Whether you are a Spanish resident or not, if you have assets in Spain it is advisable to have a Spanish Will. Spanish Wills for Non-residents shall never overrule the one you have in your country of origin, but will serve as a complement dealing only with your Spanish assets.
Subsequently it is advisable to have a UK Will to manage your assets there if you still haven’t drafted one, and another one in Spain.
Having Spanish Wills for Non-residents, if you have assets here, especially real estate assets will avoid many problems for your beneficiaries and will be very useful for various purposes:
Your legal heirs will have to pay Spanish Inheritance Tax on any assets you might leave in Spain and they have 6 months from the date of death.
Even if you are non-resident in Spain, and your national or last residence law applies to determine the rules of succession, this does not mean your legal heirs will avoid having to settle Inheritance Tax in Spain for the assets located here that they have inherited.
That means a valid Spanish Will is your best option as such a document can be easily enforceable in Spain, and will allow your heirs to comply with the deadlines to file and settle the inheritance tax thereby avoiding having to pay interest, penalties and surcharges to the tax Authorities.
Whereas a Spanish Will can be executed immediately, a UK Will can exceed the six-month deadline, so in this case, saving time means saving money. This is because, in order to be valid, and to be able to execute a testamentary document in Spain, if you only have a UK Will, it will need to go through the Grant of Probate, which can be a long and expensive procedure.
Problems Caused by the difference in National Probate Systems: Certification
The system in Spain is different, since in Spain you do not need to go through a Grant of Probate as all wills are Notarized, and there is a public Registry of Wills called the ”Registro de actos de últimas voluntades” or “Last wills Registry” where the legal heirs can get easy access once the testator has passed away, where your information will be stored free of charge, in order to certify:
1.-That the testator has passed away having made a Will
2.-Which Will made by the testator is the last and subsequently the valid one
3.-Which Notary assisted the testator in drafting the Will and when.
4.-It will also provide information in case the deceased person has not drawn up a valid will, meaning that intestate rules of the Spanish Civil Code should apply in default of a Will.
In our experience, many legal problems arise due to the fact that there is not an equivalent in the UK system.
Accordingly, your heirs will be asked by different Spanish Public and Private entities to certify that the Will they are presenting is the last and valid one, (or in case there is no Will, they will be asked to provide a Court resolution granted by the country of the deceased stating who are the legal heirs according to the deceased´s home country intestate rules. in order to be able to gain ownership over the deceased’s assets.
Problems Caused by the difference in National Probate Systems: Translation
Documents such as your English will, death certificate, Court rulings, etc will also have to be translated into Spanish by a sworn translator and in case you belong to a non EU country, they will have to be apostatised with the official Stamp regulated in Le Hague Convention, in order to make it a valid and enforceable official document in Spain.
Drafting a Spanish Will
In practical terms, failure to draft a Spanish Will for your Spanish assets will result in higher costs, far more time to resolve and lots of hassle for your heirs, that you could have easily sorted it out by drafting a Spanish Will for your assets here spending very little.
- Drawing up a Spanish will is simple, and cheap. Your solicitor can easily prepare a will tailored to your needs and specific requirements. Such a Will is drawn up before a Notary Public giving it more guarantees, as the Notary will have to check your capacity to grant the Will, and make sure you have fully understood its content and consequences, and such a Will, as already pointed out is held in a Public Registry.
- Spanish succession laws based on legal heirship allow little room to choose to whom you can bequeath your inheritance, as opposed to the UK system which is based on freedom of disposition.
According to Spanish law, you are only entitled to dispose of 1/3 of your total inheritance, with the remaining 2/3 rds. reserved for your legal heirs or 1/2 in case your parents are your legal heirs.
Bearing this in mind, you would probably prefer to have your national laws applied to the regulation of your Wills.
A ‘Confusion’ of Laws
Since you will not be resident in Spain, and your national law or law of the country where you are resident should apply, you might consider you are safe and everything seems to be under control at this point, but nothing could be further from the truth, and failing to draft a Spanish Will as a non-resident taxpayer in Spain can be a huge mistake, because you still have properties and assets in Spain.
Both the UK and Ireland have rejected European regulations of succession rules and have their own rules.
To add more complexity, many foreign laws, including English and Wales’ laws on this matter revert to the Spanish applicable laws in cases where the deceased had properties in Spain, so you could find that Spanish regulations may apply to part of your succession and properties here, even though you are not resident.
Spanish Court rulings on the matter have been not very clear, considering that Spanish legislation is more protective to legal heirs with the system of forced heirship where there is not an equivalent system, so if you have, for instance, legal heirs in Spain because you have remarried, they can challenge the UK will to get their rightful share from the properties and any other assets located in Spain even though it was not what you wanted.
If there is no Will at all, it could possibly be challenged that you were resident in Spain when you died, and Spanish rules of enforced inheritors could apply.
If we add to the above all of the regulatory uncertainties contingent on Brexit, we could have what we might call, the perfect storm.
This can be sorted out if you make a Spanish will stating that even for the assets in Spain, only the rules from your nationality shall apply.
In this case the content of your Spanish Will is only governed by your own national laws, so you keep your free testamentary disposition without having to apply Spanish forced heirship rules, and it will be the same as if you had drawn up the Will in your country .
If you need advise in detail about Spanish Wills for Non-residents, do not hesitate getting in touch with us.