If you own a house in another country, you are most strongly advised to write a Will in that country to cover the property there – In Spain this means visiting notary and having the document drawn up in Spanish.
When thinking about who should receive your assets, it is important that you consider all your possessions, not just individual items in isolation. A foreign Will is as much part of your estate planning as an English Will, and hence you should integrate your English and foreign Wills.
They should be written at the same time, designed to complement each other – if one is updated the other should be too.
As a UK citizen, you are not obliged to follow normal Spanish succession laws. You should take great care when you draft your Spanish Will and if your will has been drawn up for some time you should check to make sure it complies with current legislation.
As in any legal document, make sure you understand the full implications of what you are signing.
In theory, the Spanish law of enforced inheritance applies equally to foreigners with property in Spain, restricting the disposal of this property as it does for Spaniards. This is simply because most countries apply the law of the land where the property is located. However, Article 9 of the Spanish Civil Code provides that when a foreign property owner dies, even if he holds an official residence permit, the disposal of any assets he has in Spain will be governed by his own national law, not Spanish law.
If your own country’s law permits free disposal of the estate, this frees you from the Spanish law of compulsory heirs. Both the English and American laws provide for free disposition of assets but Scottish and German laws require some part of the estate going to the children. Whilst this is very good news for the English, it does not unfortunately free them from Spanish inheritance tax.
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This freedom to dispose of assets as you wish only applies if there is a current Spanish or foreign will. To die intestate will result in Spanish law being applied and assets being distributed among the children. So far so good but now the situation becomes a little more complex because a number of countries including Great Britain have laws which say that the disposition of real property such as land, houses and apartments will be governed by the laws of the country where the deceased is legally domiciled at the time of his death.
So on the one hand we have Spanish law saying that English law will apply and on the other hand English law saying that Spanish law will apply because that’s where the property is located. In theory an Englishman is subject to the Spanish law which means he can freely dispose of only one third of his assets in Spain.
This is the theory but in practice things are different. Any foreigner can make a Spanish will bequeathing his Spanish property to any person of his choice as long as his own national law is ruled by the principle of free disposition of property by testament. The Spanish Registrar of Wills accepts this. Come the time, the will is executed and the inheritor takes possession of his new property. Spanish lawyers routinely make such wills. In a nutshell, this means that if you are British, you can make a Spanish will leaving your Spanish property to whoever you choose.
However, something to bear in mind is the fact that if you leave your property to your favourite daughter and cut out your black sheep son, it could be that he takes expert advice and contest the will on the grounds that Spanish law stipulates that half of the inheritance is his and win his case. This situation can be avoided by transferring the title deed of the property to your chosen heir while you are still alive. Remember, where there’s a will – there’s relations!
When making a will remember in Spain you do not need a lawyer to make your will – you can do this in front of the Notary. This is all right if your instructions are straight forward and there are no minors involved. A dual language “Testamento Abierto” will suffice, but carrying out your instructions is not the same thing as advising you in your best interests, so if you have any doubts consult a lawyer (Abogado)
If you need any assistance following a bereavement including funeral arrangements and all paperwork following a death please contact us for further information
A living will is registered officially in the Canary Islands
Inscripción en el registro de Manifestaciones Anticipadas de Voluntad.
More information here