You may think you know the answer to this question. But the law, when applied, can lead to some surprising and unexpected outcomes. Because regardless of whether you make a will, your inheritance will be subject to the law.
I’m sure you know that the law fills the gap when someone doesn’t make a will. But even if you make a will, the law is applied to determine its validity, scope and any limitations.
What happens if the heir you appoint dies before you do? What happens if they die after you but before they formally accept the will, in other words, they die without having been declared your heir? What happens if you appoint a non-family member or a legal person (e.g., a foundation or association) as your heir and leave nothing to your children? What happens if somebody has an interest in invalidating your will?
All these questions are subject to the law. But here is where the doubts just begin. What law? The law where you live, your country of origin or where your property is located?
For instance, the inheritance of a Swiss national resident in Spain is governed by Swiss law. However, Swiss law can end up making Spanish law applicable. Whereas the inheritance of a German national resident in Spain is governed by Spanish law except where otherwise stated in the will.
And then there’s the fact that the applicable Spanish law differs depending on whether you live in Benidorm or Salou. The applicable tax will also differ. Even the formalities that your heirs must observe to take possession of your property won’t be the same.
So care must be taken when setting out your inheritance in a will. You must think about the formalities that the beneficiary you designate will have to go through, the costs that they will have to bear, and any difficulties they might face with other possible beneficiaries, the authorities, your creditors, etc.
So if you have property in your name, we urge you to seek professional advice and make a will as soon as possible. Your heirs will be glad you did.
Carlos Prieto Cid – Lawyer