To the question “Are we fully covered?” mentioned in Canarian Weekly web page in relation to the succession by reason of death, I come back again with a short summary of the law.
The regulation is in vigour since 2012 but applicable form 17th August 2015. It will apply to all people who pass away after such date.
TERRITORY: the Regulation will apply to all international successions, irrespective of the fact that the decedent is citizen of a EU member or not, if produced within EU territory. It is not applicable to Denmark, UK and Ireland (although applicable to those citizens residents in another EU country).
MATERIAL LAW: it is applicable to all succession excepting taxation and administrative matters, marital status, gifts, capacity, company law, real estate rights, economic regime of marriage, registration.
COMPETENT COURTS: in general, the competent Court will be the one where the decedent had his residence at the time of the death. However, under some circumstances it could be the Court of the nationality of the decedent if he expressly designated such Court (in a Will) and subsidiary, the Court of a UE member State where the assets are located.
APPLICABLE LAW: in general, the law of the residence at the time of the death. This means a substantial change with Spanish legislation that state, as per as article 9.8 of Civil Code that the applicable law to the succession is the national law (nationality). The new regulation is applicable to all UK, Ireland and Denmark citizens resident in other EU member State. For instance, the estate of a British citizen resident in Spain will be regulated by the jurisdiction of Spanish Courts. But the regulation allows people to choose in their Will to apply their nationality law. It should be expressly stated in the Will.
Hence, it is very important for a British national resident in Spain to consider if he/she wishes that his estate to be governed by Spanish law, including the application of “legitima” right (right of the children to 2/3 of the estate) or, on the contrary, to be regulated by his/her law of nationality (British law in this case). In spite of this there is an exemption to the law of residence when the Regulation says: “Where, by way of exception, it is clear from all the circumstances of the case that, at the time of death, the deceased was manifestly more closely connected with a State other than the State whose law would be applicable under paragraph 1, the law applicable to the succession shall be the law of that other State”. This question is exceptional, which means that it is advisable for all foreign citizens having properties in Spain to ask for legal advice in order to grant a Spanish Will or modify the old one granted (if any).
DECISIONS: RECOGNITION AND ENFORCEMENT: All decisions granted in a EU member State will be recognized all around the EU without any special proceeding required. Such decisions will be also enforceable in EU countries when, on the interest of the party, they have been declared enforceable by a local Court or authority (there are some exceptions). This is also applicable to Notary public decisions.
EUROPEAN SUCCESSION CERTIFICATE: It is an application form created by the Regulation to enable inheritors, executors, administrators, to prove their capacity and interest in all countries in which Regulation is applicable.
ARE WE FULLY COVERED?: In Law there is black and white and I understand that this question has been answered when I said: “it is advisable for all foreign citizens having properties in Spain to ask for legal advice in order to grant a Spanish Will or modify the old one granted (if any)”. This is more recommendable to all foreign citizens residents in Spain in whose country there is no “legitima” (irrespective of the decedent wishes to leave all to his/her children).