# more on wills



## travelling-man (Jun 17, 2011)

Own a European holiday home? New rules mean you can now choose who inherits it - Telegraph

I guess the next question must be does that UK style will have to be registered with the notary?


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## TonyJ1 (May 20, 2014)

It was always the case that foreign citizens could apply their personal law to their estates. The personal law was usually the law applicable in their country of birth/citizenship (If Portuguese citizenship was taken up, then Portuguese personal law applied as far as I am aware). If that citizen was married to a Portuguese citizen or had children who were Portuguese citizens then the story was different. 

The Brussels IV ruling does not change the previous law as applicable to non residents - the changes apply to residents. Foreign nationals resident in Portugal have the option of having their personal law applying to their estates.


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## Maggy Crawford (Sep 18, 2010)

Which is what we did. We have granted Portuguese Wills under the laws of England and Wales. We can recommend a very competent English speaking lawyer in Pombal.


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## OrangesYeah (Apr 22, 2014)

Maggy Crawford said:


> Which is what we did. We have granted Portuguese Wills under the laws of England and Wales. We can recommend a very competent English speaking lawyer in Pombal.


That's interesting Maggy - do you know if you have to have an English will too, to cover English assets?


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## thegypsyinme (Jan 17, 2014)

Hi OrangesYeah,

According to our Portuguese avogado you only need to have an English will for UK/Portugal. The Portuguese legal system has no interest in the matter.


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## Maggy Crawford (Sep 18, 2010)

We do also have English Wills to cover any estate in UK. Our Portuguese Wills mean we do not have to follow Portuguese law which seems very rigid but the estate will be distributed according to our wishes.


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## OrangesYeah (Apr 22, 2014)

Thanks for the replies, Maggy and thegypsyinme

I must admit "thegypsyinme" I'm surprised at your avogado's advice which, although it may be true, isn't what most people do. When I first arrived I was told, at Finanças, that I didn't need to declare UK bank interest on my tax return, I am very glad I didn't believe him!

Also, my mother-in-law died while living in France. The French certainly took an interest - a notaire took over everything and we paid lots of tax on her estate when, apart from any tax on her house and belongings, we wouldn't have paid a penny if we had been allowed to deal with it in the UK.

Maggy, I must ask - do both your wills say the same thing, just in different languages?


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## Maggy Crawford (Sep 18, 2010)

Yes. Distribution of the estates is the same.


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## TonyJ1 (May 20, 2014)

In my view, for what it is worth, better to have a UK/ foreign will to handle the UK assets, and have a separate will to handle specifically the Portuguese assets. 

If you look/find an English speaking notary, you can have a Portuguese will done for not too much money. 

With a Portuguese will, the local 'probate' will be relatively simple and low cost, as opposed to an English will, which will first go through foreign legalisation, translated and submitted to local court etc - lawyers (both foreign and local) love it.


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## Maggy Crawford (Sep 18, 2010)

Exactly which is why we executed Portuguese Wills plus English Wills.


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## OrangesYeah (Apr 22, 2014)

Um, now I'm confused as I'm understanding TonyJ1 as saying that one should have different wills for each country but I understood Maggy as saying she had the same for both countries, just in different languages.


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## travelling-man (Jun 17, 2011)

As I understand it, the change in legislation means the will can comply with UK inheritance rules, can be written in English and can apply to all properties in the EU at least. 

To me, the question now is do they now need to be registered with a notary or once signed and witnessed can the will simply be put in a safe place until the relevant person croaks?


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## Maggy Crawford (Sep 18, 2010)

Our Portuguese solicitor arranged for our Portuguese Wills to be notarised (not cheap) but she says that it is a "belt & braces" solution to making probate easier. In the UK our British solicitor holds our English Wills for safekeeping as he is the executor in the event of the death of the survivor. Our Portuguese solicitor is in Pombal and everyone we have recommended to her and for whom she has acted is very pleased with her service.


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## travelling-man (Jun 17, 2011)

Maggy:

When did you make those wills please?

That article is dated 10th July and refers to new legislation.

What I want to know is can we now do it the UK way and just make a will, have it witnessed and then just put it away until needed?


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## TonyJ1 (May 20, 2014)

My suggestion, as I have suggested in other posts, consult an English speaking notary - they are around and the younger ones are approachable for their advice - you can by-pass the lawyer thus cutting one layer of costs.

The way I see it, if you are resident in Portugal, in view of the Brussels IV rules, unless your 'old' will makes specific reference that you wish your estate to be governed by English (or other personal law), then your estate will fall into the Portuguese inheritance rules. Off course you may do nothing, but in the event of any dispute whatsoever will result in extra costs in handling the estate. 

If are resident and your will does not conform to Portuguese rules, technically it could be ignored, and the estate subject to Portuguese interstate laws.


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## travelling-man (Jun 17, 2011)

FWIW, I spoke to a PT lawyer yesterday and he was (I think deliberately) rather vague so as Tony suggests, probably the next step is to talk to my local notary and see what she says......... don't even know if she speaks English but I'll give it a try and will report back. 

I guess the other source of info might be the Embassy but from previous experience, they tend not to answer email enquiries.


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## TonyJ1 (May 20, 2014)

You consult a lawyer and he is vague - does he have a clue?


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## travelling-man (Jun 17, 2011)

TonyJ1 said:


> You consult a lawyer and he is vague - does he have a clue?


In his defence, I just bumped into him and asked if he knew anything about the new legislation so he wasn't able to check anywhere but that said, it wouldn't be in his interests to tell me I no longer need a lawyer to get the job done so he may have been being deliberately vague.


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## TonyJ1 (May 20, 2014)

If he was a bit brighter, he should have said ' come into my office and I will check it out for you' and handed you a bill for the trouble


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## thegypsyinme (Jan 17, 2014)

*Wills*

Hi Travellingman,

Is this any help to you?

RONALD SWYER 
English Solicitor

Wills, Estates and Trusts 
There seems to be a common misconception that if you own a property in Portugal you need to make a Portuguese Will and that it is easier to deal with the property if you have one on the death of the owner.

This is in fact not true. If you are a foreigner owning property in Portugal, whether resident or not, the Portuguese Civil Code expressly states that on your death, it recognizes the “Law of the Nationality of the deceased person” so far as Inheritance Law is concerned.

Dealing with an English form of Will is no problem. We are authorised to issue Consular Declarations in respect of English law in so far as it relates to the provisions of the Will.


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## TonyJ1 (May 20, 2014)

thegypsyinme said:


> Hi Travellingman,
> 
> Is this any help to you?
> 
> ...


This is the law that applies until the 16 August 2015. As from the 17th August, the Brussels IV rules will apply to residents whatever their nationality. This will apply across the European Union save for the UK, Ireland and Denmark. If you are not resident, there is no change.


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## travelling-man (Jun 17, 2011)

thegypsyinme said:


> Hi Travellingman,
> 
> Is this any help to you?
> 
> ...


It's certainly interesting..... thanks. 

One of the things that confuses me is the article says the law changed on the 10th July....... I'll try to talk to a notary in the next week or two and see what they have to say about it all.


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## TonyJ1 (May 20, 2014)

Do a search on the internet - the law was approved in July 2012, but it will become applicable as from 17th August this year


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## travelling-man (Jun 17, 2011)

Barring a few pieces of worthless land in Africa, all of our property is now here in PT and all we want to do is make mirror wills that leave everything to the surviving partner until they die then pass it onto our kids. 

You'd think that'd be easy and cheap but apparently not........ I've twice been quoted €1400 to do that for the two of us and I reckon that cost is utterly ridiculous.


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## TonyJ1 (May 20, 2014)

Find an english speaking young notary in your neck of the woods - they are usually approacable - will cost you a lost less than this amount


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## travelling-man (Jun 17, 2011)

What I have in mind and assuming the article is right and that I understand it correctly, is that we can simply write our (very simple) mirror wills, have them witnessed and then either simply put them in a safe place or register them with a notary......... but no-one seems to know if I need to register them or not?


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## baldilocks (Mar 7, 2010)

Your wills if you want them to be treated as under the law of your nationality MUST state that you are making your will under the following article of the following law which has already been pointed out comes into force in August, otherwise the law of the country in which your property is located will apply.

EU Succession Regulations, 650/2012 Article 22

You can google it and you will find that it is set out in different languages (to suit all the EU) but Article 22 is the particular bit that allows the law of your nationality to apply. If you are of Scottish nationality, then the Scottish law of reserved heirs will apply.

I don't know the procedure in Portugal but in Spain the notary makes out the will and you just sign it, you get a copy, the notary keeps a copy and a copy is sent to the central registry of wills in Madrid.


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## TonyJ1 (May 20, 2014)

I don't quite agree with your first statement, The overall idea of this law is that the law of the country of residence applies, unless it is by option of a will that that the law of nationality (if multiple nationalities, then should opt for one). In very rare circumstances will be the law of where you possess assets. If you own property in multiple countries, as a general rule, it will be the law of the country of residence rather than the law of nationality or where the property is located that will govern the inheritance rules. 

Residence and ownership of property are not necessarily quivalent.


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## TonyJ1 (May 20, 2014)

Off course a fundamental question, is in the case of a UK citizen who dies in Portugal and let's assume there are no UK assets, and has opted to be governed by Portuguese inheritance laws, is there anyway the UK authorities can claim inheritance taxes (this question also applies to other nationals where their maybe inheritance / estate duty taxes - particularly US citizens). Currently there being no inheritance taxes on an estate left to wife and/ or children/ grandchildren under Portuguese law


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## baldilocks (Mar 7, 2010)

TonyJ1 said:


> I don't quite agree with your first statement, The overall idea of this law is that the law of the country of residence applies, unless it is by option of a will that that the law of nationality (if multiple nationalities, then should opt for one). In very rare circumstances will be the law of where you possess assets. If you own property in multiple countries, as a general rule, it will be the law of the country of residence rather than the law of nationality or where the property is located that will govern the inheritance rules.
> 
> Residence and ownership of property are not necessarily quivalent.


Read my Post properly!


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## baldilocks (Mar 7, 2010)

TonyJ1 said:


> Off course a fundamental question, is in the case of a UK citizen who dies in Portugal and let's assume there are no UK assets, and has opted to be governed by Portuguese inheritance laws, is there anyway the UK authorities can claim inheritance taxes (this question also applies to other nationals where their maybe inheritance / estate duty taxes - particularly US citizens). Currently there being no inheritance taxes on an estate left to wife and/ or children/ grandchildren under Portuguese law


so he opts for Portuguese law to apply - quite simple.


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## TonyJ1 (May 20, 2014)

baldilocks said:


> Read my Post properly!Your wills if you want them to be treated as under the law of your nationality MUST state that you are making your will under the following article of the following law which has already been pointed out comes into force in August, otherwise the law of the country in which your property is located will apply.


Am I missing something, it is the nationality law and residency that comes into play, not where the assets are situated in?


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## baldilocks (Mar 7, 2010)

TonyJ1 said:


> Am I missing something, it is the nationality law and residency that comes into play, not where the assets are situated in?


Yes you are. The basic EU law says, that the law of where the assets are domiciled is the one that is applicable unless you opt to apply Article 22 of the new law which enables the law of your nationality to apply. This means the property in Spain or Portugal or France will be dealt with under the law of each of those countries unless...


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## TonyJ1 (May 20, 2014)

baldilocks said:


> Yes you are. The basic EU law says, that the law of where the assets are domiciled is the one that is applicable unless you opt to apply Article 22 of the new law which enables the law of your nationality to apply. This means the property in Spain or Portugal or France will be dealt with under the law of each of those countries unless...


I beg to differ, article 22 says, and I quote 'A person may choose as the law to govern his succession as a whole...'. The way I read it, you have to select one country to govern the estate, and that is the law of the country of residence or the law of nationality. I think the wording 'the succession as a whole' is quite clear. For example, if you are a permanent resident in Spain, you are a national of the UK and say you have German nationality as well, and you own property in Ireland, Italy, France, etc, you can elect which law to apply, but it is limited to the law of nationality i.e. in this case the UK or Germany. In addition you may choose the country of residence, but not the country where you may own property but are not a resident or national. I don't read into this article of the EU law that you may choose where you own property (though it might be in another article - I have not read the whole law).


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## TonyJ1 (May 20, 2014)

baldilocks said:


> so he opts for Portuguese law to apply - quite simple.


I don't think this issue is as simple as this. The UK law of domicile is not easily to detach. There is a well known case, now I do not remember the name of the actor, but basically a well know British actor lived in Switzerland, and was supposedly 'domiciled' there, but when he died he was buried with I think the Union Jack. This was sufficient for the UK revenue to go for its cut under the argument that he had not cut his ties to Britain, and he was therefore domiciled in the UK and had not totally relocated his domicil, and the estate was therefore subject to UK estate duties / inheritance taxes.

So my question still stays, how is the UK going to come to terms with these changes in the law - the UK has opted out, but I don't see how it is going handle of thousands of estates where they don't even necessarily know the person has died, as many of these estates will be handled in Europe.


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## baldilocks (Mar 7, 2010)

TonyJ1 said:


> I don't think this issue is as simple as this. The UK law of domicile is not easily to detach. There is a well known case, now I do not remember the name of the actor, but basically a well know British actor lived in Switzerland, and was supposedly 'domiciled' there, but when he died he was buried with I think the Union Jack. This was sufficient for the UK revenue to go for its cut under the argument that he had not cut his ties to Britain, and he was therefore domiciled in the UK and had not totally relocated his domicil, and the estate was therefore subject to UK estate duties / inheritance taxes.
> 
> So my question still stays, how is the UK going to come to terms with these changes in the law - the UK has opted out, but I don't see how it is going handle of thousands of estates where they don't even necessarily know the person has died, as many of these estates will be handled in Europe.


The problem is, as it has always been, the UK opts out of doing anything about it. The laws in UK and most European countries say/said it is the other country's problem to sort out. Spanish law said it reverts to the UK, UK (Irish and Danish) law still will say that it is Spain's problem (it has a legal term which escapes me for the moment). I think in your case mentioned above, the Union Jack being the reason was a bit of media license, there would have to be more to it for HMRC to act - quite probably he had property and other economic ties to UK but they don't make such a good story.

Take a read of this, it gives the background to the making of the new law:
European Commission - PRESS RELEASES - Press release - Tackling EU cross-border inheritance tax obstaclesâ€“ Frequently Asked Questions

One must not forget that there is a difference between which country taxes, and the law on who inherits.


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## TonyJ1 (May 20, 2014)

Perhaps part of what you say is true but have a look at this link

Richard Burton, Actor


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## baldilocks (Mar 7, 2010)

TonyJ1 said:


> Perhaps part of what you say is true but have a look at this link
> 
> Richard Burton, Actor


As I said - probably media- license:


> One UK national newspaper reported that Burton was buried in Wales. Some internet sites say that his ashes were shipped from Switzerland for interment in Wales . A British tax inspector was reportedly deeply influenced to conclude that the actor was domiciled in Wales by a photograph of a Welsh flag draped over Burton's coffin in Switzerland.


Sounds like the _Sun_ or similar.


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## TonyJ1 (May 20, 2014)

This is not the sun and this is a very famous tax case which is used as precedent


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## baldilocks (Mar 7, 2010)

TonyJ1 said:


> This is not the sun and this is a very famous tax case which is used as precedent


I am merely relating to your quoted piece which says "It was reported" - no facts nor serious references. You need to get hold of what "domiciled" means. Most countries interpret this to mean "one's centre of economic interest." In my case, although I receive pensions from UK, I have no property there and have not been back there for years, I have no intention of moving back there so effectively since my family all live here with me, I own the house in which we live, etc. Spain is my centre of economic interest, and I am domiciled in Spain


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## TonyJ1 (May 20, 2014)

I have no particular interest in the questions of domicile as it does not affect me either - I just posed the question on inheritances under the new rules - there is more to this question than meets the eye, and forum members need to be aware of this.


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## RichardHenshall (Jul 26, 2009)

The UK budget and expatriates in Portugal - The Portugal News states that



> Currently, UK nationals leaving the UK to live abroad permanently are deemed domiciled in the UK (so liable to inheritance tax on worldwide assets) for at least three years. This will increase to five years. If they return to the UK, their domicile of origin immediately reverts, under all circumstances. Further consultation will take place before this becomes law.


and



> UK property owned by non-UK domiciles will become subject to UK inheritance tax even if held indirectly through opaque structures like non-UK companies or partnerships, or excluded property trusts. This proposal will be subject to consultation.


I realise that this has nothing to do with wills, or who you can leave your assets to, but it seems relevant nonetheless.


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## baldilocks (Mar 7, 2010)

RichardHenshall said:


> The UK budget and expatriates in Portugal - The Portugal News states that
> 
> 
> 
> ...


Any/all of it is relevant. Inheritance/succession is as much about to whom you can leave assets as how it will be taxed and by which authority. Get it wrong and legatees can be faced with a horrendous tax bill and other problems. A person we knew left his house and assets to a couple of friends (i.e. unrelated) and they were faced with a tax bill of more than €28,000 to be paid within 6 months; The house now seems to be unsaleable because of various illegal alterations and "improvements" were made that now, by law, have to be removed at further expense.


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