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Case study: EU Succession Regulation and no wills

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Mark and Elizabeth are a British married couple, from London where they live most of the time. They have 4 adult children. They sold their family home and with the proceeds of sale they bought a flat in central London as joint tenants and a villa in Marbella where they spend their summer holidays. Elizabeth is concerned that Mark is reluctant to make a Will. Mark reassures Elizabeth that all their assets are held jointly so that when he dies everything will pass automatically to her. Elizabeth is not entirely convinced and she needs advice as to what happens in the event of their deaths.

Mark may be right in relation to their UK assets (assuming that the property is held as joint tenants and their bank accounts are also in joint names) and therefore Elizabeth should not be too worried.

However, the situation is totally different in relation to the Spanish assets. In Spain, there are no joint tenants, property is always held as tenants in common. On Mark’s death, his share will not pass automatically to Elizabeth, the European Succession Regulation will determine what law applies to his Spanish assets. If on Marks death he is habitually resident in England, English law will apply to his estate. However, since he has not made an election for English law to apply, there would be a renvoi to Spanish law to deal with the immoveable property in Spain. As a result, Spanish law will apply and under Spanish law Mark’s share would be distributed between their 4 children subject to a life tenancy in Elizabeth’s favour.

December 2018
Álvaro Aznar Azcárate
Solicitor and Spanish Abogado
Sykes Anderson Perry Limitedspa