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 drafted by our specialist Spanish inheritance lawyers at Giambrone should 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 have a will in Spain for numerous reasons.

The most important of these reasons is that 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 should your estate be handled by a Spanish abogado (lawyer) who is not familiar with English law, and in particular, if the will incorporates 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 can be discussed with you by an expert Spanish inheritance lawyer.

Having a will drafted in the UK for your English assets and a will drafted by a Spanish inheritance lawyer for your Spanish assets brings clarity and avoids confusion, as well as also avoiding the delay that having to refer back and forth to both countries will bring and the process will be far smoother.

A key point to note is that if there are two wills that they do not contradict or revoke each other. Informing your Spanish inheritance lawyer and your UK will solicitor of the fact that you intend to have two wills drafted for the respective countries in which your assets are situated is vital.

What 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 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 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?

In the UK a will is either made through a solicitor, a will writer or, albeit inadvisably, using a ‘home will kit’. There is no requirement for the will to be signed in front of an official such as a Notary or Court official.  However, the will must be signed in front of two witnesses who must actually observe the will being signed.  If the witnesses are also benefactors of the will their claim is void as you can receive any benefit from an estate if you have also been a witness to the signature.  In the case of "do-it-yourself" wills it, unfortunately, can and does lead to legal issues where a will turns out 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. They are frequently stored at the office of the solicitor who drafted the will, or at your bank together with other important documentation such as the title deeds to your property. Or they may even be kept at home or with a relative. There is an obvious problem with leaving a will with a relative in that should the will be lost, or the solicitor moves away or ceases trading, tracing the document 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 ensuring 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 English & Welsh wills is that in Spain, it is not necessary to name an executor to be responsible for administering your estate,as it is in England and Wales  If you wish to do so, you can. Keep 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 lawyer it is always advisable, particularly if you do not understand the Spanish language well enough to be satisfied that it reflects your wishes. 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 secret. A Spanish lawyer will need to draft it to ensure its 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, 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 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, 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 as to wishes to a Notary, who goes on to draw up a written will, which will then be certified.

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 inheritance lawyers: 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. Giambrone is well-regarded for technical knowledge of the law around Spanish laws of succession and inheritance matters.

For further information about Spanish wills and other inheritance issues please click here