THE IMPORTANCE OF MAKING A SPANISH WILL AND USEFUL ADVICE AND PRACTICAL RECOMMENDATIONS
We would like- if we may- to take this opportunity to kindly give you some useful advice regarding a Spanish Will. We have indeed detected that this issue is still creating some confusion among our new clients.
Although you might already made a Will in the past, we have considered useful to post this article, just in case you or your family might need it one day.
In the first place, we cannot sufficiently stress the point about importance for anyone who owns a property in Spain, to make a Spanish will.
As you might probably remember, a Regulation was passed in 2012 (REGULATION (EU) No 650/2012), allowing EU citizens to leave their Spanish property according to their own national law, instead of the law of their country of residence. It was required since then to make a Spanish Will in which you state that you wish to leave your property according to UK law and that the Will only applies to your Spanish assets. This law came into being in Spain in 2015, meaning that all non-Spanish owners of properties in Spain (residents or non-residents), should make a Spanish Will ASAP.
In fact, having a property in Spain without making a Spanish Will can be a very risky and ultimately a costly decision for the legal heirs.
Why a Spanish Will?
First, because without a Will, inheritance expenses can be prohibitively high (in Probate or Grant of letters of Administration’s costs, plus swore translations and compulsory legalization of documents, legal fees, etc).
Second, beneficiaries will face a lengthy and stressful Spanish legal process to claim their Spanish inheritance, for example in cases where it is necessary to apply for certificates to non-EU countries. On the contrary, a standard inheritance procedure where the testator has made a Spanish Will is relatively quick and straightforward. (it can just take around 2-3 months).
Third, because if someone dies without making his or her wishes clear in the Spanish Will, there is a possibility that the Spanish rules on intestacy might apply. Spanish intestate Law differs greatly from UK Inheritance Rules. Whereas the UK law permits individuals, within reason, to leave their assets to whom they choose, the Spanish law imposes strict rules as to inheritance by family members. This is particularly appropriate in situations where there has been more than one marriage and several children from different marriages. According to the Spanish Rules of intestacy, all children (irrespective of the marriage), would have a preferential equal entitlement to claim their own share.
Therefore, if someone plans to leave the Spanish property and assets to his or her legal heirs without wishing for them to suffer delay and escalating costs, then it is strongly advisable to make a Will in Spain before passing away.
On the other hand, remember that when making several Wills in different jurisdictions, you can have for example an UK Will that might cover your UK interests and your Spanish Will that will cover only your Spanish interests. However, bear in mind that the Wills must be clear on which assets each Will pertains to cover as well as the appointed beneficiaries. Moreover, it is essential to mention clearly that the scope of the Spanish Will must include any present or future properties or assets, located in Spain only. Otherwise, the Wills could be accidentally invalidated and as a result, the testator’s actual wishes completely overridden.
2. Useful tips and practical recommendations once that the Spanish will is signed. The necessity to inform the next of kin
A lot of people believe it’s too difficult or macabre to think about, much less plan for, one’s own death. But confusion, exhaustion, and terror are the norm in the wake of enormous loss. Planning ahead helps reduce the family’s stress when they’re already in their own personal hell.
In fact, we have detected an increasing number of people (usually family relatives) who contact us when they find out that their loved ones have passed away in Spain. They had no idea wether Spanish wills were ever signed at the notary.
In many of these cases, our clients are totally unaware of whether the deceased made a Spanish Will or not. For example, they usually come to our offices without having any clue also, about the number and specific location of the assets and properties owned by the testator.
Inform your next of kin.
This situation of uncertainty frequently leads to a lot of stress and delay, which finally results in escalating costs and significant inconvenience derived from having to request for a lot of additional certificates from the Spanish Authorities. The problem is that these certificates are not easy to obtain, for example bank account’s details from the banks, etc
Subsequently, in order to prevent this unpleasant situation from happening, it is crucial that you carefully follow these very important instructions very carefully.
Remember to ask yourself the following question; If someone had to suddenly take over your whole life, what do they need to know?
1º.- Your Last Spanish Will and Testament
We strongly recommend that you keep a hard copy of the Spanish Wills and also in PDF format. You should also update your Spanish Will, such that your current Will might no longer reflect your actual wishes or if your personal situation might have varied substantially. For instance, getting married, divorce, having new children, etc.
Nevertheless, if you change your passport number or your address, you will not need to change the Will. Although in this case, it is strongly advisable that you might contact us in order to give us your new personal details. (new address, passport nº, etc).
2º.- Lists of accounts, important contacts, assets and debts
Furthermore, keep all your paperwork in order and let also your beneficiaries know where it is kept. This includes title deed, local vehicle tax payments, property rates payments evidence, title deeds, mortgage contracts and details of joint bank accounts, etc. To that end, we strongly advise that you also give your beneficiaries a copy of the title deed, together with a comprehensive list or inventory of all your assets located in Spain.
A list of all your credit cards, checking and savings accounts, including where they’re held and branch information if necessary. You can leave out the account numbers if you have privacy concerns; what you’re really doing is making a road map for whoever will be handling your affairs. Make sure someone knows where the keys of the property and car are.
Furthermore, any student loans, credit cards, mortgages, auto loans, etc.
Don’t forget your rent, utilities, subscriptions, child support, memberships, and donations that auto-renew. List every single thing that bills out of your account monthly, quarterly, annually.
Finally, do not forget writing in a letter the passwords of social networks (Facebook or similar). Seal all this information in an envelope and keep with the other documents.
3º.- Life insurance
You should have life insurance if you have any outstanding debts or dependents. ( mortgage, etc). Ask the bank for a copy of this essential document. Some unscrupulous Banks might fraudulently refuse applying the policy on the mortgage, in order to force the legal heir to keep paying the full mortgage’s amount ( we have dealt with this situation in the recent past).
Obviously If you have no major debt and no dependents, you could skip the life insurance part, but keep in mind that life insurance beneficiaries can also be parents or other relatives, all of whom could probably use the money—especially if they are anticipating support in their retirement years and/or paying for the cost of your funeral.
4º.- Funeral preparations and preferences
Likewise, if you are living abroad, it is always advisable to hire a funeral insurance. Otherwise, your relatives will have to pay for it, which is very expensive in Spain. For example, if you want a burial or cremation and where you want your remains to go. (Especially if you come from a large family or if there are any religious or cultural differences to consider).
5º.- Solicitor’s details
Finally, do not forget to provide your next of kin or beneficiaries, with our professional contact’s details, in order to remove huge delays (and increased tax liabilities later on). That would allow us to provide your beneficiaries an immediate friendly and effective help and advice, when most needed.
Although the Spanish will is notarized and register at the Last Will Registry in Madrid, – for our client’s peace of mind, – a duly simple copy of the will is always safely and confidentially kept in secure storage in our premises together with an electronic copy of the will in PDF format, available to our clients at any time.
6º.- Final note
Keep all the information somewhere secure (originals and copies), both in Spain and in your home country, and make sure your legal beneficiaries know where this information is!
The less mess you leave for someone to clean up, the less you’ll complicate the grief for people who love you.
To sum up, we fully realize that owning a Spanish property can lead to uncertainty about your foreign obligations. We highly recommend that you plan well ahead before or immediately after you buy the property, to ensure you have both a foreign Will and a Spanish Will.
The Will is one of the most important documents you will sign in your lifetime, failing to take expert professional advice can result in mistakes and missed opportunities to save tax which, in the long run, can prove to be extremely costly and upsetting for families and loved ones.
In conclusion, it is essential that appropriate expert trusting professional advice is obtained in making sure that your Spanish Will is designed appropriately, to provide the basis for the most convenient, efficient and straightforward succession process possible in the circumstances. This means avoiding inconsistencies or conflicts in the use of language, (for instance, the consequences of a poor-quality translation), the dangers of possible mutual incompatibility of Wills; and confusion over succession issues and taxation liability.
About our Law Firm
At BZN Lex, we are proficient with the wording required. Therefore, should you need to make a new Spanish Will or just update your existing one, please do not hesitate to contact us. You would just need provide us with your details, tell us to whom you wish to leave your property and we will draw up or update your Spanish Will for a very reduced and competitive fee.
And in the unfortunate event of demise, we are experts in dealing with all kind of complex inheritance procedures. We will be glad to inform you accurately about the legal and financial aspects of the process (i.e. inheritance tax liabilities, etc).
We hope this preliminary information is useful for you. Should have any question or enquiry about this or any other legal matter, please do not hesitate to contact us and we will be glad to clarify to you.
Thank you very much for your attention, and we look forward to helping you.
Mr. Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practicing Spanish Solicitor.