A conflict between Article 28 of the Spanish Land & Mortgage law and the European Succession Regulation 650/2015 may sound rather dull. However, in practise it could create particular problems for spouses from countries such as England who have free disposition of assets.
The majority of people from England who are married with children leave their assets firstly to each other and then to their children on the second death. In accordance with the European regulation on the law applicable to succession English people leaving a formally valid Spanish will can state that this is their wish. They can also state that they want the laws of England and Wales to be applied to their will and this wish must be respected by the country where the assets are ie. Spain.
However recently one of the Registries in Spain has stated that they will register an acceptance of inheritance in favour of the surviving spouse only BUT with a caveat that any obligatory heir can come forward during a two year period to make a claim on the estate. This is in accordance with the Spanish Land & Mortgage law. For Spanish citizens this is a correct application of Article 28 as there is the concept of obligatory or forced heirship for children.
Imagine then a scenario where an English father or mother wants to leave their assets to the spouse but the children are either not available to ratify the deed or where a child from a previous marriage will not co-operate in dealing with the estate. This caveat at the registry could deter buyers and delay or prevent a sale by the surviving spouse.
We are in discussions with the registries and notaries. In our view the European succession regulation has direct effect. Those whose personal law of succession allows free disposition should be able to rely on this to ensure they can leave their property as they wish without any caution at the registry which could prevent sale. For our own clients we provide evidence of English law to avoid any problems in dealing with the inheritance. We have English and Spanish lawyers working together so call us for a private consultation.
We can also apply for Grants of Probate from the English courts and deal with contentious and non-contentious inheritance in Spain and England & Wales
For more information please call 952 527014 or contact us on [email protected]