A client contacted us very concerned about his Will and the new Last Will in Spain. He asked:
At the beginning of the year (approx) I had a new Will prepared by yourselves. Do I now have to have a clause added if I want the new UK law added for inheritance purposes ? This has been brought to my attention. Many thanks.
There has been a lot of confusion and disagreement on the new Last Will in Spain, even amongst lawyers. This is what our lawyer prepared for us on the topic, and it has been confirmed by the local Notary by us independently to be her view:
Information regarding the new Last Will in Spain.
Following the new European Law, the Probate proceeding changes on the 17/08/2015.
FIRSTLY THIS ONLY APPLIES TO RESIDENTS OF SPAIN. Please ignore law firms who contact you suggesting you change your Will if you are not a Resident.
The most important changes are:
- The regulation does not affect UK, Ireland nor Denmark, because these countries didn’t accept this Act. SO ALL BRITISH; IRISH AND DANISH PEOPLE ARE UNAFFECTED.
- For all other nationalities, from that date, the Law applicable for Wills and Probates will be the Law of the country where the deceased person lives, nor the national Law, as now. This does not apply again to British, Irish and Danish nationals.
- Therefore, the whole process will be done just in one Country, and using the Law of this Country (where the deceased person lives).
- If you are not British, Irish or Danish living in Spain and you want to use the Law of your country, instead of Spanish Law, then you have to change the Will including a clause refusing expressly the application of Spanish Law, choosing the Law of your Country.
- If you are British, Irish or Danish living in Spain and you want to use the Law of Spain, instead of your national Law, then you have to change the Will including a clause refusing expressly your Law, choosing Spanish Law.
- There are a few exemptions to this (relating mainly to jurisdictions and litigations, not too relevant to Wills). One is that this regulation won´t be applicable if despite you living in one country you have stronger ties with another Country. An example, if you are French living and renting in Spain, but you have houses only in France, and you work for a French company….
So, in summary, from August 2015, anyone of ANOTHER NATIONALITY than British, Irish and Danish (and we know we have many) if you have made your Spanish Will, then you may have to change the Will including a clause refusing expressly the application of Spanish Law, choosing the Law of your Country.
This law is over 200 pages long so we cannot cover it all, but if you have any specific questions, please let us know.
IF YOU HAVE NOT MADE A WILL, we would strongly advise you to do so.
So basically, if you are British, as you are, you do not need to change your Will to include the clause. We do not tell people you need to, just to get money. We always give the correct, honest advice.
It is not so bad if the clause was not in and the Notary made it apply anyway, just 2/3 to your children and if no children, your parents, and a third to who you choose. For most people it does not matter. If in September we find anything different when we administer probates, we will let you know. If someone does not have a Will though, please please ask them to come to us. Or if they are not British Irish or Danish and Resident with assets here.
If we can help with a Spanish Will, then contact us and we will soon be in touch.