A Basic Guide for Cross-Border Succession

A Basic Guide For Cross Border Succession
11
Dec

Table of Contents

  1. Introduction
  2. What is International Inheritance?
  3. Key Legal Frameworks
    • EU Regulation 650/2012
    • Bilateral Treaties and Non-EU Countries
  4. Practical Steps in International Succession
    • Gathering Information
    • Jurisdiction and Applicable Law
    • European Certificate of Succession (ECS)
    • Recognition of Foreign Wills and Judgments
  5. Critical Issues in Cross-Border Succession
    • Forced Heirship vs. Testamentary Freedom
    • International Inheritance Taxation
  6. Special Considerations
    • Foreign Property Ownership in Spain
    • Treatment of Trusts
  7. Useful Government and Legal Links
  8. Conclusion: Expert Recommendation

1. Introduction

International inheritance, or cross-border succession, occurs when (i) the deceased owned assets are located in more than one country, (ii) his/her last habitual residence differs from his/her nationality or (iii) heirs or assets are located in multiple jurisdictions. In such cases, various laws, courts and tax authorities may become involved in a single inheritance process, complicating the determination of the applicable law, competent court and resulting tax obligations.

Understanding how international inheritance works is essential to avoid legal conflicts, take
advantage of legal options and fully comply with tax duties both in Spain and in other involved
countries. This basic guide, designed for those dealing with cross-border succession involving
Spain, sets out the core legal framework, practical steps and key challenges facing the planning and
administration of an international inheritance. Proper planning and expert advice are critical to
protect the legal rights of the heirs and to ensure the legality of the process.

2. What is International Inheritance?

International inheritance (cross-border succession) refers to any situation in which:

  • The deceased owned assets are in more than one country;
  • The deceased’s last residence differs from his/her nationality;
  • Heirs or assets are located in multiple jurisdictions.

Understanding international inheritance is essential because several laws, courts, and tax authorities
may be involved, making it necessary to determine the applicable law, jurisdiction and tax
obligations.

EU Regulation 650/2012

For international successions within the European Union (except Denmark and Ireland), the main
reference is:

  • Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement
    of decisions in matters of succession.

Regulation Full Text

Key Points:

  • Jurisdiction: The courts of the deceased’s last habitual residence usually have authority.
  • Applicable Law: Generally, the law of habitual residence applies, unless a choice of law
    (national law) is specified in the will.
  • European Certificate of Succession (ECS): A standardized document, recognized across
    EU member states, to establish inheritance rights. EU Justice Portal: Succession

Bilateral Treaties and Non-EU Countries

  • Spain has bilateral treaties on inheritance tax with France, Greece and Sweden. List of
    treaties (BOE)
  • For other countries, private international law and local statutes apply.

4. Practical Steps in International Succession

Gathering Information

To facilitate the inheritance process:

  • Obtain the death certificate
  • Retrieve all relevant wills (see Spanish Registry of Wills)
  • Identify and value assets and their location
  • Gather heir identification

Jurisdiction and Applicable Law

  • Was the deceased an EU national or resident?
  • Is there a choice-of-law clause in the will?
  • Where are the heirs and assets?

For country-by-country details:

  • EU e-Justice Portal: Succession by Country

European Certificate of Succession (ECS)

The ECS can be used to easily prove inheritance rights throughout the EU.

  • Learn more and access forms:
    EU ECS Overview
    ECS Application Form

Recognition of Foreign Wills and Judgments

  • The EU Regulation simplifies matters within most of the EU.
  • Outside the EU (or in complex cases), recognition depends on bilateral treaties or national
    law.

International will registers:

  • European Network of Registers of Wills (ENRWA)
  • Spain: Certificate of Last Wills

5. Critical Issues in Cross-Border Succession

Forced Heirship vs. Testamentary Freedom

Some countries enforce ‘forced heirship’—legal shares for relatives—while others allow complete
freedom of testation.

It’s vital to be informed about which system applies as it greatly affects inheritance outcomes.

International Inheritance Taxation.

Inheritance tax (ISD in Spain) often depends on:

  • Where the deceased lived,
  • Where assets are located,
  • And/or where heirs reside.

Spain:

  • Residents pay inheritance tax on global assets; non-residents are taxed on Spanish assets
    only.
  • Non-residents can generally use the same tax-regional reductions and exemptions as
    residents (in compliance with the European Court of Justice ruling of 2014).
  • Only three specific inheritance tax treaties exist (France, Greece, Sweden).
  • For detailed Spanish rules: Spanish Tax Agency – ISD

Other Practical Points:

  • Foreign Asset Disclosure: Residents must report foreign assets over €50,000 using
    “Modelo 720”.
    Modelo 720 Info
  • Double Tax Relief: Relief for foreign taxes paid is sometimes available.
  • For more about tax filings and forms, consult your local tax authority or a specialized
    lawyer.

6. Special Considerations

Foreign Property Ownership in Spain

Foreigners with Spanish assets often make a Spanish will limited to Spanish assets..

Following EU Regulation 650/2012, it is advisable to consult an expert to ensure proper
coordination, as only one succession law may apply globally unless otherwise specified.

Read more: e-Justice Portal – Wills Registers

Treatment of Trusts

Spain does not recognize common law trusts for inheritance purposes. Assets in trust may be
considered, for Spanish law and tax purposes, as directly owned by the settlor or the beneficiaries.

7. Useful Government and Legal Links

8. Conclusion: Expert Recommendation

International inheritance law is multi-layered and potentially complex. Proper legal advice is
essential to:

  • Determine the correct applicable law and jurisdiction;
  • Coordinate wills to avoid legal conflicts in multiple jurisdictions;
  • Accurately assess and fulfill inheritance tax obligations;
  • Use EU tools like the European Certificate of Succession wherever they apply.

Plan succession proactively and contact an expert for personalized solutions. For further
information or a private consultation, reach out to:

José Rodríguez Díaz
Partner
info@inheritanceinspain.com
+34 626 06 94 48

DISCLAIMER

This article is provided solely for informational purposes and reflects the personal opinion of the author. It does not constitute legal
advice nor does it create any attorney-client relationship.
Readers should not act upon any information contained herein without seeking professional legal advice regarding their individual
circumstances. The author and publisher accept no liability for actions taken based on this article.