Globalization has profoundly transformed the way people organize their wealth and family life.
It is increasingly common for a citizen to own property in several countries, reside permanently outside their country of origin, or even hold multiple nationalities.
In this context, el will It has become an essential tool for estate planning.but also a recurring source of legal problems when succession is not planned with due anticipation and technical rigor.
One of the most delicate aspects is the correct determination of the law applicable to the successionThe error does not usually lie in the testator's lack of intent. but in the false belief that such will, by itself, is sufficient to order the inheritance.
Notarial, registry and judicial practice demonstrates the opposite: an incorrect, incomplete or non-existent choice of the applicable law can render the will ineffective and generate unwanted patrimonial and family consequences.
What is the legal framework for international successions?
Since August 17, 2015, Regulation (EU) No 650/2012 has been the cornerstone of international succession law in Spain and in most Member States of the European Union.
Its stated objective is to strengthen legal certainty and predictability by subjecting succession to a single applicable law.
The general rule is well known: succession is governed by the law of the State of the deceased's habitual residence at the time of death.
However, the Regulation itself introduces a fundamental corrective tool: la professio iuris, ie the possibility that the testator may expressly choose as applicable law that of his nationality, whether that which he holds at the time of the choice or at the time of death.
In Spain, this European scheme is superimposed on a particularly complex reality: the coexistence, along with the common law, of several regional or special civil laws.
El Article 36 of the Regulation refersIn these cases, the internal rules of conflict apply, which requires identifying not only the applicable State, but also the specific territorial unit whose succession regulations are competent.
Lawyers specializing in contesting international wills in Spain
Challenging an international will requires rigorous legal and evidentiary analysis. This firm only handles probate cases with a solid foundation.
What is the most common mistake in international wills?
The most common mistake in the international wills It is, quite simply, not choosing any law.
Many testators trust that a generic reference to nationality or to "personal law" is sufficient.
However, The Regulation requires a clear and express choice or one that can be unequivocally inferred from the wording of the will.
The consequence of this omission is automatic: The law of the deceased's habitual residence at the time of death applies, regardless of their expectation or intention.
In the case of residents in Spain where there is some international element, this has meant, in numerous resolutions of the DGRN/DGSJFP, the application of Spanish civil law and, within it, of a specific regional law, such as Galician or Catalan, with results radically different from those foreseen by the testator.
This automaticity is not a defect of the system, but a direct consequence of the lack of foresight.
The problem arises when the freedom to make a will is confused with the freedom to choose any law, something that the Regulation does not allow.
Usual residence is not always the fairest criterion
Related to the above, a second common mistake appears: assuming that habitual residence is always the fairest or most appropriate criterion.
The European legislator himself It warns that habitual residence must be identified based on a comprehensive assessment of the circumstances of the deceased's life, and not as a mere administrative fact.
However, in practice, habitual residence becomes a mechanical rule that ignores the personal reality of the testator.
Thus, people with a relatively recent residence in a country other than their nationality find their succession subject to a law with which they have hardly any cultural or legal link, which can translate into the imposition of legitimacies, reservations or limitations on the freedom of disposal unknown to them.
Legal scholars have criticized this indiscriminate use of habitual residence, emphasizing that the Regulation provides sufficient instruments to prevent arbitrary solutions.
The problem is not the rule, but its misuse.
Ignorance of Spanish regional law
In the Spanish context, one of the most frequent errors, but one with the greatest practical effects, is ignoring the existence and scope of regional civil rights.
For many testators with foreign ties, Spain is perceived as a homogeneous legal system, when in reality very different succession systems coexist.
The consequence is especially serious when, due to a lack of choice of law, Spanish law is applied and, within it, one of the regional or special civil laws.
When the Regulation leads to Spanish law, Article 36 refers to the rules of internal conflict to determine whether common law or one of the regional laws applies..
At this point, specific difficulties arise with foreign taxpayers, because the internal Spanish connection often rests on civil neighborliness (an institute not applicable to foreigners), which has generated doctrinal debate and solutions that are not always uniform in practice.
The differences in matters of forced heirship, succession agreements or freedom of testation can completely alter the planned succession scheme.
Case law and administrative doctrine have insisted that this result is not exceptional, but fully in accordance with the Regulation.
The mistake lies in not anticipating it or integrating it into succession planning.
What are the consequences of errors in choosing the applicable law?
Errors in the choice of applicable law are not merely theoretical.
Its consequences These results in conflicts between heirs, delays in the processing of the inheritance, and a significant increase in legal costs.
It is not uncommon for provisions clearly intended by the testator to be rendered ineffective, generating a feeling of injustice that is difficult to remedy.
From a practical point of view, difficulties also arise in the registration of property, especially when Spanish authorities have to interpret wills executed in accordance with foreign laws without a correct determination of the applicable law.
Legal uncertainty is thus transferred from the family sphere to the institutional sphere.
Lawyers specializing in contesting international wills in Spain
Challenging an international will requires rigorous legal and evidentiary analysis. This firm only handles probate cases with a solid foundation.
Conclusion: planning as a duty, not as an option
The experience accumulated since the entry into force of Regulation (EU) No 650/2012 allows us to affirm that errors in the choice of the applicable law are not due to regulatory gaps, but to poor planning.
The system offers clear tools to ensure predictability and respect for the wishes of the deceased, but it requires conscious and technically informed use.
Choosing the correct applicable law in a will with international elements is not a mere formality, but a structural decision that conditions the entire succession.
Ignoring it is tantamount, in many cases, to leaving the fate of one's estate to the whims of the law. In an increasingly globalized world, prudent inheritance planning is no longer just a recommendation: it is an unavoidable legal necessity.
RRYP Global, Lawyers specializing in contesting international wills in Spain.
