Spanish Wills Abogado

If you wish to make a Spanish will or seeking advice on the benefits of creating one, or looking for guidance as to whether you need to change your existing Spanish will in light of the EU legislation introduced in August 2015, the following information will assist you:

Why should I create a Spanish will?

If you are a UK resident, but own property in Spain, it is good practice to draft a Spanish will for numerous reasons.

The most important reason is that it will make dealing with your estate in Spain far more straightforward for your beneficiaries. Whilst you can deal with your Spanish assets through a will made in the UK, it is strongly advised to do so via Spanish wills. Mainly because should your estate be handled by a Spanish abogado (lawyer) unfamiliar with English law and if your will incorporates trusts or non-standard clauses, it is likely to lead to significant delays and additional costs, especially as you will require additional cross-border expertise.

Another very good reason to create a Spanish will is that a Spanish will may reduce the tax liabilities of your beneficiaries. There is no standard structure for making such arrangements, however, there are numerous options that can be discussed with you by an expert Spanish inheritance lawyer.

Giambrone's highly experienced cross-border Spanish abogados (solicitors) can advise and guide you with regard to your Spanish assets bringing clarity and avoiding confusion and delay making the process of dealing with your Spanish assets far smoother.

A most important point to ensure that the English and Spanish wills, do not contradict or revoke each other.  Avoiding this possibility can easily be achieved by Giambrone's expert cross-border wills and inheritance team.

Which law applies to my Spanish will if I am a UK resident?

For UK residents, Spanish wills can be governed by the laws of England and Wales. EU inheritance legislation drafted in 2015 has enacted legislation that causes EU citizens who are residents of Spain to 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 estate 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 whomever 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 most important to take advice regarding your will if you wish your estate to be dealt with under the laws of England and Wales, you will have 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?

Drafting a will in the UK does not require any assistance an individual can draft their own will and provided it is properly witnessed by two witnesses who observe the testator (the person making the will) actually signing the will and are not benefactors and the testator, is of sound mind, the will is valid.  However, it is generally considered to be a risky practice as there are many implications that must be properly considered to ensure that the will is truly in line with the testator's wishes.  There is no requirement for the will to be signed in front of an official such as a notary or court official.  In the case of "do-it-yourself" wills, unfortunately, it can and does lead to legal issues and a will can be found to be non-compliant with the law or incorrectly executed

A will drafted under the laws of England & Wales once signed and witnessed is not entered on any central register. However, a will is frequently stored at the office of the solicitor involved in drafting the will, or at your bank together with other important documentation such as the title deeds to your property; or it may even be kept at your home or with a relative. 

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 leave 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 ensuring that when the testator dies, a certified copy of the will can always easily be obtained from the Notary’s office.

A further variation between Spanish wills and English wills is that in Spain, it is not necessary to name an executor who will be responsible for administering your estate, whereas it is in England and Wales  If you do wish to name an executor in your Spanish will but you should remember that your executor(s) will be carrying out their responsibilities in Spain in accordance with Spanish law, so it may be prudent to name executors who are able to speak fluent Spanish.

What are the different types of Spanish wills?

There are three different types of Spanish will.

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 lawyer it is always advisable, particularly if you do not understand the Spanish language well enough to be satisfied that it reflects your wishes. Giambrone's Spanish inheritance lawyers 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 confidential. A Spanish lawyer will need to draft it to ensure it is in compliance with Spanish law; you are then required to take the document to a Notary, who seals it into an envelope and signs the envelope, together 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 drafted will. If you are writing it, you must ensure that there is absolute clarity in the terms of your will with no question mark over your wishes, you then sign and date it on each page. There is no need for a visit to the Notary, nor for witnesses to sign a holographic will. It is your decision whether to voluntarily lodge the will with the general registry, although of course, it is considered advisable. When the testator passes away this type of will has to be authenticated by a judge who will call on close relatives of the deceased to verify handwriting. If a holographic will is made verbally it will need to be done in front of five witnesses, who must then testify as the terms of the will to a Notary, who will then draw up a written will, which will then be certified.

What happens if I die in Spain without a will?

If you die in Spain without having drafted a will (intestate), then your Spanish assets may be automatically disposed inline within the strict laws of succession in Spanish inheritance law, and the compulsory heirs' law. The Spanish laws of succession may not be in line with your wishes which makes a compelling reason to draft a will that reflects your actual wishes.

Giambrone Spanish inheritance lawyers: the expert guidance you will need when drafting 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, Giambrone can provide specialist Spanish inheritance and wills lawyers, with offices in Spain and the UK, we are well placed to assist you in the English or Spanish language. We are wholly focused on ensuring your interests are safeguarded. Giambrone is well-regarded for our lawyers' technical knowledge of the law around Spanish laws of succession and inheritance matters.

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