I have been advised by our solicitor that a Will raised in Spain will soon become illegal unless a certain codicil is added, due to the Government altering the law for foreigners (extranjeros). Is that correct as per Spanish Wills and Probate Law?
It is not correct to say that the old Spanish Wills granted by foreigners ( English, Irish, Scottish, American, etc.) in Spain will become illegal.
The situation it is that as per the European Regulation No 650/2012, the applicable law to the Succession / Inheritance will be the law of the country where the deceased had his/her habitual residence at the time of death. Also as per its article 22 the testator /testatrix can opt expressly at the time of making the Will or at time of Death, for his/her national Law. This Regulation, shall apply to successions of person who die on or after 17 August 2015.
To give an example, if you are English and living in Spain, and you die on or after 17/08/2015, your succession will be governed by Spanish Inheritance Law, unless you have opted for your national law. This is important, since a succession governed by Spanish Law includes forced heirs, i.e: descendents which must inherit at least 2/3 of the estate, whereas English Law does not have forced heirs and you can leave, generally, everything to whoever you want.
If you have children but on your Spanish Will you left everything to your wife, this will only be possible if English Law applies, so you need to make sure that on your Spanish Will, you opt for your national Law ( English Law).
Therefore, it is not that the Wills will become illegal, rather the wording of the Will would only be fulfilled if it is in line with the applicable law. Also that the Will could be contested.
In the case that your Will’s provisions are not possible under Spanish Law but only under your national law, we advise you to sign a new one opting for your national law, if you haven’t already done so. We also advise you sign a new Will rather than a codicil, the costs are similar, but it is better, clearer, and there will be only one document to administrate, etc.
Sometimes, it is not relevant which law applies to your Will and Inheritance. For example if you have neither children nor parents and you leave everything to your wife, it will be possible under both the English and Spanish legal systems, therefore you would not need to change your Will.
If you are not sure which law will apply to your succession or if your Will should be updated, we can assist you. The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
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