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What happens if you do not make a Spanish Will?

If you own property in Spain or in the UK, or both, it is advisable that you make a Spanish Will and a UK Will.  One of our most frequently asked questions is “do I need to make a Spanish Will?” and we are frequently surprised by the number of people we meet who have not made a Will in Spain or in the UK.   To clarify matters, here we set out what happens to your assets if you die without a Will in Spain and in the UK.  

Surprisingly there are still a great number of people who have not made a Will in relation to their estate.  According to research carried out by the Law Society of England & Wales, published in October 2014, 73% of 16-54 year olds had not made a Will, while 36% of people over the age of 54 had not made their final wishes clear in a Will.  

What happens if you do not make a Spanish Will or a Will in the UK?

If one dies without having made a valid Will, either in respect of one’s universal estate, or in respect of a part of it, then the part of the estate not subject to the provisions of a Will is said to be intestate.  The lack of a Will produces what is called intestacy.  To quote a past president of the Law Society, Andrew Caplen: “Dying intestate not only means your final wishes will probably go unheeded, but the financial and emotional mess is left for your loved ones to sort out. This need not be your final legacy.”

Unsurprisingly each jurisdiction caters for the situation in which someone dies without making a Will.  The rules form part of the body of rules known as the law of succession and are called the rules of intestacy.  The rules of intestacy vary from jurisdiction to jurisdiction, normally from country to country, but in the case of some countries, notably Spain and the United Kingdom, different regions apply different rules to the same situation.  In Spain there are 17 different autonomous communities and in the UK we have England & Wales, Scotland and Northern Ireland, each with its own succession law.

What law will apply to my estate? 

If you own assets in Spain when you die and you have not made a Will at all, the question of which law will apply is now far simply than it once was.  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 will apply to your estate.  If you were resident in London then English law will apply.  If in Edinburgh then Scots law will apply, and if in Belfast then the law of Northern Ireland will apply. We have recently discussed the administration of a cross-border Spanish and Scottish estate in a more recent article here.

So, while it is now simpler to determine which law will apply, the way in which the rules work changes from time to time.  Currently, if English law applies to your estate, then if you die with a surviving spouse or civil partner, and with children, then the spouse or civil partner will keep all of the assets up to £250,000 and all the personal possessions whatever their value.  The remainder of the estate, if any, is divided equally between your surviving spouse or civil partner, and your children/grandchildren (who inherit in equal shares and, if grandchildren, the share that their deceased parent would have inherited had they survived).   In the same circumstances, if you were habitually resident in Barcelona when you died then your children will inherit all of your Spanish estate and your spouse or civil partner will inherit a life interest in all of the estate, whereas if you were resident in Madrid then your children and grandchildren will inherit all of your Spanish estate, while your spouse or civil partner will inherit a life interest in one third of your estate according to the intestacy rules. 

How can making a Spanish Will help me? 

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 that may be effected on an on-going basis, 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 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.  

During the COVID-19 crisis many people are ensuring that their Wills reflect accurately what they want to happen to their assets when they die.  Of course, this is in large part because our mortality has been brought into sharp focus by the tragic early deaths of so many people over such a short time span.  It makes most sense to make a Spanish Will in relation to Spanish assets.  However, it makes more sense to have a Will that covers one’s Spanish assets than no Will at all.  Making a Spanish Will means being in Spain or visiting a Notary Public in your own country of residence.  That could be difficult at the moment.  If you need to make a Will in your own jurisdiction to cover your Spanish assets, then please be in touch with us.  If you live in England and Wales then we will be able to prepare a Will for you to sign now.  If you live in Scotland, Northern Ireland, or another country, then we will be able to ensure that your Will is valid and sufficiently clear for your Spanish estate to be administered upon your death.  This may be a temporary solution, so that once you are able to travel, or to visit a Notary Public in your own jurisdiction, you will be able to make a Spanish Will.

What should I do next? 

At E&G Solicitors in Spain we have a great deal of experience of advising and assisting nationals of the UK and other countries in relation to making Spanish Wills and planning their estates.  

If you would like to discuss how best to deal with your assets, please do be in contact with us,. You can contact us by email at info@solicitorsinspain.com, by telephone on 020 3478 1420 or by completing our contact form.  

Last updated: 14 August 2020

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