EU Regulation 650/2012 of 4 July 2012, which regulates inheritance by death, is applicable to most of the countries of the European Union. This is a major step forward for European citizens, making it possible to choose the law applicable to the succession of a person, and not applying the previous rigid criterion of the nationality of the deceased, which caused headaches for those who had established their residence for a long time in another country but did not have the nationality of that country.
This was especially the case for Spaniards with a residence abroad but with real estate in Spain. As well as the opposite case of foreigners with properties in Spain.
However, it is important to be clear about the inheritance of non-residents. There are many doubts on the part of the heirs as well as on the part of the persons who wish to leave their assets insured, which is why it is essential to have good legal advice.
Despite this improvement in the law, the issue is complex.
The individual has a choice
For example, a person of Spanish nationality residing in France can choose to have his or her inheritance governed by Spanish or French law. But in case of not stipulating it, the law of the habitual residence will be applied.
But the law will apply to the whole succession, regardless of where the assets or heirs are located.
All this applies when the connecting states are members of the EU.
Aspects that are not regulated by the law of the chosen country.
There are a number of aspects that are of great importance when planning an inheritance and which are excluded from the choice made or, in the absence of a choice, the criterion of habitual residence does not apply either.
These aspects are:
Inheritance tax: Inheritance tax will be regulated by the country where the heirs who must pay the tax reside and also by the country where the assets are located. Therefore, the heirs, as taxpayers, will pay the tax to the Treasury that corresponds to them by personal obligation and, also, by the location of the assets, without prejudice to other taxes that may be due in the State where the real estate is located as a consequence of the transfer of the property.
Matrimonial property regime, which, like marital status, is solely a matter of the national law of the testator.
Civil status and capacity of natural persons, same as above.
Dissolution, extinction of companies and legal persons is also excluded.
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