Spanish Wills

Information and questions about the Law in Spain and Andalucia.
Jool
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Spanish Wills

Postby Jool » Wed Apr 25, 2012 6:03 pm

I am doing my spanish Testamento finally! I don´t want to use a solicitor as it seems to be money for nothing BUT the pro formas I have seen seem to say that the Will only applies to assets in Spain (applying the UK nationality rules) and assets in UK are disposed of under UK Will. But I thought your Will was supposed to cover all of your assets, worldwide. Can anyone advise please? Or better still offer a good pro forma that they know has been accepted by Notaries when Wills go through probate?

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Re: Spanish Wills

Postby probe » Wed Apr 25, 2012 10:35 pm

We were given the same advice. I suspect that you would be able to apply a Spanish will to other EU countries but actually for the sake of doing an additional UK one it will probably make things easier for your next of kin to settle your estate. I can only imagine the delays that would occur in the uk to prove authenticity and ensure adequate translation.

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Re: Spanish Wills

Postby Lavanda » Thu Apr 26, 2012 7:54 am

Get someone to send you a DIY wills form from WHSmiths or somewhere and make a separate UK will. I'm not sure of the legalities, but under Spanish law you cannot disinherit your children but this is not the case in the UK. It might have some bearing on your plans — or not. Depends on how complicated your intentions are, Jool, but I can see problems if a Spanish will, made under Spanish law, extends to your intentions for UK property, under UK law. :think:

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Julie
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Re: Spanish Wills

Postby Julie » Thu Apr 26, 2012 9:44 am

When we went to the notary to do our wills, we stipulated that we wanted to followed uk law, so we left our house to whom we wanted, the notary advided us to do a uk will for uk assets because of the red tape involved.
My spanish friends tells me that if they make a will they can leave to whom they want, so long as they leave something to the children, even if its only 10 euro each, I know in the uk they advice you do the same if you don't want to leave to your family, just to show that you did consider them, if they decide to contest it.
We didn't use a solicitor, we just paid for the notary 30 euro each, seemily you pay for the time you are with them, not for doing the will as such. We paid 330 pound each in uk :thumbdown:
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Re: Spanish Wills

Postby El Cid » Thu Apr 26, 2012 10:02 am

Julie wrote:
My spanish friends tells me that if they make a will they can leave to whom they want, so long as they leave something to the children, even if its only 10 euro each,



That's not my understanding of the law. You are obliged to leave one third of your assets to the children equally, a second third has to be left to the children but you can decide what percentage each get and only the last third is available to you to leave to who you want.

This does not normally apply to foreigners who are allowed to make a will based on the law in their own country but it is in theory possible for a disinherited child to challenge the will under Spanish law.

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Re: Spanish Wills

Postby Devils Advocate » Thu Apr 26, 2012 10:13 am

Shame you didn't speak to my OH first Julie.She'd have done your wills for £150 in total. Can't fathom where the £330 x 2 comes from,quite manic pricing.

I just hope it's not as easy for a disinherited offspring (or anyone for that matter) to challenge a bona fide will in Spain as it is in the UK, .

Over here you can pay your 25 squids and challenge the Queen Mothers will if you so desire :roll:
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Re: Spanish Wills

Postby Spud » Thu Apr 26, 2012 11:35 am

El Cid, you say that the assets must be split into thirds, 1 third equally to the children, 2nd third to the children as a percentage, and the last third to anyone you choose. Does this also apply to step children. I do not get on with my stepsons and would like to leave my property to my only son. Will this be challenged I wonder. Does anyone know.

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Re: Spanish Wills

Postby El Cid » Thu Apr 26, 2012 11:44 am

I don't think step children have any rights to inherit from the step parent. The question of challenging a foreign will to bring it in line with Spanish law is possible but from what I have read is very unusual. I think a disinherired blood child might have a slim chance but I very much doubt that a step child would succeed. If you're really worried then you need to take legal advice.

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Re: Spanish Wills

Postby Lavanda » Thu Apr 26, 2012 1:49 pm

Yes because this could get very complicated if property is owned jointly and, presumably, your step-children are the children of your OH who cannot disinherit her children ...

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Julie
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Re: Spanish Wills

Postby Julie » Thu Apr 26, 2012 1:51 pm

El cid, my friends assures me that is correct, you can if you wish leave what you want to whom you want, I like you thought otherwise.
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Re: Spanish Wills

Postby Lavanda » Thu Apr 26, 2012 3:22 pm

You can leave what you want to the cat's mother BUT all or any of your children can bring a claim under Spanish law.

It's much easier to just go with the law, surely? Nit-picking it is not going to change much, I think.

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Re: Spanish Wills

Postby El Cid » Thu Apr 26, 2012 3:28 pm

Julie wrote:El cid, my friends assures me that is correct, you can if you wish leave what you want to whom you want, I like you thought otherwise.


They may choose to think that but every Spanish legal site that I have seen says otherwise.

Why are you assuming they know the law - many English people don't understand English law.

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Re: Spanish Wills

Postby Spud » Thu Apr 26, 2012 4:12 pm

Thanks for your advice I think I may have to change my will. This was not explained to me when I made my last one.

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Julie
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Re: Spanish Wills

Postby Julie » Thu Apr 26, 2012 5:06 pm

Probably because she says she has had involment in this kind of thing, it makes no difference to me either way, I am not looking to be right, I was just commenting !
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Re: Spanish Wills

Postby Parilla » Fri Apr 27, 2012 6:45 am

Julie, Sid is right, your friends have got it wrong unfortunately.
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Re: Spanish Wills

Postby gus-lopez » Fri Apr 27, 2012 7:03 am

Sid's explanation is exactly what I discovered when looking into this. This was also confirmed by taking advice & I'm sure it's in David Searle's book.
Also what was pointed out was that although the spaniards allow UK or foreign residents to leave there estate to who they want ,under UK law as soon as it gets to the UK they will state that as you are a spanish resident the estate has to be dealt with under spanish law ! :lol:
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Jool
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Re: Spanish Wills

Postby Jool » Fri Apr 27, 2012 10:03 am

Can you please elaborate further Gus? This gets more confusing, either we can choose according to our nationality or we can´t. If the UK treats it as under spanish law what then? Or are you talking about only in the event of a dispute and not normal probate?

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Re: Spanish Wills

Postby gerryh » Fri Apr 27, 2012 10:41 am

What I understand Gus as saying is that if a made a UK will and left all my money to son A and nothing to son B, then son B could try and challenge the will in a Spanish court as I am resident in Spain.
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Re: Spanish Wills

Postby El Cid » Fri Apr 27, 2012 11:24 am

I will try and explain the situation as it is complicated and contradictory.

Spanish law says that a foreigner holding Spanish property will be governed by the law of his own nationality so long as he has a will, either foreign or Spanish. If he dies without any will Spanish intestacy law will apply. So far so good - that's the law.

However British law says that disposal of property is governed by the law of the country where the property is located so that means that Spanish law would apply. Incidentaly where the deceased is resident is irrelevant - it's the location of the asset that matters. Residency only affects the amount of tax that may be due.

So the law suggests that you are bound by Spanish law but what really matters is how the Spanish deal with the situation. The Spanish Registry of Wills has in the past taken a pragmatic approach and accepted that whatever UK law may say, they will apply Spanish law and allow foreigners to make a will with no constraints and there is no reason to think this might change in the future.

However as this procedure is not strictly in accordance with the law, this is where a claim from a legitimate inheritor such as a spouse or child might be considered under Spanish law. This rarely happens but if you feel you might have a problem about the only way round it is to make arrangements before you die such as transferring assets to the beneficiary of your choice. You can reserve the rights to live in the property until your death using the usufruct procedure but of course this could be considered as a gift and gift tax (which is the same as inheritance tax) would become due at the time of the transfer.

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Re: Spanish Wills

Postby gus-lopez » Fri Apr 27, 2012 7:54 pm

Yes Sid's explained it.
We made UK wills so that if either of us die the deceased 50% is split between the surviving spouse & our two daughters.
With the the spanish wills the 50% is 1/3rd to each daughter & 1/3 rd to the surviving spouse. So the surviving spouse would own 2/3rds of the property & our daughters 1/3rd.
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