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Jim's Guide - Spanish Wills

Posted: Tue Dec 25, 2018 8:26am
4 replies667 views3 members subscribed
jimtaylor

jimtaylor

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Location: Mudamiento

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(NB: If anyone replies, please do not click 'Quote' at the bottom of this post, as that will include all of the guide in your reply. Instead, just enter your reply in the 'Reply' or 'Reply to this topic' box at the bottom - thank you.)


INHERITANCE UNDER SPANISH LAW

When I'm writing my guides, I normally go into full detail in order to cover all eventualities that might be applicable to my readers. In this case, you'll be pleased to know that I don't need to do that.

In the UK, as a British national you can leave your estate to whoever you wish. That isn't the case in Spain, as there are forced heirship laws which determine who benefits when a Spanish national dies, and a will can be overturned if it does not comply with the regulations. When someone dies without leaving a will, then the law determines who get what. The law is complicated, and I'm not going to go into details; I just want you to be aware of the potential problems.

In general terms, one third of an estate is divided between surviving children or grandchildren, even if they're children from a previous marriage. The surviving spouse has a life interest (usufruct) in one third, and the children inherit this when the spouse dies. One third can be freely disposed. If there aren't any children, surviving parents or grandparents receive a third if there's a surviving spouse, and half if there isn't. So, as you can see, a Spaniard can't leave everything to his spouse. The preceding is just an overview, and there are a lot of variations on the general theme.

If a British national resident in Spain dies without leaving a will, then the estate will be distributed in accordance with Spanish law.

If a British national resident in Spain does leave a will, and that will doesn't specify which law they wish to be applicable to succession then, again, the estate will be distributed in accordance with Spanish law. The crucial point here is that you can choose whether you wish UK or Spanish law to apply, but you must state this in your will.

There are some curly words in the EU regulation that could be invoked by your successors to try and get around the absence of the applicable law clause, but this might not succeed, and there's no need to cause your successors the hassle of trying the case.

The ability to make the choice is enshrined in EU Regulation 650/2012, which came into effect in 2015. This will still be applicable post-Brexit, as it's the country of residence that matters - not the resident's nationality.

Anyone who has more than one nationality can choose the country whose law will be applicable.

For non-resident property owners, it isn't necessary to include a clause regarding the law applicable to succession, as the EU regulation states 'the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death'. Non-resident property owners who have already made a will without the succession law clause do not therefore need to make a new will. If you haven't yet made your will, then you might as well include the clause - you never know, you might move to live in Spain full time, and wouldn't then need to make a new will.

It's an unfortunate fact of life that some people develop Alzheimer’s or other types of mental problem. If such a person hasn't made a will, it's important that they do so whilst they're still 'of sound mind', because they won't be allowed to make a will once their condition deteriorates.

Although you can choose the law applicable to succession, you can't choose where your inheritors will be charged tax on their inheritance. The Spanish tax man will have his day! Unlike the UK system, in Spain it isn't the deceased's estate that pays any tax due - it's the person who inherits that estate, and they can't take ownership of the asset until the tax has been paid. I'll do a guide on that topic when I've the time.

TYPES OF WILL

I'm including this section simply for completeness, as there are several types of will that can be made in Spain, but the majority of people will only use the first type.

Testamento abierto:

This is an open will, and is the most used form. You tell a notary or lawyer what you require in the contents of the will, and that person prepares it for you. If you aren't fluent in Spanish, then the will is prepared in both Spanish and English. It helps to have a notary who is fluent in English. In the early days, before we knew better, we had our will prepared by a lawyer. The notary, on inspecting the will, required one of the English paragraphs to be altered, as it wasn't a good enough translation.

You sign the will in front of the notary and it is witnessed; he keeps the original and gives you a copy. The notary reports details to the central registry (Registro de las Últimas Voluntades) in Madrid, where it is given a certification number. When you die, and before the will can be executed, a check is made of the central registry to see if you left a will. This check is necessary even if no will has been made.

Testamento cerrado:

This is a closed will and is confidential. You write the will without anyone knowing the contents and place it in an envelope. You can seal the envelope before going to the notary, or seal it in front of the notary. You declare to the notary that the envelope contains the provisions you wish to apply after death, whether you have written it yourself, and whether you have signed it. The notary and five witnesses sign the envelope. You can retain the envelope yourself, pass it to someone else for safekeeping, or leave it with the notary. The notary reports details to the central registry.

Testamento ológrafo:

This is a holographic (hand-written) will. It has to be entirely hand-written, signed and dated, and can be written in English. It doesn't need witnesses or the involvement of a notary. This type of will obviously means it is completely confidential, and it can be kept anywhere. The problem is that it can go missing, or after death the holder or finder of the will could destroy it if they don't like the contents.

Another problem is that after death the will has to be proved genuine in front of a judge, who may require that the handwriting be authenticated as genuine by close relatives. If the judge is satisfied that the will meets legal requirements, it can be registered as such with a notary, and the will can then be executed.

Testamento de viva voz:

This is a verbal will, made in the presence of five witnesses. After death, the witnesses have to testify to a notary what are the wishes of the deceased. The notary then prepares a written will, which can then be executed. I understand that this type of will was originally only allowed for those facing imminent death, but that Valencian law may have been amended to broaden the scope.

MAKING A WILL

A Spanish will can include your assets in the UK, but this would create problems and delays for your inheritors. It would have to go through the probate process in Spain, be translated if necessary and notarised and have the Hague Apostille stamp, and it would then have to go through the probate process in the UK, all of which adds to the cost and delay. The same situation applies if you make a will in the UK which includes assets held in Spain. It is much better to make a Spanish will covering only your assets in Spain.

As I've said before, unless there are any complicated matters to deal with, you don't need a lawyer and can go direct to a notary:

Jim's Guide - Wills for less than €60

Make sure that your Spanish will doesn't conflict with your UK will. For example, a UK will usually includes words like 'this is my last will and testament' or 'this will revokes all previous wills'. If you just included such wording, and you had a Spanish will dated prior to the UK will, then the UK will could be regarded as nullifying the Spanish will. Your UK will needs wording such as 'This will covers only my assets held in the UK' and 'This will revokes any previous wills related to my assets held in the UK'. Similarly, your Spanish will needs wording like 'This will covers only my assets held in Spain'.

Be aware that it is not normal practice to name an executor (albacea) in a Spanish will and, even if you do, that executor would not have the same powers as an executor to a UK will would have.

The will is in two columns, one in Spanish and the other in English. Before signing it, make sure that it correctly details your intentions.

THE CENTRAL REGISTRY

As I said earlier, your notary will lodge your will with the Central Registry, and they will allocate a certification number. After death, a search must be made in the Central Registry to find out if a will has been registered, and written confirmation of this will be issued.

As well as being a legal requirement, this is useful if your will can't be found by your inheritors, as the Central Registry will confirm if a will has been registered, and provide details of the notary who lodged it with them. This then enables the will to be obtained from that notary.


Gloriajean

Sun Dec 29, 2019 3:54pm

Posts: 38

Location: Torrevieja

1 helpful posts

Posted: Sun Dec 29, 2019 3:54pm

Where do i get a spanish will from for 60 euros

jimtaylor

jimtaylor

Original Poster

Legendary helpful member

Sun Dec 29, 2019 4:24pm

Posts: 4667

Location: Mudamiento

6294 helpful posts

Posted: Sun Dec 29, 2019 4:24pm

Jim's Guide - Wills for less than €60


Gerry59

Tue Jan 7, 2020 9:16am

Posts: 39

Location: Torrevieja

15 helpful posts

Posted: Tue Jan 7, 2020 9:16am

Where in Torrevieja central can you recommend I make a will ?

Thank you.

jimtaylor

jimtaylor

Original Poster

Legendary helpful member

Tue Jan 7, 2020 9:24am

Posts: 4667

Location: Mudamiento

6294 helpful posts

Posted: Tue Jan 7, 2020 9:24am

Hopefully someone else will answer you, otherwise you'll just have to ask the various notaries. I only go to Torrevieja if it's essential to do so, and never have got to know it.

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