In most cases, when a person dies, the succession is arranged according to the wishes expressed by the deceased in their will. That is, the will determines how the assets are distributed. However, a will does not always exist. And the situation becomes more complex when the deceased owned assets in different countries or resided abroad at the time of death. This raises a key question: how is arranged an inheritance without a will?
Testate succession: the deceased made a will before passing away.
In inheritance law, we distinguish between two main types of succession: testate and intestate.
.- Testate succession: there is a will, whether granted in our country or abroad. In Spain, wills are registered in the General Register of Last Wills. This allows verification of which is the last valid will made by an individual. There may also be a will granted abroad. To be recognised and valid in Spain, such Will must be duly apostilled and translated.
It should be remembered that if there are multiple wills, the last validly made will always prevails.
.- Intestate succession: there is no will. In this case, it is necessary to determine who the heirs are and in what proportions they inherit. But how is this decided?
Intestate succession: total or partial absence of a will.
It may also occur that a person never makes a will, neither in Spain nor in their country of origin. In such cases, we speak of an intestate inheritance.
However, partially intestate succession is also frequent. For example, a British citizen may grant a Will in the United Kingdom only to govern their assets there. That is, expressly leaving out their property in Spain, with the intention of later making a specific Will for those assets. If this second Will is never formalised, we are faced with a succession that is testate in the United Kingdom but intestate in Spain.
Who decides how the inheritance is distributed when there is no will?.
Applicable law in intestate succession: European Regulation 650/2012.
European Regulation 650/2012 provides the answer to this question. When a person dies without a Will, succession is governed by the law of the deceased’s habitual residence at the time of death.
That is, if the deceased’s habitual residence at the time of death was in Spain, the heirs will be determined according to the Spanish Civil Code. Conversely, if the deceased was habitually resident in another country (for instance, the United Kingdom), the law of that country will determine who inherits and in what proportions. This has very significant consequences, as each legal system has different rules.
In cases where the law of another country applies, it is necessary to prove its content through a certificate of law issued by a competent authority of that country. For example, a Notary Public, the Spanish Consulate in that country, or any other recognised authority, duly apostilled and translated.
Conclusions.
Inheritance without a will can pose additional legal challenges. This is particularly true when the inheritance has an international component. At White-Baos Lawyers, we are experts in Private International Law and cross-border inheritances. Do not hesitate to contact us for expert legal advice on this and other matters.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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