Our office receives many enquiries regarding the European Regulation 650/2012, which will apply from the 17th of August 2015. Applies to inheritance relating to deaths that occur after that date (17th). This is relevant for Wills and inheritance of expatriates in Spain.
As explained in previous articles, the applicable law to the succession and inheritance law in Spain will, in principle, be the law of the country where the deceased has his habitual residence at the time of death.
However, Article 22 allows the testator / testatrix to explicitly opt for the law of his / her nationality. In the case of the British, opt for the law of England and Wales, or Scotland, etc.
This Regulation is about the law that should govern inheritance and succession, but does not relate to the Inheritance Tax Law applicable. The applicable law to the succession is important, since as per the Spanish Inheritance Law, the descendants have the right to about 2/3 of the estate.
It is possible there are different rules in the country of origin of foreigners living in Spain; and they are not forced to leave to their descendants a share, as required by the Spanish law.
Therefore it is very important to get proper advice and make a Spanish Will or review the existing one. In order to know which law will apply to your inheritance and succession. And, where appropriate, to opt for the law of your nationality, if you want it to be the applicable one.
Many of our readers tell us that they have been advised that under this new Regulation, they must opt for their own national Inheritance Tax laws, as they are more beneficial.
Well, this advice is absolutely wrong. As the Regulation 650/2012 does not change the applicable tax law to the inheritance and successions.
And does not change the taxes to be paid, which are not affected by this regulation, the taxes to be paid are the same as before:
.- If the beneficiary of the inheritance is not tax resident in Spain:
they will only pay inheritance taxes in Spain, for the assets situated in Spain (not by for those located in another country, such UK, Ireland, etc.). It is what is known real obligation. Although they could benefit from significant tax benefits if the beneficiaries are residents in a country of the European Union.
.– If the beneficiary of the estate and inheritance, is tax resident in Spain:
they will pay inheritance taxes in Spain for all the assets and rights to inherit, regardless of where they are, in what is known as personal obligation. Also, according to the autonomous community of residence, they will benefit from significant tax benefits.
In conclusion, it is important to seek professional advice regarding your will, and understand which law will apply to your succession. Readers should note that the Regulation changes the law applicable to the succession, and not the tax legislation, or inheritance taxes payable.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
Spanish Law firm solicitor attorney barrister.
White & Baos 2015 – All rights reserved