upon death will be judged according to the personal status of the deceased at the time of death. In other words, his nationality will determine the Law applicable to the distribution of the estate. Generally speaking, if the deceased was an english national, English Law will apply to the distribution and he can therefore freely dispose of his share in these assets.

That being said, there are certain situations where Spanish Law will nevertheless apply to the distribution of a foreign national. Mainly on cases where the foreign law redirects the issue back to Spanish Law. If a case like this was to be established, any wills granted by this person in contravention of the Spanish rules would be unlawful and you could invalidate the effects of the will at Court.

Your mother holds and will hold her corresponding share in these properties. You can double check this by obtaining an official copy of the properties at the Spanish Land Registry. However, your father’s shares will be distributed in accordance with the Applicable Law and his will. Therefore, if Spanish Law were to apply to your father's case, an option would be to try and void the will should you have a legitimate case that could stand in Court.

Kind regards,