As specialists in Spanish succession law we are frequently asked by clients “Do I really need to make a Spanish will?” as it seems that there are a lot of mixed messages about this issue on the Internet. The answer, as with so many legal questions is; “It depends,” but there are a number of compelling reasons why it can benefit you to have a Spanish will in place if you own assets in Spain.
What is the risk of leaving no will?
If you die without a will either in the UK or in Spain then you have no real certainty as to who will inherit your assets when you are gone, as a set of rules called the intestacy rules will determine who inherits from you.
Leaving no will can mean that there is a question as to whether the intestacy rules of Spain, England, Scotland or Northern Ireland apply to your estate. Since 17 August 2015 the intestacy rules applicable to your estate will be the rules of the country in which you were habitually resident as at the date of your death. So, if you were habitually resident in Spain then the intestacy rules applicable in the autonomous community in question would apply to your estate (there are 17 autonomous communities in Spain). If you were resident in London then English law would apply. If in Edinburgh then Scots law would apply, and if in Belfast then the law of Northern Ireland would apply.
While the intestacy rules do not change often, they do change from time to time, as they did in England & Wales on 1 October 2014. Rather than having to worry about any changes in the intestacy rules applicable in different jurisdictions, it is surely far preferable to make a will so that you can be certain as to what is going to happen to your assets when you die. This is as important in your home jurisdiction as it is in a foreign jurisdiction. Whereas you may not be resident abroad at this stage, when you die circumstances may have changed such that you are considered to be resident in Spain, for example, with considerable assets in that country.
By making a Spanish will at this stage, establishing that English law or Northern Irish law is to be the law applicable to your estate, you can choose to whom you want your Spanish assets to pass and in which proportion. Scottish law is slightly more restrictive, but still allows for a great deal of freedom in terms of leaving assets upon your death.
What if I’ve already got an English or Scottish will - why do I need a Spanish will as well?
If you already have a will in place then you are better prepared than over 60% of adults in the UK who have not yet made a will. While an English or Scottish will can be used to administer a Spanish estate, the process can be lengthy and it is almost always more costly. The successful administration of a Spanish estate also depends upon your beneficiaries seeking legal advice from a suitably qualified professional with experience of administering cross border estates. The risks of the estate being administered by a non expert vary from extensive delay to incorrect tax handling.
The end result can be a headache for your loved ones and increased expenses meaning that your beneficiaries receive less while lawyers, and potentially the Spanish tax agency, make a healthy profit.
Administering a Spanish estate using a Spanish will is far more straightforward and will certainly result in less work and more money for your beneficiaries.
A word of caution, however. It is vital that your Spanish will “dovetails” with your English will so that neither will revokes the other.
How do I make a Spanish will?
You should ensure that you seek specialist advice from a lawyer with experience in cross border succession matters. Your will can then be drafted in Spanish and in English before being signed in the presence of a Notary in Spain. Following that your Spanish will will be registered at the central registry of wills in Madrid.
If you update your English/Scottish/Northern Irish will at any point in the future you should also consider updating your Spanish will and your adviser should take care to ensure that any future wills take into account your will in Spain.
If you are thinking about making a Spanish will, please do contact us. You can contact us by email at firstname.lastname@example.org or by telephone on 020 3478 1420. You can also reach us by completing our contact form.