This article applies only to Wales and England nationality probates that are signed in Spain. We felt that we should clarify the English inheritance situation in Spain as now it can be quite complicated.
Law of Nationality
Prior to recent Supreme Court Judgements, we and other lawyers always had the same advice when drafting Spanish Wills for English and Welsh clients. That they should have a clause inserted in the Will stating that they wish to be governed by the law of their nationality. So that they can freely dispose of assets in Spain how they wish, as opposed to the Spanish law of enforced heirs.
However, things change, and now unfortunately if a Spanish Will has been written like this for English clients, sometimes if can be challenged. That does not mean that it can also still be correct. In some instances, despite the clause, Spanish law must be used. It is about connections to a place. The Supreme Tribunal in Spain has now ruled several times that despite someone selecting English Law in a testament, if you are resident in Spain and have a stronger connection to Spain, and no properties in UK, then the Law applicable is Spanish, for example.
Does It Matter?
Yes, it can do. The law used for an English (England and Wales) inheritance situation in Spain matters depending on the family circumstances. Spanish Law has enforced inheritors which means the children of the deceased inherit in equal parts. Sometimes this is what the deceased wanted. However, this can cause a problem when there is a spouse who it was intended would inherit, but unfortunately Spanish law has to apply, which means the children inherit instead.
Legal advice can be needed in advance.
Alternatively, the children may wish to contest a situation where the spouse has inherited and they feel it should have been them.
Joint Ownership of Property
Another important point is that in Spain when you own property, if you die, and there is another joint owner or owners, your share does not pass to them immediately. There has to be a Spanish probate and the assets of the deceased pass to the next of kin, as dictated by Wills and Probate (and/or the law governing next of kin). Property from a husband/wife does not pass to the other spouse as often in the UK when jointly owned. Therefore a properly drawn up Spanish Will and legal advice is essential.
Our last point relates to step-children. When someone has step-children an inheritance situation can become very complicated because of the above. We have seen it many times. You should take legal advice on what would happen in the even of your death.
We are here if you have any enquiries regarding your Wills or probate situation on your death.