SPANISH WILLS FOR EX-PATS : THE EUROPEAN DIRECTIVE 650/2012 (ALSO KNOWN AS BRUSSELS IV IS IN FORCE SINCE 17/8/2015 .)
VERY IMPORTANT: BREXIT DOES NOT AFFECT THIS IN ANY WAY BECAUSE SPAIN WILL APPLY THE DIRECTIVE REGARDLESS OF RECIPROCITY (THE U.K. HAD NOT RATIFIED THE DIRECTIVE IN ANY CASE)
Many English ex-pats will need to change their wills due to new legislation approved by the European Union.
( E.U. Directive 650/2012 that came into force last year (2015) makes it essential for residents with children to specifically say on their will that they choose English law to determine how they can distribute their estate)
If this is not done Spanish law will be applicable and this will not allow spouses to leave the estate to each other, as under Spanish law they would have to leave 2/3rds to their children directly. This E.U. Directive because of it´s important consequences gave people 3 years to adapt their Spanish wills but this was over on the 17th of August of 2015.
There are still wills that have not been adapted and the can be a disaster for the surviving spouse . If you have not taken care of this you need to do it immediately.
The bottom line is that since the 17th of August of 2015 , if you reside in Spain you need to make sure you have stated on your will that you wish English law to govern your inheritance, otherwise 2/3 of your estate will probably go to your children and not your spouse.
Further explanation below:
Question: Why is my solicitor telling me that I need to revise my Spanish will ? Is he just trying to take my money ?
Answer: This directive of the EU 650/2012 deals with different things, but the reason English citizens need to look at their will is what the directive says in it´s articles 21 and 22 . Please note that the directive was approved in 2012 but only comes into force on the 17th of August of this year . (in other words it has provided 3 years to have wills updated because of it´s importance).
- Article 21 of the Directive:
“Unless otherwise provided for in this Regulation,the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death.”
This is very important for English people living in Spain, because under Spanish law (which has a system of obligatory heirs similar to the ones in France and Italy ) you cannot leave everything to your wife, as 2/3 of the estate have to be left to children (with a life possession being granted to the wife over half of the 2/3rds granted to the children , which the surviving spouse can demand be exchanged for an upfront payment if he/she is not the mother of the children with which she is competing for the estate ) . In other words if you are resident of Spain, have children and do not establish on your will that you wish English Law (your national law ) is to rule your inheritance your Spouse will not be allowed to receive his/her inheritance as it would contradict the Spanish rules of obligatory heirs which would be applicable automatically because of the new directive. The solution is provided in it´s next article.
- Article 22 of the Directive:
“A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death.”
This basically means that you can override the obligatory application of Spanish law (determined by residency explained above ) by simply stating in your will that your wish for your estate to be governed by English law. How do you achieve this. Simply sign a new will with this statement.
In other words the Directive made it very easy to avoid Spanish Law being applicable so there is no excuse.
Consequences:
If you have children but have made a will leaving all assets to your spouse, make sure that you have clearly stated on your will that you wish your national law (English law) to govern your succession before the 17th of August. If you have not we recommend you deal with this as soon as possible.
The article does not change the situation regarding the convenience of having a Spanish will to deal with your Spanish assets .We strongly recommend that you always have a Spanish will . For further info, please read : Do I need a Spanish will? or 7 things ex-pats need to know about Spanish wills.
For information on how we can help you please call 950 472775 or e-mail [email protected]
Other useful links about the directive and wills in general:
- Full text of the directive in English. (the important part is in articles 21 and 22 which are on page 120 of the document)
- Marbella :10 steps, timescale and cost for us to prepare your wills in Marbella.
- Mojacar : 6 steps , timescale and cost for us to prepare your wills in Mojacar.
- Davies Abogados will and estate planning page.
