Any foreign national, whether from a European Union member state or a non-EU country, who resides in Spain, will be subject to Regulation (EU) No 650/2012 of the European Parliament and of the Council, of 4 July 2012. This Regulation, in force since 17 August 2015, governs the jurisdiction, applicable law, recognition and enforcement of decisions, acceptance and enforcement of authentic instruments in matters of succession “mortis causa”, as well as the creation of the European Certificate of Succession.
Application of the Regulation to foreign residents
Thus, even in the case of a Brazilian citizen, for example, if they legally reside in Spain, they will be subject to this European Regulation.
According to Article 21 of the Regulation, the law applicable to the succession will, by default, be that of the place of habitual residence of the deceased at the time of death, unless they have made a will in which, by means of a professio iuris, they have chosen the law of their nationality as the applicable law.
Importance of the professio iuris in the will
The possibility of choosing the national law in the will is particularly relevant if the person is a national of a country whose legislation provides for forced heirship rights for descendants or ascendants, with mandatory shares of the estate that must be respected.
Therefore, it is highly advisable to seek legal advice when making a will, especially in cases of dual nationality, assets located in different countries or international residences. Only in this way can effective succession planningbe ensured, in line with the post-mortem wishes of the testator and with the tax implications that may arise.