Will and succession law for a Spanish property: EU 650/2012

What the Regulation decides

The Regulation applies to “las sucesiones por causa de muerte” and, by its first article, not to tax, customs or administrative questions. Taxes on an inheritance are the subject of another guide: see inheritance tax for non-residents in Spain.

It settles three things, in this order:

• Which courts have jurisdiction. Art. 4: the courts of the member state where the deceased had habitual residence at death have jurisdiction over the whole estate.
• Which law applies. Art. 21.1: “la ley aplicable a la totalidad de la sucesión será la del Estado en el que el causante tuviera su residencia habitual en el momento del fallecimiento.” Art. 21.2 adds an exception: if all the circumstances show that at death the person was manifestly more closely connected with another state, that state’s law applies.
• How a decision or document travels. Chapters on recognition, public documents and the certificate, below.

The Regulation applies to deaths on or after 17 August 2015 (art. 83.1). It is a single-law system: the law found under arts. 21 or 22 governs the whole succession (art. 23.1), including who the beneficiaries are, their shares, the protected share of the estate (legítimas) and how the estate is divided (art. 23.2).

Habitual residence

The Regulation uses habitual residence as the connecting factor but, in the text read for this guide, the article does not give a numerical test: no number of days appears in arts. 4 or 21. If you divide your year between Spain and another country, the question of where you were habitually resident at death is a factual one for the authority handling the estate.

Choosing the law of your nationality (art. 22)

Article 22.1: “Cualquier persona podrá designar la ley del Estado cuya nacionalidad posea en el momento de realizar la elección o en el momento del fallecimiento.” A person with several nationalities may choose the law of any of them, as held at the time of the choice or at death.

Conditions in the text:

• The choice must be made expressly in the form of a disposition on death, or must follow from the terms of one (art. 22.2). It is normally done through the will itself.- Changing or revoking the choice must meet the formal requirements for changing or revoking dispositions on death (art. 22.4).
• Only nationality is available. You cannot choose the law of a country with which you merely have ties.

For readers who are not EU citizens (British, American, Canadian), art. 20 states that the law designated by the Regulation applies “aun cuando no sea la de un Estado miembro”. So a British, US or Canadian national living in Spain may choose the law of their own country of nationality under art. 22. Where the chosen state has several territorial legal systems, such as federal or devolved states, art. 36 sends the question to that state’s own internal conflict rules; this guide did not read those rules.

Two limits to remember. First, the Regulation does not govern the nature of rights in rem (property rights) or the registration of rights in a land register (art. 1.2.k and l); Spanish property and registry rules still apply to the home. Second, the Regulation says nothing about taxes. Choosing a national law does not choose a tax system.

European Certificate of Succession

Chapter VI creates a certificado sucesorio europeo. Key points read:

• Optional. “La utilización del certificado no será obligatoria” (art. 62.2). It does not replace national documents used for similar purposes.
• Purpose. It is issued for heirs, legatees with direct rights in the estate, executors and administrators who must prove their capacity or exercise their rights in another member state (art. 63). It can prove their status and shares, the allocation of specific assets, and the powers of an executor.
• Issuing authority. The member state whose courts are competent under the Regulation, through a court or other authority competent in succession matters under its national law (art. 64). Which Spanish authority issues it was not read for this guide.
• Application and content. A form is available; the application states details of the deceased and the applicant, whether the deceased left a will or a marriage contract and whether any beneficiary has accepted or renounced (art. 65).
• Effects. It takes effect in all member states without any special procedure (art. 69.1). It is presumed to prove what it certifies. A person who pays or delivers assets in good faith on the basis of the certificate is treated as dealing with an authorised person. It is a valid title for registering the inheritance in the competent register of a member state, subject to art. 1.2.k and l (art. 69.5).
• Copies. Certified copies are valid for six months, then must be extended or replaced (art. 70.3).

A will made in Spain

The Civil Code distinguishes ordinary and special wills, and says the ordinary will may be ológrafo (handwritten), abierto (open) or cerrado (closed) (art. 676). This guide does not describe the formalities of each; the notaries’ council page on wills was not readable for this guide, so ask a notary directly.

A notarial will in Spain is entered in the Registro General de Actos de Última Voluntad (General Register of Acts of Last Will) of the Ministry of Justice. The Ministry’s page says it records wills made before Spanish notaries, reported weekly by the notarial associations, as well as wills made abroad before Spanish consuls and foreign wills registered at a person’s request.

Anyone, Spanish or foreign, who needs to know whether a will exists can ask for a certificate, including the heirs and the person while alive. The Ministry’s online office states:

• the request cannot be filed until 15 working days after the date of death;
• the online route is open if the death was after 2 April 2009 and is not registered in a juzgado de paz; otherwise use form 790, in person or by post;
• the fee (tasa 006) is paid through the Tax Agency’s gateway; the amount was not shown on the pages read;
• a certificate that must take effect abroad needs legalisation.

Which professional to consult

A notary can draft and authorise a Spanish will; a lawyer registered with a Spanish bar association (colegio de abogados) can advise on the choice of law and on how it fits with a will made in your country of origin. If you also have a will in another country, tell each adviser about both. See the page on the property lawyer.