I'm a resident in Spain: Should I change my will?

Jun 03 2015
Testamento cambiar

Successions in Europe have had a deep change with the adoption and publication of Regulation 650/2012 of the European Parliament and the Council of July 4, 2012, on jurisdiction, applicable law , the recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession upon death, and the creation of a European Certificate of Succession.



The key is choosing only one single law applicable to the succession.



Regulation has its starting point in the idea that European citizens should be able to plan and organize their succession choosing the applicable law, and one of the ways to allow this is to avoid fragmentation of the succession.


Indeed, it is not uncommon to find out that a foreign citizen had a will in his home country and plans to grant another will in the place of his habitual residence, concerning the real state, assets, credits, rights or bank accounts in that country, or even a third testament if he owns another real state in another country.


The mentioned Regulation tries to eliminate the habit of having as many wills as personal connections with countries of the European Union, which will prevent to start different procedures, in different countries and under different law. Because of that, it settles the principle that only one and single law informs the whole succesion, being this law the one of the place of habitual residence or nationality.


I don’t pretend to exhaustively analyze the content of the Tegulation, I only will try to clarify the doubts that many foreign nationals are asking me in my office in the last weeks, that are summarized in the following question: Should I change my will?



On the 17th of Agusut 2015, the Regulation will be applicable.



The Regulation shall be applicable to the succession of european citizens who die on August 17, 2015 or after this date.


Therefore it is important that the foreign citizen who has already granted a will in Spain reviews its contents prior to that date, to ensure that his will be effectively applied. In addition, the foreign citizen who has not granted a will in Spain, should also take the opportunity to get informed and, if so, grant a will already adapted to the Regulation.



¿In which countries the Regulation will be applicable?



It applies in all the European countries except Britain, Ireland and Denmark. In these countries the Regulation shall not be in force unless ther is not an express option for it. However, citizens of these countries that are resident in other countries where it is going to be applicable, they can be affected.



Ask your Notary, it’s free.



If you have any doubt, it is convenient that you contact your notary with a copy of your previous will, so the notary can examine it and give you his advice on whether or not to adapt it.


If you already chose the law of your nationality specifically when you granted the will, and it is reflected in the document, it may not be necessary to adapt your will. However, it is convenient that the notary evaluates whether the expression of that option meets the requirements of the Regulation, because the mere expression of the nationality, or the mention that the will is valid under national the law of the testator or testarix may not be sufficient.


Remember that this consultation is free, and the only cost for you will be to change the will if it you decide to. It is possible that your will is already adapted, especially if it has been signed recently, and you may have nothing to correct or expand.



¿What do I have to do to adapt my will to the Regulation?



First of all, you have to think and choose which law do you want to be applicable to your succession: The law of your habitual residence when you die, or the law of your nationality, when making the choice or at the time of your death. If you have multiple nationalities, you can choose among them. To do this, you must evaluate some circumstances, as your marital status, the existence of descendants or ascendants, the location of your real state, how much freedom to organize your succession you have in the law of your nationality, etc.


If you choose any of those laws before August 17, 2015, your will be perfectly valid after that date, and your testament and bequests will produce the effects that you have planned.


If you do not choose any of those laws, article 21.1 of the Regulation establishes that the law applicable to the entire succesion will be the one of the State in which the deceased had his habitual residence at the time of death. Remember that in Spain there are restrictions on the freedom of making wills, called “legítimas” , which can lead to distort your will, if it is that your wife or husband inherits all your state before your children.



I have to adapt my will and I already know which law I want to be applicable… What then?



You must change or adapt the testament, and there are two possibilities: The first is to grant an additional will. In that case, the previous testament will remain valid and the new will be limited to include the clauses or expressions that are necessary.


The other option is to grant a new will fully adapted to the Regulation, leaving the previous without effects and clarifying in a single document all the aspects of your estate that are relevant for you. Of course, if your personal circumstances have changed, it can also be the time to think of a deeper change it.


In any case, the choice is only yours. The difference in cost between the two options is not relevant at all, so it should not be the main point to define your choice, because, as we shall see, the cost of a new will is affordable by everyone.



¿How much will it cost?



A notarial will costs about 50 euros, including copies. However, keep in mind that the cost depends on the number of sheets that the will has, so if you want it translated, the cost may be slightly higher


That's important because if you want your will to be written bothin Spanish and in your own language, using the double column system, the cost can be double, as the document will have double lenght and therefore it will be more extensive because of the translation.