Property in Spain? Advice on Wills and what to avoid
Article provided by Thy Will Be Done:
If you have property in Spain, it is important that you:
- Have a Spanish Will covering your Spanish assets
- Have a separate Will specifically for your assets in the UK
- Ensure your Spanish Will makes reference to what is known as a 'Brussels IV clause' or more formally an EU succession 650/2012 clause
- Ensure your Spanish Will accurately determines the law of the correct jurisdiction within the UK that you wish to govern the succession of your Spanish estate which can be; England and Wales, Scotland, Northern Ireland, The isle of Man, Jersey and Guernsey.
- Check, if you have an existing Spanish Will, that it does not refer to British or UK law as neither of these actually exist legally.
What is the process of organising a Spanish Will and what to be aware of?
You need to engage an Abogado (solicitor) or a reputable Will writer/legal representative to produce your Spanish Will. The Will should be written in a dual-column format which is Spanish on the left-hand side and English on the right-hand side to ensure that your beneficiaries can understand it when the time comes.
Once written the Will needs to be notarised and the notary you choose should be contacted in advance to ensure that they will accept dual column format and not insist on a translator being present because that will significantly increase your costs on top of that which you will already have paid to have the Will produced.
The notary will then provide you with what is called a 'copia simple' which you take away and the original is then registered by the notary in Madrid – In Spain, you do not actually get a copy of the registered Will.
Things to note that you can and cannot do in a Spanish Will:
You cannot elect one beneficiary over another in Spain, they all have to act together, or you must elect a person or legal entity that is not a beneficiary to act as the executor. The more you add to a Will in terms of reserves for example, the more expensive the notary becomes as they charge based on the amount of content within a Will, so it is best just to have your beneficiaries listed with one reserve for each for example.
Married couples should be aware that the process of probate happens on both deaths even if everything is being left to each other. Where a property is owned by a couple this will automatically be considered as 50/50 unless a separate legal document states otherwise, it is not jointly owned as with an English property, and as such the share of the deceased’s property will always be taken into consideration in terms of its value during the probate process and will not automatically pass to the surviving co-owner outside of the estate.
Trusts do not exist in Spain, but a clause called a usufruct clause can prevent the sideways disinheritance of beneficiaries in the future should a surviving partner/spouse marry or remarry in the future. It allows the partner/spouse to continue living in the property but not actually own it, ensuring the listed beneficiaries of the first to die are guaranteed to get their share when the survivor dies or the property is sold
Inheritance tax and other matters concerning inheritance:
Inheritance tax is a complex issue in Spain as it is not generalised as it is in the UK with some regions (such as Valencia) having no inheritance tax at all and others having significant taxes depending on the relationship of the beneficiary to the deceased, so any inheritance tax mitigation strategies should be discussed with a professional advisor in advance of making a Will.
A beneficiary of a Spanish asset or share thereof, wherever they are located in the World, must obtain a Spanish NIE number to receive their inheritance and will also (if using a legal advisor/Abogado) grant power of attorney for that person to work on their behalf and represent them accordingly.
Conclusion:
The law and rules surrounding estates, Wills, inheritance, and tax can be complex and it is advisable to seek professional advice on these matters and certainly, if you do not have a Will at all, to do this as soon as is practicable as dying without a Will for your Spanish estate can be specifically problematic if partners and spouses are involved in conjunction with children because children, under Spanish law, must be favoured and no asset can actually be left to a Spouse/beneficiary over a child in this scenario, which clearly presents its own issues from the outset.
ABOUT THE AUTHOR:
Contact Thy Will Be Done in the UK on 0800 668 11 64 or in Spain on 865 756 058 or use their contact form which can be found at www.thywill.es and, they will be able to help with all the above with the addition that, those individuals with Spanish property who cannot get to Spain to arrange their Wills or a notary can be accommodated without actually having to leave the UK.
The Mill Building
31-35 Chatsworth Road
Worthing
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www.thywill.es
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