Wills in Alicante: Important Information

single.php

Posted and filed under Wills, Probate, Donation and Inheritance.

make a Spanish will

Previous Information on making a Spanish Wills

In 2015, I wrote an article following a new European Probate Law. We advised that it only applied to Residents of Spain and that British, Irish, and Danish people were unaffected.

Thus for these countries, their national law would apply. Whether or not they included a new clause in their Spanish Will saying that the person making the Will was choosing their national law for their inheritance. 

We advised people to change their Wills only if they wanted to, to feel a peace of mind but not to feel pressurised to have the expense.

Thereby depriving ourselves of business but being honest about the situation at that time.

Anyone of ANOTHER NATIONALITY than British, Irish and Danish from August 2015. We stressed that if they had already made their Spanish Will, then they should change the Spanish Will. They must to include a clause refusing expressly the application of Spanish Law, choosing the Law of their own Country. This was important and remains so.

Spanish Wills in 2020

Our advice was correct, but because of events over the past few years, a great deal of confusion has arisen with Probate law. 

We have not heard of any problems until recently but it has now become clear to us that when you have a property in Spain. Whether you are Resident or a Non-Resident of Spain, if you spend close to or more than half a year in Spain (not consecutively) and if you have any Spanish assets (even just a bank account), for peace of mind you should make a Spanish Will. In this Will you should choose your National Law in a clause. 

This is now very important as more and more cases are arising with problems in this respect in Spain.

Per European Regulation No 650/2012, the applicable law to an Inheritance is the law of the country where the deceased had his/her habitual residence at the time of death, however, Article 22 says it is possible to choose your own law.

Just because you pay non- resident tax and you do not think you are a resident of Spain, if you have property in Spain, you could be at risk of matters not going the way you would have liked when you die.

Because, particularly, if there is no Will at all, it could possibly be challenged that you were resident in Spain when you died and Spanish rules of enforced inheritors could apply.

Given that the British and Irish rejected the European Probate Law, Britain and Ireland have their own rules on Succession for their nationals, and furthermore, there is the problem that Spain accepted the EU law, the Courts on these cases are still not clear on this issue. Brexit will complicate matters further. 

It is quite frankly a bit of a mess in Europe at the moment regarding cross-border probate law!

Our Strong Recommendation 

A big problem can arise when a British or Irish person is domiciled in Spain or spends more than half a year in Spain (not consecutive days necessarily), and they do not have a Will in Spain, nor in their home Country.

In this case, they need to apply for a letter of administration to prove who the inheritor is, in which case the Probate Department authorises the executor to USE THE LAW APPLICABLE TO THAT INHERITANCE to complete the probate.

Then is when the problem arises, because the executor must use the right law. And if you are domiciled in Spain, the Law applicable is Spanish Law.

Spanish Law does not allow a spouse to inherit all assets if there are children.

Our recommendation for UK and Irish

We wish to advise all of our UK and Irish clients with assets in Spain (property or bank accounts etc.), whether non-resident or resident in Spain the following:-

1) If you do not have any form of Will at all, please make a Spanish Will as soon as you are able to, including this important clause.

2) If you already have a Will, made at home, please consider making a Spanish Will, including this important clause.

 Your Will may be able to be used in Spain after translation and a probate in your home country, but for peace of mind, a Spanish Will is better.

3) If you have made a Spanish Will before 2015. The Will is unlikely to have the clause and you do not have to make a new Will, but for peace of mind, you should consider it.

4) If you have made a Spanish Will since 2015. Please send us this or bring it into our office in La Zenia and we will check it for free. If you made the Will with us from 2015 onwards we will have included the clause.

5) If you have children by a first marriage and have remarried and wish your assets to pass to your spouse.  I cannot stress highly enough the importance of making a Spanish Will.  Please contact us in this case

Spanish will: Prices

Any queries please contact Amanda.  Making a Will is simple. The next time you are going to be near La Zenia, please let us know a week or a few days before and we can prepare it and take you to the Notary to translate.

This costs 181.50€ per Will or 338.80€ per couple including VAT. And it is well worth the expense … If you have any legal queries we can refer to our solicitors. 

If you are also interested in knowing about donating your Spanish property to your children please ask as our solicitors. We can assist with this matter and it is a very good time to do this tax-wise.

Contact us now for further information.

Amanda Thomas

29 Comments

  • Cheredon Ellis

    Hi there, I’m hoping you can advice me on what to do? my dad is no longer living in Spain as he became a recluse so he was brought back to England, I have taken over all bills for the past 6 years and spend just 4 weeks a year in Spain, I his daughter would like to know if we can get a Spanish will drawn up in the Uk as he doesn’t want to return to the Country ?

    • Nicola Ryan

      Good Morning Cheredon,

      We are sorry to hear about your Dad, as this is a complex matter we have passed your enquiry to Amanda in the legal department, Amanda will be in contact with you via email shortly. In the meantime should you have any further queries please do not hesitate to contact us.

      Kind regards
      Nicola

  • Tracey stapleton

    I am a married resident in Spain but I have a son from my first marriage and my husband has a step daughter. We have not made a will, we have been here two years a resident for 12 months what happens if one of us dies

    • Amanda Thomas

      Hi Tracey, If one of you pass away and there is no Spanish Will but a UK Will (or one from your home country) then the Spanish authorities will require a Grant of Probate or equivalent from another home country,to prove the next of kin. This is quite costly and takes time and also needs translating, apostilling etc. Likewise if there is no Will at all Letters of Administration will be required to prove the next of kin. THis would be the spouse, however if you are Residents of Spain the natural child of the deceased could challenge this. I strongly recommend that you each make a Spanish Will. They are inexpensive and very important both for clarification of wishes and also it saves expense and time in the long run. Kind regards,

  • Mrs Tina Richards

    Hi can you give me some advise.My aunt and uncle own a flat in Spain which they have brought and paid for .My uncle is serving a prison sentence and my aunt wants to write a will leaving the flat to me her niece .My uncle has given her power of eternity via a solicitor in England .But his passport is out of date ?we have been told that we can’t change the deeds into my aunts name with out his current passport which we can not renew what can we do.
    If my aunt writes a will is it legal if done by a Spanish solicitor in Spain .what sort price would a will cost ?

    • Nicola Ryan

      Good Afternoon Tina,

      Thank you for your enquiry. Amanda, our paralegal will be in contact with you, via email, to discuss the property name change in more detail.

      The power of attorney in the UK would only cover the UK so a Spanish power of attorney would have to be done to cover anything in Spain.

      All wills in Spain have to be signed in front of a Notary , this will ensure it is legal. We hope this helps.

      Kind regards
      Nicola

  • Laura Grayson

    My dad re-married and lived in Spain until he died in 2010. I assumed all his assets went to my step mum and what would be left after her passing, will be left to my brother, step brother and myself. However, I have never seen a copy of the will and she is selling the Spanish house. I also understand that she has been giving money to her son. If my dad made a Spanish will, are there certain obligatory heirs to my dad’s assets?

    • Nicola Ryan

      Good Afternoon Laura,

      We understand your concern.

      Amanda our paralegal, will be in contact with you to discuss the matter further. Should you have any further queries in the meantime please do not hesitate to contact us.

      Kind regards
      Nicola

  • Lawrence Mitchell

    A quick question, I’m married, I understand the need for a will if either partner has children, either their own or from a previous relationship, but as a couple without any children and now far too old to ever have any, is there any reason to get a Spanish will?

    • Nicola Ryan

      Good Afternoon Lawrence,

      This is a very good question.

      Yes it is still important to have a Spanish will. If you do not have a Spanish will in place, a probate has to be done, which takes a very long time and costs a lot of money for whoever inherits.

      You and your wife should make a will to pass your estate to each other or you will have this issue. If for example, there is one surviving spouse with no will, when they pass, the state will look for the next of kin and they would have this issue and added cost. When people pass, it can be a very stressful time, having a will in place ensures this stress is kept to a minimum. We hope this helps.

      Should you need any assistance making a will, please do not hesitate to contact us, we would be delighted to help.
      Kind regards
      Nicola

  • Sylvia Moore

    My partner of 14 years wants to change his Spanish will leaving all his assets to me as his family don’t want anything.I believe he can put in a clause ‘English Law’ will this still be the case after UK leaves the EU?

    • Nicola Ryan

      Good Afternoon Sylvia,

      Thank you for your enquiry.

      If your partner wants to change the details on his Will, a new Will is required and yes best to ensure it states that the Will follows the law of his home country. The brexit will not affect this. We hope this helps.

      Should your partner need any assistance with making a new Will, please do not hesitate to contact us, we would be delighted to help him.
      Kind regards
      Nicola

  • John

    Does one have to notify the local town hall/city hall in Alicante when their parents died in the UK? What happens if this hasn’t been done? What happens if the spouse has not given any of the Spanish asset to their children? From the financial proceeds of the sale of the Spanish estate does a Spanish Letter of Acceptance for the forced heirs need to be completed? What other formalities need to be completed (legal, tax etc.)? If others have failed to complete all the legal, financial and tax documents are these considered crimes in Spanish and UK inheritance laws?

    • Nicola Ryan

      Good Afternoon John,

      Thank you for your enquiry.

      Amanda, our paralegal will be in contact with you shortly to discuss this matter further. In the meantime, should you have any further queries please do not hesitate to contact us.
      Kind regards
      Nicola

  • Stephen Hall

    My wife and I bought a property in Spain in 2002 before we were married. We got married in 2008. Will our Spanish Will made when we bought the property, still be valid?

    • Nicola Ryan

      Good Afternoon Stephen,

      Thank you for your enquiry.

      We feel it would be best to have your will checked and possibly re-written due to the date they were made.

      In August 2015, following the new European law, the probate proceeding changed. From that date, the Law applicable for Wills and Probates is the Law of the country where the deceased person lives, nor their national Law, as before. Britian and Ireland rejected the Act, but it is our advice now that there should still be a clause in Spanish Wills saying that you choose your own country law, meaning your assets can be passed to anyone of your choice, unlike the Spanish Law where the assets automatically go to the children with your spouse having full use of them until they pass.

      If your will does not have this clause and needs to be re-written, please do not hesitate to contact us , we would be delighted to help.
      Kind regards
      Nicola.

  • Anthony Nicholls

    I have 2 daughters unseen or contact for 30 years.using English law can I leave all my property and assets to my Dutch friend

    • Nicola Ryan

      Good Afternoon Anthony,

      Thank you for your enquiry.

      As long as your will has the clause that it “follows the law of your own country”, you can leave your property to who ever you wish. Should you need any assistance with this or have any questions regarding inheritance tax, please do not hesitate to contact us, we would be delighted to help.

      Kind regards
      Nicola

  • Christina

    Hi. Could you please provide an example of a statement which states that you wish your will to be administered within the national law of your own country of citizenship rather than country of legal residency?. ?Presume this should be mirrored in your english and spanish translated will? Thank you!

    • Amanda Thomas

      Dear Christina, We cannot give advice on how to word a British Will as it is a different legal jurisdiction, I would suggest you have a look on the gov.uk website perhaps. A Spanish Will needs to be made in Spain at a Notary to be valid as a Spanish Will otherwise the authorities here would need Grant of Probate from the UK. When you are able to travel I would advise making a Spanish Will in Spain here at a Notary to cover Spanish assets. Kind regards

  • Maz

    A widowed Irish friend, living in Spain, has made a Spanish Will leaving his property to his close friend who resides in America. Should my widowed friend decide to get married, would this make his Spanish Will null and void, would his new spouse automatically inherit his property even though he has willed it to a friend.

    • Amanda Thomas

      Dear Maz, No, it would not. In Spain, his Spanish Will would not be invalidated by marriage. Though to make things crystal clear and not invite potential problems, I would advise him making a new Will if possible if he remarries. Kind regards

  • Karen Morris

    I have a Spanish will but no a uk one. I am a resident
    My husband is Italian a Spanish resident but doesn’t have a will in any country and he has 2 children to his first marriage
    I’m aware any assets could be prioritised to his children rather than me. What do you suggest to ensure both our Spanish and English assets are covered and legal thank you kate

    • Jane

      Hi Karen

      Yes we would suggest you have the appropriate wills drawn up. Please call the office and we can get more details and give you a quote.

      Kind Regards

      Jane

  • Jenny May

    Hi! My mum has a Spanish Will leaving a property to my dad. They divorced more than 10 years ago so she immediately changed her Spanish and English Will so that the property will be left to me. She passed recently and when we started to execute the Will, we found out that the Spanish will is not stamped by the notary and now the previous Spanish Will where my dad is the executioner is the valid one. Now my dad wants to execute the Will which is against my mother’s wishes. Is there anyway we can contest the previous Will? We now only have an English Will which is signed by the notary in the UK.

    • Amanda Thomas

      Dear Jenny, To advise on this we need to see the documentation. Can you email me copies of the Last Will Certificate from Madrid, the Spanish Will and the English Will please, With kind regards, Amanda

  • Allan Warren

    My wife and I have been full residents in Spain for 6 years and made our Spanish wills through an abogado and duly signed at the Notary office to be administered using the UK laws of inheritance to mirror my existing UK will.
    Everything is to pass to my wife then subsequently to my son who has been resident in Spain for 8 years. We have no assets in the UK apart from bank/pension payments.
    The will I signed i assume is a standard format with Spanish on one side and the English translation on the other which clearly states to be administered as UK law.
    My confusion is why did I have to name my previous wife, we divorced 40 years ago and had no children, everything was divided equally at the time and any beneficiary rights to my pensions etc were waived.
    She is not named as a beneficiary on my English will nor on the beneficiary side of my Spanish will.
    Is this normal under Spanish law or is it something I need to address to ensure all my assets pass to my present wife and then to my son. I want to ensure everything goes smoothly when the time comes with no unnecessary legal fees or delay in settlement.

    • Amanda Thomas

      Dear Allan, It is a formal legal requirement in Spain. It is normal. Your Will must say that you are choosing your national law of British nationality as then you can choose who your heir is and there should not be any problem. Just make sure that clause is there. But yes there is a lot of detail included in the Spanish Wills as a formal requirement. With kind regards.

    • Nicola Ryan

      Good Afternoon Allan,

      Thank you for your enquiry.

      The additional information required for the will, the information of any previous marriages or the names of your parents etc, is merely a way to help identify you in the event there are more than one “Allan Warren” or “Steven Smith”. This information will ensure the Solicitor/courts have the correct will for the correct person. We hope this helps and puts your mind to rest.

      Kind regards
      Nicola

Leave a Reply

Your email address will not be published. Required fields are marked *

*

*

*

Looking for a solution?

Feel free to get in touch with any enquiries and one of our friendly members of staff will get back to you as soon as possible.

Form loading.