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The process of making a Spanish will

As the owner of property or assets in Spain, you will most likely be considering making a Spanish will.  It is certainly advisable if you own a property in Spain to make a Spanish will.  We are often asked about the process of making a Spanish will, and how it differs from making a will in England & Wales.  Here we guide you through the process of making a Spanish will.  

How does a Spanish will differ from a UK will? 

If you have made a will in your own jurisdiction then you will be familiar with the legal requirements for making a will there.  In England & Wales the rules are clear.  For your will to be legally valid, you must (i) be 18 or over, (ii) make it voluntarily, (iii) be of sound mind, (iv) make it in writing, (v) sign it in the presence of two witnesses who are both over 18, and (vi) have it signed by your two witnesses, in your presence and in the presence of each other.  

Your will should set out who you want to benefit from your will, who should look after any children under 18, who is going to sort out your estate and carry out your wishes after your death (your executor), and what happens if the people you want to benefit die before you.

You will then need to keep the will safe, as it will be very important for the executor to be able to produce the original will in order to administer your estate upon your death.  You may choose to keep your original will in a filing cabinet or safe at home, or perhaps at your solicitor’s office, or perhaps in a safe box at the bank.  In any event, it is that document which will need to be used when you die.

There are many anecdotes of wills going missing, never appearing, or being destroyed.  In the vast majority of cases that does not happen, but the risk is there.

What is different about a Spanish will?

If you own assets registered in your name in Spain when you die, then in order for the beneficiaries of your Spanish assets to inherit them they will need to show whether you made a will in Spain.  Conveniently, when you make a Spanish will the fact that you have done so and the Notary (in Spain) or Notary Public (outside of Spain) before whom you have signed your Spanish will is communicated to a central registry of wills in Madrid.  

Upon receipt of a death certificate evidencing your death (duly legalised and translated if necessary), the Registry of Last Wills will issue a certificate of last will, stating whether or not you made a Spanish will and the name of the Notary before whom you signed it.   One of your close family members or any of the named beneficiaries can then obtain a certified copy of your Spanish will from the Notary who is then holding your Spanish will, if you made it in Spain.  

Whereas the Notary before whom you signed your will may have retired, moved on or died, another Notary in the same municipality will be holding the original will, by this time bound into a volume of original documents signed before the same Notary during the year in question.  It follows that by making a Spanish will you do not have to store your will anywhere safe, as it does not leave the building where you sign it, other than to travel a few hundred metres to another Notary’s office.

What information do I need to provide when making a Spanish will?

When making a Spanish will, in addition to the questions that you will have to consider as set out at the beginning of this article, you will need to state (i) your marital status, (ii) your occupation, (iii) the first name of each of your parents (including your mother’s maiden name) and whether each of them is alive or deceased, (iv) the name of each person to whom you have been married, (v) the name of each child you have had and the identity of the other parent, and (vi) the law of which country you would like to apply to your Spanish estate when you die, either the law of your country of nationality, or that of the country in which you are habitually resident .  Further, a wife must be identified by her maiden name, as well as by her married name.

Whereas in an English will you will appoint an Executor to administer your estate, that is not so in a Spanish will as a matter of course.  According to English law your entire legal estate vests in the Executor, who pays your debts, distributes any legacies, and then holds the residue on trust for the beneficiaries.  

In a Spanish will you may name an administrator, called an “albacea” in Spanish, who will be responsible for administering your estate, but who will not own the assets in any way at any time.  The people in whom your estate will vest are your legatees (in Spanish “legatarios”), to whom you may leave a specific legacy, and your heirs (in Spanish “herederos”) who inherit the residue of your estate.  If you do not appoint an administrator, then it will be your heirs in whom your Spanish assets vest and who will have the responsibility of distributing any legacies to legatees whom you appoint.  

Is it really necessary to make a Spanish will? 

You may receive advice that it is not strictly necessary to make a Spanish will, as your English will covers Spanish assets also.  That is true, although a far more certain option is to make a Spanish will if you own any Spanish assets at all.  

It should be clear from the above that the differences between an English will and a Spanish will are sufficiently important for it to make sense to opt for making a Spanish will.  It is not an expensive option and any expense that you incur in making a Spanish will will undoubtedly reduce the expenses that your beneficiaries incur when it comes to administering your Spanish estate.  

What should I do next if I want to make a Spanish will? 

If you own property in Spain and you would like to make a Spanish will to protect your assets, please contact us for a free initial consultation.  You can contact us by email at info@solicitorsinspain.com by telephone on 020 3478 1420 or by completing our contact form.  

Last updated: 2 June 2016

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