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Inheritance

Inheritance

1. What happens if there is no will?

If a deceased person has assets without leaving a will, his assets will be distributed in accordance with the law. But if the person is a foreigner and some of the assets are situated in Spain, the question arises: In accordance with which law, the Spanish or the one of his home country?

The answer to this question depends on the nationality. Spanish law says that the assets of a foreign citizen should be distributed according to the inheritance laws of his home country. For instance Swedish inheritance law agrees with this and states that the inheritance of a Swedish citizen should be done after Swedish law, even if that Swede was living abroad and the assets are situated there. Norwegian inheritance law has another position, and rules that the distribution of assets of a Norwegian living abroad should be done in accordance with the laws of the country he was living in. And English law says that the distribution of real estate located abroad must be done according to the law of the country where the property is situated. So for the citizens of some countries we have diverging rules for the assets in Spain.

Spanish legislation contemplates this situation, technically called "conflict of laws" in articles 9-12.2 of its Civil Code. It states that the law applicable to foreign inheritances is the national law of the deceased. As far as the English legislator is concerned, the law of the domicile for movables and the law of the place where they are situated for inmovables (ley de situs) apply. Domicile can depend on two factors: origin and choice. For the last factor two conditions are required: residence and intention. You may have become domiciled in Spain by taking a residence permit there, but if you have in any way stated your intention to eventually go back to the UK, English courts may consider that you are still domiciled in your home country. Domicile is a very complex subject and in case of doubt a professional opinion should be obtained.
And for a Norwegian the situation becomes the following: If he has left Norway and take residency in Spain, his assets should be distributed in accordance with Spanish inheritance laws. But if he is a non-resident owner in Spain, his Spanish property will be distributed in accordance with Norwegian law, even if inheritance taxes for immovable assets must be paid to the country where the asset is situated.

 

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