If you live in your country and
own property in Spain
it is advisable that you have a Spanish will as well as a will dealing with
your national assets.
Here you will find the reasons
why non Spanish nationals make Spanish wills and the procedures you must follow
in order to do so.
The best reason to make a Spanish will is
that it will make it much easier & cheaper to administer your Spanish estate
upon your death. In
fact a well drafted will in your own country can have the same results, but if you have the
option it is always better to deal with your Spanish assets in a Spanish will. If
your national will is straightforward, and you engage a specialist lawyer then
any complex issues will be dealt with as a matter of course. However, very
often the will is drafted in such a way that its effect can only be determined
by an solicitor specialising in will trusts, or where the estate is handled by
a Spanish lawyer who has never dealt with a similar cross border matter. This can
lead to unnecessary costs and delays.
Unlike in other countries, wills made in Spain must
almost always be signed before a Notary who will ensure that the document
complies with all legal requirements. Once the will has been signed, the Notary
sends information relating to the identity of the testator and the place at and
date on which he made a will to a centralised registry of wills at the Spanish
Ministry of Justice. The will signed by the testator does not leave the
Notary’s office, but is bound into a volume of documents signed before that
Notary and in due course, when the Notary retires, dies, or leaves the
municipality, is passed to another Notary in the same municipality for
safekeeping.
The helpful result is that upon the death
of the testator a certified copy of the will can be obtained from the relevant
Notary’s office, a document that can then be used by the beneficiaries to
administer the estate.
If you were to die without leaving a will,
or if your will under your national law was the last will to deal with your
estate in Spain ,
the Spanish authorities need to be satisfied as to who has the right to
administer the estate. In certain instances an application may need to be made
to the Spanish court in order to proceed, but usually matters can be handled
before a Spanish Notary. One is then reliant upon the expertise and prior
experience of the judge or the Notary in relation to such cross border matters.
It can be particularly difficult to explain the effect of certain trusts, for instance.
When presented with an English will in
relation to Spanish assets, a common error made by lawyers lacking the
necessary experience is to treat the executor in the same way as he/she would
be treated in other countries (i.e England or Ireland), so that the entire
Spanish estate vests in the executors. In certain circumstances this can mean
that inheritance tax is payable at a much higher rate.
It can be more effective for the final
beneficiaries of the Spanish assets to inherit directly, with the agreement of
the executors. This is permitted by the rules, and avoids reference to the
executors from a financial perspective, thus minimising the inheritance tax
liability. An error relating to inheritance tax may be difficult or impossible
to correct, but in order to avoid such errors altogether the best advice is to
make a Spanish will that dovetails with any other will that the testator may
make in relation to the rest of the estate.
Whatever the content of other wills, it is
most sensible to ensure that the Spanish will is limited expressly to assets
situated in Spain .
Further, it is possible to appoint someone as administrator of the will (in
Spanish, “albacea”) who can administer the Spanish estate. Unlike executors,
the estate does not vest in an administrator of a Spanish will, although the
administrator usually is a legal or other professional, expressly authorised in
the will to charge for his work.
Probably the most frequently asked
question relating to Spanish succession is whether forced heirship rules will
apply. The simple answer is that Spanish law provides for your national law to
apply, meaning the law of the country of which you were a national as at the
date of death. So, as an example, a British national from England will
have testamentary freedom according to English law. The most effective way to
ensure that English law applies to an estate is for you to make a Spanish will
in relation to your Spanish assets, specifying that you wish your law to
apply to your estate in Spain .
Spanish nationals do not use lawyers to
write their wills. They simply attend at the Notary’s office and set out what
they want to happen to their assets when they die. But this is not a sensible
route for the non-Spanish national, whether resident in Spain or
otherwise. While the Notary will consider his knowledge of Spanish private
international law to be sufficient for the purpose, he may not have a correct
understanding of all the issues relevant to your individual circumstances. You
can have your Spanish will drafted by an independent adviser in your country and then signed before a Notary during your
next visit to Spain .
Writing a
Spanish will is the best way to ensure that your Spanish assets are dealt
with according to your wishes. However, you
need to consider the best approach for your specific circumstances. The best way
to do this, with no doubt, is to seek specialist
advice from an expert.
Javier Herrera Llamas
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