We are finding increasingly that those who own property in Spain have made a Spanish will. This is because practically all of the literature on the subject of Spanish property points people very firmly in the direction of doing so. Clients often ask us whether it is necessary to make a Spanish will if one owns assets in Spain.
Spanish law recognises a will made lawfully in any jurisdiction. That means that if you make an English will relating to all of your worldly assets, it will include your Spanish property. The beneficiaries of your residuary estate, so that is everything other than those who will receive specific legacies, will receive your Spanish property. So, “why do I need a Spanish will?” we hear you ask. There are two principal reasons which are set out below.
The most important reason to make a Spanish will
By making a Spanish will you will be absolutely certain that your wishes will be carried out without confusion or error upon your death. This is because when you make a Spanish will you sign it before a Notary in Spain, or before a Notary Public in any other country. If you sign the will in Spain then the Notary informs the Registry of Last Wills in Madrid the date and place at which it was signed. If you sign the will elsewhere then the notarised document must be sent to the Registry of Last Wills in Madrid for the will to be registered. The original is then returned to you, whereas when you sign the will before a Spanish Notary, he or she retains the original.
If when you die you own property in Spain, or have any assets situated in Spain for that matter, then in order to administer your estate and so have the assets transferred into their name(s), the beneficiary(ies) of your estate must obtain from the Registry of Last Wills a Certificate of Last Will. That certificate will state whether you made a will in Spain, or abroad (if registered as explained in the preceding paragraph), and, if so, when and where you made it. If you had made a Spanish will signed before a Spanish Notary then one of the beneficiaries will be able to obtain a certified copy of that will. As it will have been drafted in Spanish (perhaps in double column, English and Spanish) and will take into consideration that it is to be read and understood by the Spanish authorities, it will be absolutely clear what your intentions were when you made it. Furthermore, there is no chance of it being lost, or destroyed.
What is the danger of not making a Spanish will?
The danger of not making a Spanish will and relying on a will made according to the laws of another jurisdiction, is that the person who is charged with the administration of your Spanish estate will either have to know what he/she is doing in terms of the administration of a cross-border estate, or will have to engage someone who is suitably qualified. Many Spanish lawyers will take on such a matter without having very much experience of that type of work, if any. They will rely on the Spanish Notary to guide them, whereas many Spanish Notaries have little if any experience of cross-border estates. There is a real risk that the administration of your estate will take an inordinate amount of time to deal with and that it will end up being far too complicated.
The second most important reason to make a Spanish will
The other reason to make a Spanish will is to take full advantage of the European Succession Regulation (650/2012), widely known as Brussels IV, which came into force on 17 August 2015. Brussels IV provides that, subject to a will stating to the contrary, the law that applies to one’s estate is the law of one’s habitual residence. So, if you live in England and own property in Spain when you die, English law will apply to your estate. I use English law as an example, because according to English law one has freedom of testamentary disposition; you can leave your assets to whomever you wish. However, if by the time you die you are living in Spain then, unless you have made a clear statement to the contrary, Spanish law will apply to your estate. According to Spanish law your children and your spouse have rights of forced heirship, with certain regional variations, and depending upon whether or not you make a will at all that governs your Spanish assets.
If your Spanish assets pass according to the terms of an English will, then it is arguable that you intended English law to apply to your estate. However, in order to be certain that English law will apply whatever the circumstances, it is essential that you make a Spanish will declaring that intention in the clearest terms.
What about my English will?
It is very important that your Spanish will dovetails with your English or other will, and that you receive advice from a specialist as to making any further wills. So, notwithstanding that the will needs to be signed before a Notary or a Notary Public, it is highly advisable that it be drafted by a specialist in cross border matters.
At E&G Solicitors in Spain we are extremely well placed to advise and assist you in relation to your Spanish will, as well as in relation to Spanish estate planning.
If you have any questions about whether you need to make a Spanish will, or if you would like a free initial consultation, please contact us. You can reach us by email at firstname.lastname@example.org by telephone on 020 3478 1420 or by completing our contact form.