Derecho Inmobiliario y cuestiones Fiscales
As from 17th August 2015 the wills drawn up in ones native country could lose their effect in Spain
This becomes a reality for many people living in Mallorca and Ibiza if:
- They come from another European country.
- They own a property in the islands.
- They wish to enjoy their retirement in Mallorca or in Ibiza.
- They work in the Balearic Islands.
They should all ask themselves:
- What happens in the case of death?
- Under what Inheritance Law will their inheritance be treated?
- Will this be as per the Inheritance Law of their native country or that of the country where they have usually resided prior to death?
As from the 17th August 2015 has come into force the new European Regulation 650/2012 under which is regulated the inheritance of a deceased person. Under this regulation the inheritance is ruled by the Inheritance Law of the country where the deceased person has usually resided with exception to foreign residents in Ireland, Denmark and Great Britain, country that are exempt and where the new regulation is not valid.
Most important points of the new legal text
Normal residency in Spain – Spanish Inheritance Law
The inheritance accepted by the citizens of the EU will be regulated according to the Spanish Inheritance Law if at the time of death the deceased has his/her usual residence in Mallorca, in Ibiza or any of the Balearic Islands. For example: The decease of a pensioner or British working person whose usual residence is in Mallorca or Ibiza will be regulated by the Balearic Inheritance Law.
How was the regulation prior to the European regulation?
If the decease of an English citizen took place in another European country other tan Great Britain, for example in Spain, the inheritance was regulated by the British Inheritance Law whereby the will drawn up in Great Britain was valid. The assets located in Spain, such as property or patrimony in banking accounts, could be regulated additionally through a notary will drawn up in Spain.
Choice of applicable right
The best and safest way of regulating an inheritance is through a will signed before a Notary in Spain. According to the new European regulation it is possible to establish the applicable right. This way he making the will may decide under which law he/she wishes the will be dealt with, that is, under the British or Spanish Inheritance Law. This decision must appear in a legal will drawn up before a Notary. Without a will being drawn up, the Spanish Inheritance Law will be applied.
Does a foreigner will in Spain become invalid?
The will of a British person or other European country will lose its validity as from the 17th August 2015 in Spain and we place as an example the case of a sole heir; A British married couple may draw up the sole heir in the case of decease of one of the spouses, a wish that cannot be applied within the frame of the Spanish Inheritance Law applicable in the Balearic Islands as both in Mallorca and in Ibiza there exists the legitímate share, that forces that part of the inheritance is shared out between the legal heirs.
European inheritance certificate
The new regulation unifies certain documents concerning the necessary proceedure for the acceptance of inheritance in the EU. For example, the European inheritance certificate is introduced, a valid legal document that can substitute the declaration of heirs, where, in the case of inheritance, should appear:
- Which are the assets abroad.
- The deceased person.
- The heirs.
- The proportional part.
The Inheritance and Donation Tax does not vary
The Inheritance and Donation tax does not vary in the new regulation. That is, the heirs that wish to accept the inheritance in Spain should in the future pay the corresponding tax. Who can advise me concerning inheritance if I live in Mallorca or Ibiza? In the case of address, usual residence and patrimony in Mallorca and/or Ibiza it is recommended you look for the advice of an expert in the subject of Inheritance. A lawyer with international clients, above all with British clients in Mallorca or Ibiza will be fully capable of drawing up your will in both languages, taking into account your wishes and choice of applicable right, apart from assisting you with the Notary who will validate this document.
For years one of the specialities of Bufet Frau is the Private International Right concerning inheritance. If you wish further information concerning wills, their regulation and Spanish Inheritance Law please do not hesitate to contact us. It will be our pleasure to assist you.
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