I have a property in Majorca Spain within an estate I am administering. There is no Spanish Will and the deceased leaves a surviving spouse and two children.
There is an English Will with no choice of law mentioned in it for the purposes of the new EU directive.
My question is, to whom and in what shares does the Property pass?
Assuming the English Will is not expressly restricted to English assets, it should also cover Spanish assets.
Assuming the deceased is English, Spain should accept the will as Art 27(1)(b) of the Directive provides that a will “shall be valid as to its form” provided it complies with the law of nationality of the deceased.
Assuming the deceased was habitually resident in England, the substance and devolution would be subject to English law as well under the general rule in Art 21. If not, but the will makes reference to English statutes you can argue that an election was made under Art 22(2) (“demonstrated by the terms of such a disposition”) and then the substance of the will would also be governed by English law (Art 24(2)).
If not, you would need to look at the country of habitual residence and Spanish law in more detail.
Osborne Clarke LLP
Well, you have to take a look at the habitual residence at the time of the decease, a possible choice of law expressed in the will if that’s the case- I have my doubts about a tacit choice, probably better to look at it as a last resort.
Then you have to take into account that Spain is a plurilegislative nation, you should look into some details of Balearic law if eventually that’s the law to be applied-probably not.
Relatedly, heirs need to check their obligation to pay inheritance tax (ISD) and the tax over the increase of value of urban lots (IIVTNU), the first is autonomic- formerly you would have the general tax with less deductions applied for foreigners but the CJEU turned that down and Spain had to fix the concerned regulation- and the second depend on local council. Both are to be paid in the six months after the decease with the chance to apply for a six month extension.
When did the deceased i.e.? If after 17 August 2015, then it would appear that Brussels IV would apply, and the law of where the deceased was habitually resident will apply to the succession of the Spanish property. This is an area which is fraught with potential conflicts and as mentioned, the advice of a Spanish Majorcan lawyer who is familiar with Brussels IV, should be sought.
Peter Double / Probate Resealing Services