Transferring property into sole name

Not sure where to post this, so i post it here.

My father have passed away and he owns in joint names with his wife a Spanish property and a UK property.  They have also created  a will stating what happens to the Spanish property when he dies.

Now this is the issue.  He created a will in the UK 6 months after the spanish will which states: his property in the UK and abroad will be put into trust, thus meaning the UK will now superceeds the spanish will.

My question is can his wife go to spain and transfer the spanish property into her name to make it not form part of the probate process in the UK.

Any suggestions much appreciated

The simple answer is "no".  If the Spanish will goes through the Spanish courts, they will obviously apply Spanish law.  Under Spanish law, the main benificiaries will be the children and the maximum a wife can take is one third of your father's half.   One third of his Spanish estate must be shared equally among his natural children; one third to any direct descendant; and one third to whomever he chooses.   But it is very complicated.  You don't want to be relying on advice from a forum if it gets heavy.  You'd need a Spanish lawyer expert in this field.

 Dear Propolis:

I would need to see the wording of the Spanish will, which you say was made later than the UK one. It is possible that the Spanish will is fully legal and enforceable if its respect the rules of the Inheritance applicable Law, which, as a general rule, is the Law of nationality.

These international wills/inheritance/probate deserve very much being treated individually and every circumsntances make each on of these a different one.

Dear Propolis

You will need to consult with an English solicitor specialising in Spanish probate as this can be quite a complex area. There are also some practising in Spain specialising in probate UK/Spanish probate.

Your solicitor will tell you if the later executed UK will has actually revoked the earlier executed Spanish will. There may well be definitions in the UK will. Also did the UK will exclude Spanish based assets etc? For complex matters it's also advisable to seek Counsels (ie Barrister) opinion.

Either way if the ultimate beneficiaries are the same you could just deal with the Spanish property using the Spanish will.

The problem sometimes arising when a later executed UK will accidently revokes an earlier executed Spanish/foreign will is that the Spanish property then falls into the residuary or catchall clause and could end up going to some charity or other relative when that was not the intention ie beneficiaries are different under both wills - ie the Spanish will may say Spanish property goes to wife and if under the English will the Spansih property falls into the residuary or catchall clause then the Spanish property could end up going to the cats and dogs home or some other relative!

Example of a residuary or catchall clause

I GIVE DEVISE AND BEQUEATH…………….. the rest residue and remainder of my estate of whatsoever nature and wheresoever situate.

Also it's somewhat unusual in a simple estate to create trusts other than to give to Trustess UPON TRUST to sell and convert into money. The use of trusts makes it even more complex and few Spanish lawyers understand the use of trusts.

Maria

The question is not which law applies but under which will the estate should be probated.

From Propolis's initial posting it would appear the deceased (her father) firstly made a Spanish will and then it would appear 6 months later made a UK will which may have had the effect of revoking the earlier executed Spanish will.

I am also guessing from the way the posting is worded the deceased's wife may not be the poster's mother and it is with these type of family situations there can be problems and lengthy legal battles fought .....

 In order to see what of the two wills will apply, we need to see what is the inhritance law applicable to his decession and from there to see is wills made ( either in the Uk or Spain) is respectful to the regime he is under.

If the later UK will has revoked the earlier Spanish will then that has happened and no matter which countries inheritance laws are followed a revoked will cannot be re-instated?

Furthermore article 9 of the civil code provides that the substantive law relating to the estate of a foreign national is the law of the country of his nationality and this person would appear to be UK domiciled and also had immoveable property in the UK and therefore had free disposition of assets but that's not to say this point could not be challenged under Spains enforced heirs rules but it would be a very weak challenge and still not lead to a revoked will being re-instated.

If a direct descendant of the deceased challenges the UK will in the Spanish courts, the Spanish courts will look at the UK law and find that it applies Spanish law to the disposal of property. So they will apply Spanish law – and anyone who would have inherited under the Spanish Law of Obligatory Heirs will therefore have their challenge upheld.

The reality is that the OP should be not be listening to alternative views from a forum.  Get yourself a good lawyer cos it is seriously complicated.

 Even if the UK will is more recent, it this is not respectful to the Law which governs Inheritances, it can be challenged by legal heirs. In tge case you refer, as the deceased in UK national and had properties there, UK Inheritance will apply and therefore there will be free disposition of assets, but, it would not be the same if he had no property in the UK. Even if his last will was the UK one.

I agree with Jek that these matters deserve a careful and individual attention by a lawyer

ok - I think we are pretty much in agreement so to summarise the starting point is for Propolis to seek legal expert advice on the later UK will and to ascertain if that will has fully revoked the earlier Spanish will or if there is uncertainty in that regard and then everything else will follow from there.

Also please bear in mind Spanish assets can be administered under a valid UK will and that it is not necessary to draw up a Spanish will although it is generally recommended to execute a will in every jurisdiction in which one has assets.

Also once a Spanish will has been executed then great care must be taken not to accidently revoke that will and in that regard I recommend using Englsih solicitors and not will writers or will packs bought from WHS as the standard wording in these packs may well revoke the Spanish will.

I have seen many problems in Spain arising from second relationships and battles fought between children and step mother/father etc so if that applies then extra consideration is required!!!

But it's very interesting what is happening in the UK at the moment as the legal profession is going through great change and we now have QualitySolicitors on location in WHS (check out www.qualitysolicitors.com). More than 200 firms have come together under one common brand although each firm will keep its own identity. It would be great to see the Spanish legal profession evolve in a similar manner and push for a quality service.

Also of great interest is the law societies own quality conveyancing scheme. http://www.lawsociety.org.uk/productsandservices/accreditation/conveyancingqualityscheme.page

Spanish law societies could learn so much from the law society of England & Wales and start to also build confidence in its members and member firms but I waste my breath on these people.

Hi Everyone,

And thank you very much for all the replies and advice.

Just to update:

My father is British, has a UK property and lived all his live in the UK.  My real mother died and my father re-married.

My step mother has one daughter

My father bought the Spanish property which they went to 4 times a year.

Just some exact notes from his will (prepared by will writers):

I W**** D****** (date of birth 27 April 19**) ot 17 S******** Street ***** ***** YO8 8YO REVOKE all former wills and testamentary dispositions and DECLARE this to be my last will ('my Will')

In my Will where the context so admits:

          (a)  'my Estate' shall mean:
                     (i)  All my real and personal property of every kind wherever situate including all property of every kind wherever situate over which I have a general power of appointment and ...........

The UK will was made 6 months after the Spanish will

So thank you again for all the information - this realy means a lot to me

Propolis

Very standard wording and extremely clear on both points in that:-

1 - He revoked all former wills

2 - Intended his UK will to deal with all assets wheresoever situate.

Next step is to find a good Spanish probate solicitor but make sure the firm you select actually has solicitors as there are many firms pretending to be law firms when they are anything but. Some firms are just resllers and should be avoided. You should  also check that the solicitors/lawyers hold current practising certificates from the law societies they claim membership.

Also you should obtain fee quotes for 2-3 reputable firms as costs can vary considerably.

An explanation, which I think will clarify:

UK will´s disposition apply MAINLY becuase Law applicable to his inheritance allow this. UK Law applies due to having both UK nationality and assets,  and UK Law allows this will to display its effects.

If his last will was the UK one and this intended to deal with assets worldwide, but Inheritance applicable Law did not allow the dispositions of the will, this would not be applicable.

For instance:  the deceased leaves a will naming an NGO as his heirs. The deceased just have real estate assets in Spain and spanish residency. He has UK nationality and will. This will does not apply.

Why? Becuase this is not respecting his legal heirs according to Spanish Law, the UK will does not apply.

Why? Becuase Law of his nationality ( UK Law) forward the inheritance to Spanish Law ( due to residency and estate assets) and Spanish Law has the restrictions of legal heirs.

In short and clear terms.:a will is a document which at the end will be  always checked to be respectful with applicable Inhieritance Law.

In even shorter and simpler terms: Law is above testament.

Anyone in this situation and particularly those in second relationships should take expert legal advice and deal with matters whilst they are alive rather than leaving the matter to be resolved in the courts with lawyers fees reducing the value of any inheritance.