But, WHY IS SO IMPORTANT TO IDENTIFY WHICH LAW IS APPLIED IN THE INHERITANCE?.-
Because there are big differences between the Spanish and the other laws from other countries regarding the inheritance. The most important difference is that the Spanish have the figure of the “Compulsory” or “Obligatory Heirs” (Herederos Forzosos), which means that the testator cannot dispose from the full inheritance freely, and in whatever circumstances, he must leave the 66% of his inheritance for determinate persons called Obligatory Heirs (mainly descendants and spouses).
This system of “Obligatory Heirs” is really common in countries like France, Belgium, Switzerland, Germany, Norway, Denmark, Sweden, Iceland, Norway, and Russia, in which the testator has the obligation to leave a percentage of his/her assets to determinate inheritors (usually surviving spouses and children). But, this system is totally different from other nationalities like UK, USA, etc.
In this way, for example, UK Inheritance law allows the free disposal of assets, transferring will total freedom the inheritance set at the entire wish of the person. So, the testator has total freedom to leave whatever he/she wishes, to whoever he/she wishes.
With this system, it could happen that an UK citizen, with two sons, and with a property in Spain, can make a Spanish Will leaving his/her property to his/her friend, and that this last Will cannot be executed because, if Spanish laws are applied, then the 66 % of that property should be transferred to his sons, and only the remaining 33 % to be inherited by the testator’s friend.
| THIS SYSTEM CREATED BIG CONFUSIONS AND MISUNDERSTANDING IN THE INHERITANCE OF EUROPEAN CITIZENS.
REGLAMENT 65072012: THESE CONFLICTS AND CONFUSIONS ARE ALREADY SOLVED BETWEEN EUROPEAN CITIZENS WITH A LAW APPROVED , AND THAT, ALTHOUGH SOME COUNTRIES STILL HAVE NOT SIGNED THEM, LIKE UK OR DENMARK, WILL BE OF APPLICATION IN SPAIN.
This law, in simply words, gives 2 options :
Option 1: YOU CHOOSE: – The law which will regulate the inheritance of a deceased will be the one chosen by the testator. It means that YOU CAN CHOOSE the LAW that you wish to regulate your inheritance. The perfect way to do it is to expressly confirm on your Will the law that you wish to regulate your inheritance.
So, if you are French, British, German, Norwegian, etc, you can decide on your Will or Probate which is the law you want to be regulated after your decease.
Option 2: THE COUNTRY OF PERMANENT RESIDENCE: If you have not stipulated on your Will anything in relation with the law that you wished to regulate your inheritance, then, this law will be the one in which you had you residence during the last 5 years.
In cases in which you have been living in different places, and/or the permanent residence is not clear, then, the law will be the one from the country in which you had the strongest connection during all your life.
This Law, although approved on August 2012, it entered in force on the 17th of August 2015. So, after that date, inheritances where the deceased made a testament in Spain, or had the permandent residence, are regulated by this new law.