Update 12 September: For reasons I don’t understand, I’ve had five emails today all about this issue. I posted the information below on 15 July, so thought it best just to update this post for people to see. Hopefully it is self-explanatory.
Original post 15 July: I updated the Basic Paperwork page some time ago with the information that the Wills of foreigners who are fiscally resident in Spain would need to contain a specific clause of preference about which national law should apply to their affairs in the event of their death: most British people, for example, would want British law to apply. The requirement for a direct statement of preference is a result of EU regulation 650/2012 which comes into force on the 17th of next month.
Whilst new Wills have had this clause in them for some time in readiness for the application of the regulation, it was not clear to me that existing Wills would need to be amended, but I have now had legal opinion from a notary that existing Wills – those drawn up before the clause was added routinely – should be redrafted to be sure that British law will apply.
To be specific:
- anyone making a new Will will find that this clause is automatically inserted;
- anyone with an existing Will drawn up in the last year or so should check their Will to ensure that the clause was inserted;
- anyone with an older existing Will, or a recent one without the clause, should get a new Will drawn up if they wish to ensure that British law applies to their Will in the event of their death.
Please note that this applies only to those who are resident for tax purposes in Spain. Non-residents do not need to be concerned about this because under the EU regulation the law applicable to their Wills will be that of the country in which they are resident – i.e. the UK.