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Is there a Will or Testament or Probate?

Is it obligatory to make a Spanish Will when you have assets in Spain?

There is some confusion in the market in relation when deciding to make a Will in Spain when you have Spanish assets.

The majority of our clients, when buying a house in Spain, they ask us if they have to make a Will.

Our answer is

NO. It is not obligatory. There is not any law in Spain which forces citizens to make a Will in Spain when they have Spanish assets.

The reason of this is that you can make your Will in UK. International laws clearly establish that a Will made in a foreign country, and following this country normative,  is perfectly valid to regulate assets from the testator even if they are in another country.

Once confirmed that it is not obligatory to sign a Will in Spain, and that you may make a Will in your country of origin, we move forward and say that although “not obligatory” it is “recommendable” to make a Will in Spain when you have Spanish assets.

Why make a Spanish will to regulate your inheritance ?

 FIRST.– Because it will be the perfect way to planning your inheritance estate, guarantying that you the inheritance will be regulated by your national laws. Overall when you come from countries like UK or USA when the inheritance system is quite different from the Spanish ones. In these countries, the election of the inheritors is “free”. There is “free disposal of assets on inheritance” when making a Will.

But in Spain is different. Spanish laws limit the freedom of disposal of the testator in a Will. This limitation passes to respect up to 2/3 of the inheritance to some members of the family (mainly, surviving spouse and descendants).

And this is important, because, if you have assets in Spain, and you are not “living” in Spain on permanent basis (you are non-resident in Spain), in case of death, the inheritance process of these assets will be regulated by your national laws. But, if you are Spanish Resident (you are living in Spain in permanent basis-more than 6 months per year during the last 5 years before death), then, if you do not expressly say the opposite in a Will, the law to regulate your inheritance may be the “Spanish” and not your national law.

This interpretation comes from a recent normative from 2015.

French, German, Italian, Norwegian, Swedish, etc, use to have a similar system as the Spanish ones, which is the respect of some percentage of the inheritance assets to “obligatory heirs”. But, in UK and USA is different.

So, if you are a Spanish resident, or your intention is to live in Spain permanently and your intention is to pass your assets to some different from your surviving spouse or your children, in this case it will be highly recommendable to make a Will, in Spain, or in UK-USA, where you clearly confirm that,  in case of death, you expressly want to be regulated by your “national laws” and NOT by the “Spanish” ones.

If this is not the case, and you have not mentioned in a Will that instruction, your inheritance will be regulated by the Spanish laws.

So, as UK or USA, when resident in Spain, the best way to guaranty that your Spanish assets will be regulated by your national law

SECOND.- Legalising a UK Will in Spain  is MORE EXPENSIVE and MORE COMPLICATE than having an existing Spanish Will. So, if you had not a Spanish Will, and you only have a UK Will, then, your inheritors, in order to execute the UK Will in Spain, they have do the following:

  1. A certified copy of the UK Grant of Probate must be legalised with “La Hague Apostile”, which is an international stamp obtained from the Foreign Office.
  2. A Spanish translation of this certified copy must be prepared and validated by an official translator.
  3. A Spanish lawyer must be empowered to prepare a list of the assets in Spain, and to execute the will, and pay the inheritance taxes.
  4. A Spanish Notary must then proceed with the execution of the Will

Due to all the above complicate process to execute a foreign Will in Spain, with all these steps,  and expenses, it is recommendable to make a Spanish Will in Spain. It will safe your inheritors time and money.

AS CONCLUSION: IT IS NOT OBLIGATORY TO MAKE A WILL IN SPAIN, BUT IT IS RECOMMENDABLE

   


Important recommendations when making a Spanish will:

 

  • Ask for previous advice to a specialist in International Inheritance. Not all the Lawyers and legal advisers have the necessary qualification to deal with international inheritance.
  • CHOOSE YOUR LAW. Make sure that the law chosen will be the one that will regulate your Probate.
  • CHECK YOUR CURRENT  WILLS! 
  •  Coordinate UK Will with Spanish Will. Inform your Solicitor about your UK Will, if any, in order to elaborate the Spanish Will in accordance with he UK one. It will avoid contradictory disposals which could create serious problems to your inheritors.
  • Make the Spanish Will ONLY FOR SPAIN. Make sure that your Solicitor considers in the Will just the Spanish assets, in order to do not enter in conflict with other Wills made in other countries.
  • Take into consideration the expression that  in case of death, you expressly want to be regulated by your “national laws” and NOT by the “Spanish” ones.
  • Ask to you Solicitor to name an “Executor” if convenient.

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