Spanish Wills

If the Spanish will execution is not contested by anyone, yes, having a Spanish will to deal with your property in Spain is, in my opinion, the most advisable and quickest way for the property to be legally transmitted to heirs.

makes absolutely no difference timewise

Maria - "If the Spanish will execution is not contested by anyone, yes, having a Spanish will to deal with your property in Spain is, in my opinion, the most advisable and quickest way for the property to be legally transmitted to heirs".

But only if you are happy to leave your estate in accordance with the pretty obnoxious Spanish law of Obligatory Heirs which interferes with your freedom to leave your assets to whomever you choose. 

The notary cannot sign off an illegal will and so will not let you leave it all to your partner, for instance.  Imagine a couple each with children from a previous relationship who have been raised as siblings from a very young age.  The parents can only leave a maximum of one third to their partner and/or partner's children between them.  If the will is not going to be contested, then surely it's much better to rely on a will made under the much saner UK law.   Surely it's when the will is going to be contested that it makes sense to have a Spanish will as the Spanish courts are likely to have jurisdiction?

Faro - you don't reckon that the following steps necessary to get probate on an English will covering Spanish assets would make any difference timewise??

§ 01 A certified copy of the grant of probate must be legalised by the Spanish Consul in the UK.

§ 02 A Spanish translation of this certified copy must be prepared and validated by the Spanish Consul in the UK.

Either way there will be a Spanish lawyer involved to prepare the escritura de aceptación y adjudicación de herencia   with the Spanish notary.

 and either way there will be documents to be notarised and legalised in UK and translated so adding a UK will in does not make that much difference even on cost.

The big difference is most Spanish lawyers are not familiar with UK probate procedure and dealing with UK notaries etc.

Non residents generally have free disposition of assets and if challenged under Spain's obligatory inheritance laws that challenge can be made regardless of UK or Spanish will if some family member feels they have a right/claim.

But generally I do advise people to make a Spanish will just in case their UK will is complex but you can just as easily deal with your Spanish property in your UK will.

 Jek: The limits of Spanish Law only applies if Law applicable to your inheritance is Spanish Law... that is obvious.

UK nationals are ruled by UK inheritance Law which just will haveyour probate resent to Spanish Law if your only asset is a estate and is in Spain.

Hi

We went to our local notary, it cost us 35 euro each, the notary advised that we do not have to follow Spanish law, and could stipulate that we want to follow the law of our home country which we did. The charge is for the notarys time, so the longer you are in with them the more it costs, if you do not speak Spanish, then take a spanish/english speaker with you, it is a simple process. Also you will need to do a seperate will in the uk for your uk assets, that is if you have any !

Make sure Spanish Will is only for Spanish property and English Will has correct clause to exclude Spanish property.  It does not solve the tax issues though so be careful how it is written. advise would depend upon your own circumstances. If you do not get it right you could loose your Spanish property in taxes, of it could be sold, Husband and wife have to pay taxes to inherit from each other. Do you have enough  cash in the UK to pay tax?  - do not leave cash in Spain as that can be taxed too.

Yes notary can do it , but who tells you what should be in Will unless they know about you.

The amount of times I heard  "Why didn't anyone tell me about that"  my reply-  who did you get advise from?

reply  no one it just seemed so simple to do it this way !!!!  or Which magazine said it was  or Daily Mail or guy in the pub or by the pool!!

David Searl You and the Law in Spain -  please have a look at this

please believe me its hard having to say to someone who has just lost husband or wife I am sorry I don't know how you can avoid trhis tax bill now.. I am not going to respond to this thread anymore. Good luck Maria - always remember you can help some of the people some of the time but not all of the people all of the time.

But maria, my point was that if the will is not contested and is an English will, you can please yourself to whom you leave your estate - and you can ignore the Spanish law's attempt to dictate to you who gets what.  

 Jek:

AS a Uk National, you have that freedom to leave your assets to whoever you want as the Law applicable will be UK Law.

UK law just send you to be governed in your inheritance affairs, by virtue of rules of International Private Law if your only asset is a real estate and is located in Spain.

In the rest of the cases, of course you have freedom to testate according to the UK legislation.

When you grant a Spanish will, this dos not mean that you are submitting your Inheritance to Spanish Law, it just means that you are using a Spanish proffessional ( the one who can create titles with access to the Land Registry) for expressing your will in relation  to your Spanish assets.

I find this all a bit confusing.  If I cite my own situation perhaps Maria, you can comment.

We used a firm of UK Will writers who advised us to have our UK Wills (one each for my partner and myself) drawn up to include  our  worldwide assets. Our only asset outside of the UK is our spanish holiday home and money in our joint spanish bank account.

We have since been told we should particularly exclude our spanish assets but haven't made any changes as yet!

Our beneficiaries are firstly each other and then when the last of us to survive dies then siblings and family members (we have no children).

Our spanish Wills which were drawn up by our spanish solicitor when we bought our spanish property, includes only our spanish assets.

Our spanish Wills are the most recent and the beneficiaries are the same as above. 

If I understand things correctly our UK Wills, although they are older, will take precedent over our spanish Wills as we are domiciled and permanently resident in the UK but , and this is where I'm confused ,in the event of the first of us to die will the surviving partner be subject to spanish inheritence laws based on the 50% of the property they will inherit? 

I hope you can finally clarify this for me.

Thank you

pumpkin

As far as Spain is concerned your Spanish will is the latest and stands as far as Spanish based assets are concerned.

You need to be careful if revising your UK will that you do not unintentionally revoke the earlier Spanish will. But UK solicitors now ask about overseas assets/wills and it is now so common for people to own properties overseas.

Thanks, Faro  - so, to be clear- as it stands on the earlier of mine or my partner's death the surviving partner will pay inheritence tax in Spain on spanish assets and UK inheritence tax on UK and spanish assets?

Sounds like we may be better just having the UK Will covering worldwide assets as my understanding of spanish inheritence tax where partners are not married is that it is hugely expensive!

Either way the Spanish property forms part of your UK estate - on the basis you are UK domiciled

and either way your Spanish property will be subject to Spanish inheritance tax. (regardless of which will is probated in Spain).

But any Spanish inheritance tax paid can be claimed against UK inheritance tax payable on the same asset.

It may be you wish to consider leaving the Spanish property to whoever you intend ultimately inheriting your 50% - bypassing your unmarried partner?

Also your UK and Spanish solicitor need to have a chat and understanding property values, total value of estate (UK + Spain), your wishes - consider and agree what might work best.

But ignore any half baked advice on UK or off-shore company structures or tax wrappers or whatever .....

Thanks again, Faro

With reference to WH Smith forms, although I would not necessarily recommend going that route, my mother used one and we didn't have any difficulties with her will.  This could have been helped by the fact that I was the executor of her will, so (with the agreement of my younger brothers) ensured that her wishes were met, which included an additional page that she had written and put with her will.  The solicitor was happy to agree with our proposals once he had studied all the papers.

I don't know what would have happened though if the three of us had disagreed!

Sue

 Pumpkin,

at the moment of your death, both the Uk and the Spanish one will be valid if they are a legal title and are respectful to the Inheritance Law of your nationality.

If there are contradictions, the oldest one will prevail, always provided it is respectful to the Inheritance Law of your nationality.

Spanish Inheritance Law applies to Uk nationals if, and only if: the only asset is a estate and it is located in Spain. Why? Because they are Spanish residents and therefore Spaniah Law applies to them? NO, that is not the answer.

The answer is that Spanish Law applies to that case becuase UK Inheritance Law, which is your Inheritance Law, the one corresponding to your nationality re-send your inheritance affiairs to be regulated by the Spanish inheritance Law.

In my experience of probate in Spain and probate in UK/N. Ireland/Rep. of reland most people have fairly simple affairs and hence fairly simple/short wills - in fact many are as short as one page and rarely exceed 2 pages. Hence why I don't care if deceased has Spanish or overseas will.

Only high net worth individuals have complex affairs and they will pay thousands for tax advice and also review each year. One such client gave me a draft of his UK will to comment on its use in Spain which was 20 pages long and incredibly complex as to the appointment of executors/trustees/trust funds etc. There is no way that will could easily be dealt with in Spain so he executed a simple Spanish will. The UK will was so complex I don't think even any official Spanish legal translator could have made sense of translating it into Spanish and the Spanish tax authorities would have really dug their teeth into it ......

Also majority of foreign people remain domiciled in their home country so advice should be taken from a solicitor in their home country who will if necessary consult with their Spanish lawyer.

But also bear in mind if you do not pay a big fee then you cannot really expect your Spanish lawyer to go out of their way to give you complex tax advice but then as I said most have fairly simple affairs.

But whatever you do I recommend at least drawing up a will in one's home country rather than dying intestate. Also most people these days don't want to spend money and in UK/Ireland many solicitors will prepare wills for free or a nominal fee - and on that topic between 14-25 March many solicitors are participating in an Amnesty International free will making fortnight - of couse you might be expected to leave a few pound to Amnesty International. One such firm participating is Simpson Miller (I've used them before for discount UK conveyancing - highly recommended) and they will even take instructions over the phone or email for people who do not want or like visiting solicitors. And of course no need to use a notary in UK so that saves on cost also

Check out the attached link and if you are one of the many who have no will at at all then now is your chance to do something about it!

http://www.amnesty.org.uk/content.asp?CategoryID=11777

MariadeCastro - Our Spanish property is in the name of myself and my two sons.  We have a Spanish will that also leaves the property to the surviving owners on death.

On each death are you saying we would be subject to Inheritance Tax in Spain?  Surely the property is still owned by the original people on the Deeds.  Your advice would be very welcome.

Pinot

Dear Pinot:

Yes, on each death, the heirs acquiring bigger quotas of the house will have to pay taxes on the value of the quota increase.

There are important reductions if the house is the permanent dwelling and also sue to family links if you are Spanish residents.

Best,

Maria

Pinot

Depending on the value of the property there may not be that much inheritance tax to pay.

Eg - say the property is worth EUR120k and you each own a third and you die first then each of your sons would inherit 50% of your third share - ie EUR20k each against which they can claim a deduction of EUR16k - so the inheritance tax payable would be only EUR300.

Of course the big cost in Spain is always lawyers + notary + property registry + plusvalia tax etc - so I would say budget another EUR4k-5k or so to cover the cost of Spanish probate.