# New EU Inheritance Laws



## tobybrown (Aug 6, 2015)

I’ve just seen an article regarding a new law on inheritance and wills in Spain and I am confused. My parents, who have both retired out to Spain some years ago and have a bilingual will they signed several years ago in front of a notary.

Do they need to redo their will, they have just a villa in Peniscola, their house in UK that they rent out and UK private and state pensions.


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## snikpoh (Nov 19, 2007)

:welcome:

They only have to update (redo) their wills if they wish to follow UK law and not the succession law in Spain.

Specifically, if they don't want to leave their assets to their children, then they need to redo their wills with the specific clause in them.

I believe there have been other threads on this topic so you may want to do a quick search on this forum first.


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## Lynn R (Feb 21, 2014)

snikpoh said:


> :welcome:
> 
> They only have to update (redo) their wills if they wish to follow UK law and not the succession law in Spain.
> 
> ...


If they want to leave their assets to the surviving spouse in the first instance, to be left to their children when the second spouse dies, then they would also need the clause in their wills as that would not follow the Spanish succession laws.


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## alex iptweu (Aug 6, 2015)

Hi Tobybrown

What your parents originally prepared is a hybrid Spanglish Will that will become invalid on 17th August as it tries to bolt English freedom of disposition rules into Spanish law.

The EU directive Brussels IV does not change sovereign nations laws regarding inheritance only your right to chose your country of birth’s rules or those of your country of residence.

When you have assets in two countries the situation becomes more complicated as Brussels IV has three key tenants. 

You may chose which law applies to your inheritance as long as that choice is expressed in a legally recognized Will.
The law you chose has to apply to all your assets (i.e. you can’t pick Spanish rules for Spanish assets and English rules for those in UK)
The administrative system applied to your assets has to conform to the laws of the country chosen.

Because your parents have assets in both countries they should prepare two wills for their property and private pension in the UK and One for their Spanish assets and those two wills should refer to each other.

The exact wills will depend upon to whom they wish to leave their assets. If it is to their spouse and then children then you need to chose English law and freedom of disposition because Spanish law forces all or part the inheritance to be left to the children bypassing the spouse.


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## tobybrown (Aug 6, 2015)

thanks for that I need to check on if they have an English will first then I guess. And then find a notary that is working in August lol


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## Rabbitcat (Aug 31, 2014)

Just to be clear on this please 

A couple with no kids - in Spanish law does all the estate in Spain go to the surviving spouse? Thanks


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## snikpoh (Nov 19, 2007)

alex iptweu said:


> Hi Tobybrown
> 
> What your parents originally prepared is a hybrid Spanglish Will that will become invalid on 17th August as it tries to bolt English freedom of disposition rules into Spanish law.


Absolute rubbish!!!!

Your will does NOT become invalid - I do wish people would stop being alarmist!


Your will now follows Spanish succession law. If you don't want that, then by all means , get your will updated (redone).

As I stated in post #2 - which I thought was clear. If you don't want your children to be sole heirs, then add the clause. If you want your spouse to inherrit, then add the clause.


Your existing will IS STILL VALID.


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## Rabbitcat (Aug 31, 2014)

Snikpoh, have at bash at my query #6, thanks


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## Lynn R (Feb 21, 2014)

snikpoh said:


> As I stated in post #2 - which I thought was clear. If you don't want your children to be sole heirs, then add the clause. If you want your spouse to inherrit, then add the clause.
> 
> 
> .


Sorry, but that is not quite right. Under Spanish succession law two-thirds of the estate must be left to the children and the remaining third can be bequeathed to whoever the testator wishes.

Spanish succession law and its implications | Ábaco Advisers


and I don't know the answer to Rabbitcat's question, but I suspect that if there are surviving parents or siblings they may have a claim to part of the estate under Spanish succession law.


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## Rabbitcat (Aug 31, 2014)

Thanks Lynn, so we would need to make out a will in Spain specifically stating that everything goes to surviving spouse only?


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## Lynn R (Feb 21, 2014)

Rabbitcat said:


> Thanks Lynn, so we would need to make out a will in Spain specifically stating that everything goes to surviving spouse only?


Well I am not a lawyer and I did say I didn't really know the answer to your question, but I do think it would be much safer to have a Spanish will stating your wishes and with the clause about wishing the succession law of the UK to apply. That is what mine says, with further instructions about how I wish my estate to be divided should my husband predecease me - you do need to think about what you would want in those circumstances.


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## Rabbitcat (Aug 31, 2014)

Ah but my wife's much younger than me so I will def pop off first. Besides she may end up killing me someday!!!!


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## Lynn R (Feb 21, 2014)

Rabbitcat said:


> Ah but my wife's much younger than me so I will def pop off first. Besides she may end up killing me someday!!!!


And who could blame her - the poor woman must definitely be severely provoked!

Seriously, though, there is also the possibility of you both dying in an accident, for example. I know our UK wills have some kind of wording about the distribution of our estate should we die at the same time or within x days of each other.


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## Rabbitcat (Aug 31, 2014)

Yes I should consider us both dying at the same time. After all we do eat her chicken n mushroom pie together!!!


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## alex iptweu (Aug 6, 2015)

The key questions for your inheritance are where are your assets and who do you want to bequeath to

If all your assets are in spain and you wish to follow the spanish inheritance rules then a spanish will sufices and you may chose the porportion that goes to children and spouse following a 1/3 1/3 1/3 rules. i.e one third to offspring equally, one third to the offspring in proportion to your wishes and one third to anyone else i.e a spouse.

If however you wish a spouse to receive the assets then the children then you should prepare a will that conforms to Brussels IV and which states your choice of English law to be applied. If you chose the English freedom of disposition then Brussels IV insists that the sames countries probate rules be applied and such provision should also be written into the will. If all the assets are in Spain you'll probably get away with the equivalent of Spanish probate but if any assets are left in the UK e.g. a private pension then you will probably run into an administrative headache because the UK hasnt signed up to Brussels IV, which is why i advise writting two wills.


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## tobybrown (Aug 6, 2015)

funny, well take a leaf out of the airline industry and one of u eats chicken and one of you eats fish lol


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## alex iptweu (Aug 6, 2015)

Lynn R

Your situation is typical and what has been affected most by Brussels IV. You current will wont be recognised through the new legislation and you should consider writing a Brussels IV specific will.

What your current will has tried to achieve is weave two seperate legal systems together, however they are incompatable and I believe will probably become invalid at worst and if challenged Spanish forced inheritance laws applied. Brussels IV makes specific provision for your case but the will must be written in conformity to Brussels IV.


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## snikpoh (Nov 19, 2007)

alex iptweu said:


> Lynn R
> 
> Your situation is typical and what has been affected most by Brussels IV. You current will wont be recognised through the new legislation and you should consider writing a Brussels IV specific will.
> 
> What your current will has tried to achieve is weave two seperate legal systems together, however they are incompatable and I believe will probably become invalid at worst and if challenged Spanish forced inheritance laws applied. Brussels IV makes specific provision for your case but the will must be written in conformity to Brussels IV.


I'm still not comfortable with what you are saying. Almost all legal advice is to do as Lynn has done - adding the clause to her Spanish will.

Do you have a link to "Brussels IV" and maybe a link to a 'boiler plate' will that we could take a look at.


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## alex iptweu (Aug 6, 2015)

The reason I invested so much time studying and understanding the legislation and working with UK and Spanish lawyers is because I beleive many Spanish lawyers are giving advice that serves them in writing Spanish wills.

I attach the link and draw you to the key articles 21-23

I cant send a link yet as have only 3 posts but you can find the legislation at

eur-lex.europa.eu and search for Brussels IV

There are cases where a spanish will works effectively but only if a person has gone native i.e resident in Spain, with no assets outside of Spain (including private pensions) and they wish to follow the spanish succession rules.


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## Rabbitcat (Aug 31, 2014)

Right Alex- for my situation, just wifey and me no sprogs-what sort of will would I need to cover assets in Spain being left solely to surviving spouse? Thanks


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## extranjero (Nov 16, 2012)

Rabbitcat said:


> Right Alex- for my situation, just wifey and me no sprogs-what sort of will would I need to cover assets in Spain being left solely to surviving spouse? Thanks


A Very simple " mirror will" for which you need to see your solicitor, or if fluent in Spanish, save money by going direct to the Notary.
Also consider where to leave your assets to if you both should die Eg in an accident together. I'll give you my details!
Seriously, it is easy to get ripped off for the cost of making a will, and I've heard ridiculous amounts quoted, like 400 euros for mirror wills. Get several quotes


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## Rabbitcat (Aug 31, 2014)

Thanks for that Extra but what does " mirror will" mean? Cheers


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## snikpoh (Nov 19, 2007)

Rabbitcat said:


> Thanks for that Extra but what does " mirror will" mean? Cheers


Simply that the husband's will is a 'mirror image' of the wife's will.


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## Lynn R (Feb 21, 2014)

alex iptweu said:


> Lynn R
> 
> Your situation is typical and what has been affected most by Brussels IV. You current will wont be recognised through the new legislation and you should consider writing a Brussels IV specific will.
> 
> What your current will has tried to achieve is weave two seperate legal systems together, however they are incompatable and I believe will probably become invalid at worst and if challenged Spanish forced inheritance laws applied. Brussels IV makes specific provision for your case but the will must be written in conformity to Brussels IV.


I already have - I needed a new Spanish will anyway as I got married last year, which rendered the original one invalid, so made a new one earlier this year.


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## baldilocks (Mar 7, 2010)

We have dealt with all this in the past. The new law states that your property etc shall be disposed of under the law of the country of your *habitual residence*, i.e. if you live in Spain Spanish law applies. However:

If you wish the law of your nationality to apply and your existing will states that it is made under the Spanish Civil Code Article 9(8) which provides that the will is under the law of your nationality, you need do nothing.

If your will makes no such stipulation and you wish the law of your nationality to apply, then you should have a will made out that states that you wish your will to be carried out in accordance with the EU Succession Regulation, 650/2012 Article 22

While there may not be many to whom the situation of a person having only just moved to Spain dies - what is the country of habitual residence? There is an escape clause in Article 21(2)

You are quite entitled to have more than one will if you have assets in more than one country, however if you wish to, say, have your assets in England disposed of by an English will, then you may also have an English will BUT each of your wills must acknowledge the existence of the other(s).

Taxation will apply according to the country of your tax residence and which Autonomous Community you live in and irrespective of where the assets are located.

Those whose nationality (as defined by the country of birth) is less than clear cut, e.g. persons born in Scotland, may be British but for the purpose of this exercise, are Scottish, so Scottish law applies and Scottish laws regarding succession and inheritance employs the principal of reserved heirs and Scots must follow strict rules regarding the persons to whom they must leave their assets. This does not apply to those born in England and Wales (and for the most part, also Northern Ireland.) Those born in Eire also have the principle of reserved heirs to consider.

Those born in England and Wales have free testamentary disposition (you can leave what you wish to whom you wish) unless you have a very large estate. Beware of any legal person who says that, by law, you have to leave your estate to certain people in England and Wales - there is no law relating to testamentary disposition in those countries unless you die intestate.

You do not make reference to Brussels IV you refer to the EU Succession Regulation, 650/2012 followed by whichever Article you wish to apply. This Regulation comes into effect 17th August 2015.


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