SIGN A WILL IN SPAIN

This guide do not substitute professional advice, which we will be happy to provide on request.

Do I actually need to make a Spanish will?

No. There are, however, good reasons for doing so. Although your English will -if you have one -will probably be recognised as valid by the Spanish authorities, the cost of having it recognised is usually
far greater than the cost of dealing with a "proper" Spanish will. In addition, you may want to make some quite complicated arrangements in your English will. These may simply not be appropriate in the case of what are often a limited number of assets located in Spain. Worse still, they may lead to considerable extra tax being payable in Spain.

The Problems when making an English will

You may already have made a Spanish will dealing with your assets in Spain. Unless you are asked about this when you make an English will there is a great danger that a standard clause may be pulled off the computer, revoking not only your pre-existing English wills but also your earlier Spanish will. The consequences of this can be expensive!

Equally, if you are not asked about Spanish property, an entirely inappropriate English will can be drafted, again causing you or your beneficiaries considerable loss.

If you choose not to make a will at all, relying on the intestacy provisions, even worse consequences can follow.

Inappropriate English wills

If an existing Spanish will is not to be revoked it is vital that the English will does not attempt to deal with the property located in Spain and so effect a double -and possibly inconsistent -disposal of the same assets.

Inheritance in Spain does not normally require the intervention of an executor. Legal title passes directly to the beneficiaries. An English will may provide for the appointment of executors & trustees towhom the estate is given "on trust to ". Spanish law has no concept of a trust (except than in very limited circumstances) and so such a provision may be treated as a gift to the Trustees. Such a gift is likely to result in far higher taxes being paid than if the house were to be given directly to the likely beneficiaries under the trust - the wife and children. This is particularly so if the Trustee is a bank or solicitor as gifts to non-family are taxed at a much higher rate. In the case of a gift of a typical £50,000 house, the difference is that, if given to a wife and 3 children, the gift would be tax free whereas a gift to a solicitor trustee would result in tax being paid on the entire gift -and at double the rate that would have been charged to a
family member. Worse still, the trustee would presumably then wish to transfer title by way of gift to the wife and children. This transaction, too, would be taxable -and also incur legal costs. The gift being a gift by the trustee owner to somebody not a member of his own family would again attract the higher rate of tax. The combined total of these taxes and charges could consume a large part of the value of the house!

Although the English will should be recognised in Spain it is not a cheap process. One cost is the expense of an official translation of several documents including the grant of probate. A huge word- processed will can cost £500 or more to translate. The result can be an overall bill totally out of proportion to the value of the house in Spain. lf there is to be an English will for use in Spain it should, therefore, be short, simple and take into account Spanish law. Better still in most cases is to make a separate Spanish will and register it in Spain.

Why should I make a separate Spanish will?

Apart from eliminating the risks mentioned above, the existence of a Spanish will usually makes it much quicker to deal with your affairs in Spain. If you rely on an English will no action can be taken until
the probate of your English estate has been dealt with. This can take some time -particularly if your English will or affairs are complicated.

The Spanish authorities impose tax penalties if matters are not dealt with quickly. You have only 6 months (in certain cases extendable to 12 months) to pay the taxes due on the Spanish estate, failing which a surcharge of a high penalty will be applied and interest will start clocking up. It is rare for the English probate to be dealt with in time to allow this deadline to be met.

How do I make a separate Spanish will?

Spanish wills -i.e. a will in Spanish drafted in accordance with the Spanish formalities -usually need to be signed in front of a Notary Public and then registered in the Spanish wills registry in Madrid.

lf you are planning to visit Spain -perhaps on holiday -we can arrange for a Notary in Spain to prepare a will for signature and register it with the authorities. We would monitor that your will is in order and you will sign a will both in Spanish and English.

What should I put in my Spanish will?

That is up to you. You can say what you want. Remember, however, that in Spain certain people -mainly your husband/wife and children -will have certain semi-automatic rights in respect of your
estate. These should, if possible, be respected. It is cheaper this way.

If you want to make any complex arrangements or to leave assets to people who are not members of your family, it is genera1ly better to do so in your English will and to make your Spanish will as simple as possible.

We will be happy to advise on the best structure in more detail once we know more about your circumstances.

What does it all cost?

The total cost of a will is 200 Euros plus 16% VAT. This includes our fees and the costs of the Notary in front of whom you will sign the will.

What if I do not make a will of any kind? -The risks of Intestacy

Under Spanish law your share of property you own jointly with somebody else does not pass automaticaly to that other person on your death. It will be disposed of either in accordance with your will
or, if there is no will, under the laws relating to intestacy.

These can produce quite unexpected results.

What do I do next?

If you would like further advice, please contact us.