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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Legal tip 531. Law is above any testament
18 May 2011 @ 13:52

An explanation, which I think will clarify:


UK will´s disposition apply MAINLY becuase Law applicable to his inheritance allow this. UK Law applies due to having both UK nationality and assets,  and UK Law allows this will to display its effects.

If his last will was the UK one and this intended to deal with assets worldwide, but Inheritance applicable Law did not allow the dispositions of the will, this would not be applicable.

For instance:  the deceased leaves a will naming an NGO as his heirs. The deceased just have real estate assets in Spain and spanish residency. He has UK nationality and will. This will does not apply.

Why? Becuase this is not respecting his legal heirs according to Spanish Law, the UK will does not apply.

Why? Becuase Law of his nationality ( UK Law) forward the inheritance to Spanish Law ( due to residency and estate assets) and Spanish Law has the restrictions of legal heirs.

In short and clear terms.:a will is a document which at the end will be  always checked to be respectful with applicable Inhieritance Law.

In even shorter and simpler terms: Law is above testament.

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1 Comments

Vicente said:
19 May 2011 @ 18:57

My partner is a British National and I am a Spanish National (planning to marry). We jointly own a property in the UK and another in Spain. We have recently done a will in Spain leaving everything to each other.

I have brother and sister and my father who is still alive and they live in Spain. I was advised that my father is entitled to 'la legitima' (50% if I die now, 1/3 if I die after we marry).

The property in the UK was bought as 'joint tenant'. As you know, 'joint tenant' is a legal term in UK law meaning that there is not need to leave a will in order for the surviving owner to inherit the property. The property will automatically be inherited by one or the other when we die, regardless whether we are married or not, there is a written will or not, and of course, provided that we continue being registered as joint tenants!

Questions:

1- Are my brothers entitled to 'la legitima' too?
2- Will my father be entitled to 'la legitima' for the property in the UK, although we have bought the purchase as 'joint tenants', or will UK law apply on this particular asset?
3- Will my partner's mother, brothers and sister be entitled to 'la legitima' for the property we jointly own in Spain.
4-Will my partner needs to make another will in the UK for his UK assets? (this was already included in the Spanish will)
5-Will the law of each national be applied individually, regardless of the location of the assesses? e.g. my father will be able to claim 'la legitima' for the property in the UK, and my partner's mother for the property in Spain? In other words, the law applied is that of the national of the decease, or that of the location of the asset? Thank you!

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