If you are looking to make Spanish wills, are seeking advice on the benefits of creating one, or looking for guidance on whether you need to change your existing Spanish will in light of the new EU legislation introduced in August 2015, the following information put together by the specialist Spanish wills solicitors at Giambrone should answer many of your questions.
Why should I create a Spanish will?
If you are a UK resident, but own property in Spain, it is good practice to have a will in Spain for numerous reasons.
The most important of these reasons is that looking ahead, it will make dealing with your estate in Spain much more straightforward for your beneficiaries. Whilst you can deal with your Spanish assets through a will made in the UK, it is always advisable to do so via Spanish wills. This is because if your estate is being handled by a Spanish solicitor who is not familiar with English law, and in particular if the will incorporated trusts or non-standard clauses, which they often do, it could lead to delays and additional costs whilst additional, specialist cross-border assistance is sought.
Another very good reason to create a Spanish will is that it has the potential to significantly reduce the tax liabilities of your beneficiaries. There is no standard structure for making such arrangements, however there are numerous options which good Spanish wills solicitors will discuss with you.
It is generally much clearer cut if you have a will in the UK to deal with your UK assets, and a will in Spain to deal with your Spanish assets. If assets can be dealt with under the local law, rather than waiting for a grant of probate to be issued in another country, the process will be far smoother.
An important point to make here is that if you do have two wills, it is vital to ensure they do not contradict each other and make sure that one does not revoke the other. Informing your Spanish wills solicitors and your UK will solicitor of any existing wills is essential.
What law applies to my Spanish will if I am a UK resident?
For UK residents, Spanish wills can be governed by UK law. As of August 2015, new EU inheritance legislation has provided that EU citizens who are residents of Spain will be subject to Spanish succession law, regardless of their nationality, unless they specifically state in their will that they wish for the succession law of their own country to apply. The Spanish law of compulsory heirs dictates that set percentages of an inheritance must be left to children and the spouse. This is different to the law in the UK that allows the testator to leave their estate to whoever they wish.
If you have already made a will in Spain and are a resident there, but do not have Spanish nationality, then it is important to take advice on changing your will to specifically state that you wish your country’s own laws of succession to apply, so that you are able to leave your assets to the people of your choice.
What are the differences between Spanish wills and UK wills?
In the UK, a will is either made through a solicitor, a will writer or, albeit inadvisably, using a ‘home will kit’. The will need not be signed in front of an official, but instead two witnesses who do not stand to benefit from the will. Unfortunately, this can and does lead to issues where a will turns out to be non-compliant with the law, or incorrectly executed.
UK wills, once signed and witnessed, are not entered on any central register. They may be stored at the office of the solicitor where they were made, or at your bank with other important documentation such as the title deeds to your property. Or they may even be kept at home or at a relative’s. The problem with this is that should the will be lost, or the solicitor move away or cease trading, tracing it could prove a challenge.
Things are different in Spain. Spanish wills in most cases are signed in front of a Notary, who will take responsibility for making sure they are legally compliant. Once signed, the Notary submits the information to a central registry of wills, which is located at the Spanish Ministry of Justice in Madrid. The signed will never leaves the office of the Notary and if the Notary leaves the area, retires or dies, it is passed to a succeeding Notary in the same locale for safekeeping. This all means that when the testator dies, a certified copy of the will can easily be obtained from the Notary’s office.
A further difference between Spanish wills and UK wills is that in Spain, it is not necessary to name an executor to be responsible for administering your estate, although if you wish to do so, you can. Bear in mind that your executor(s) will be carrying out their responsibilities in Spain and according to Spanish law, so at very least they will need to speak fluent Spanish.
What are the different types of Spanish wills?
In total there are three different types of Spanish wills.
The first is an ‘open will’. This is the most common type. Whilst it is not a requirement to have the will drawn up by a solicitor, it is always advisable, particularly if you do not understand the Spanish language well enough to be satisfied that it reflects your wishes. Spanish wills solicitors will provide you with a copy in your native language for your review before proceeding to the signing stage. Once you are happy with the will, an appointment will be made for you to sign it in front of a Notary and three witnesses, who will also sign.
The second type of Spanish will is a ‘closed will’. The contents of such a will remain secret. A Spanish lawyer will need to draft it to ensure compliance with Spanish law, and then you are required to take it to a Notary, who seals it into an envelope and signs it, along with two witnesses.
Both open and closed wills are filed by the Notary on the general registry of wills in Madrid, and copies kept at the office of the Notary.
The last type of Spanish will is known as a ‘holographic will’. This is a hand-written or verbally made will. If you are writing it, you must ensure that there is no question over any of your wishes, and then sign and date it on each page. There is no need for a visit to the Notary, or for witnesses to sign a holographic will. It is up to you whether to voluntarily lodge the will with the general registry, although of course it is advisable. When you die, the will has to be authenticated by a judge who will call for your closest relatives to verify your handwriting, which can cause delays in administering the estate. If you are making a holographic will verbally, you will need to do so in front of five witnesses, who must then testify your wishes to a Notary, who goes on to draw up a written will, which they go on to certify.
What would happen if I died without a will in Spain?
Another reason to make Spanish wills is that if you die without one (intestate), then your Spanish assets may be automatically disposed in line with Spanish inheritance law, and the compulsory heirs law that we have already discussed may apply.
Giambrone Spanish Wills Solicitors: All the expert guidance you need when making a will in Spain
Spanish laws are notably complex, and even when you have a degree of fluency with the language, the legal terminology and processes that vary from those in the UK can be confusing. Expert advice is essential, and you will find this amongst the specialist Spanish wills solicitors at Giambrone. With offices in Spain and the UK, we are well placed to assist you in your native language. We are wholly focused on ensuring your interests are safeguarded, and our technical knowledge of the law around Spanish will making is highly regarded.
If you would like to talk to us about making a Spanish will, we look forward to welcoming your enquiry, and to answering all your questions.