The simple answer to this question is that if you are a foreigner living in Spain and you have Spanish assets, ranging from a property to a bank account or car, then you do need a Spanish will.
WHY?
Because having a Spanish will prepared makes dealing with the deceased person’s estate simpler, quicker and cheaper for your beneficiaries when the inevitable occurs.
If you do not have a Spanish will and you have assets in Spain, then you run the risk of your beneficiaries incurring avoidable Spanish inheritance tax fines, considerable delays in winding up or transferring your estate and even more heartache then they deserve!
SO WHAT SHOULD I DO?
Consider who you wish to leave your Spanish assets to and talk to a lawyer.
WHAT DO I PUT IN THE WILL?
This will obviously depend on who you wish to leave your assets to. Set out below are some points to bear in mind when considering the contents of your Spanish will.
Spanish law recognises legal property or ownership known as “nuda propiedad” in Spanish and the right to use or live in the property for the life of a certain person or “usufructo” as it is known in Spanish.
Therefore if on death you left the legal title in a property to somebody you did not live with, you could protect the person that you do perhaps share the property with by granting them a life interest. The life interest will only lapse when the person you have left your share in the property to dies. Until then the beneficiaries and legal owners of your property could not sell or evict that person from the property.
Unlike English law where trusts are created up to the nil rate band to reduce inheritance taxes, Spanish law does not recognise trusts. Therefore you cannot leave any of your Spanish property on trust for your beneficiaries. Ask a Spanish lawyer what a trust is and they will be amazed that an English person would even consider giving their property to a trust to be managed by trustees!
WHERE WILL YOU PAY INHERITANCE TAXES?
This will depend on where you are domiciled for tax purposes. Domicile is another strange and complicated English legal concept, similar to trusts, that we English lawyers have invented over time to confuse our clients.
Essentially you will be obliged to pay inheritance taxes in the country where your main residence is and where you permanently and indefinitely reside. If you have moved to Spain and have very few assets in the UK, you are likely to have acquired Spanish domicile. However your old domicile is presumed until your new one is acquired. Inheritance tax on Spanish property is always in the first instance paid in Spain but can on occasions be offset against UK inheritance tax.
Once you have considered who to leave your Spanish assets to the Spanish will can be prepared.
The lawyer will instruct the local Notary to prepare the Spanish will and if you are a foreigner living in Spain the will can be prepared in both Spanish and your native language. However on the day of signing your Spanish will, a translator or somebody who speaks your native language is obliged to attend the signing with you and translate the Spanish part of the will.
Unlike an English will, which is signed before two independent witnesses, a Spanish will is always signed before your local Spanish Notary.
If you have assets in various jurisdictions it is advisable to consider having a main will, say for your assets in England, the Isle of Man, Jersey or other jurisdictions, and a Spanish will that solely deals with your Spanish assets.
Do you already have English & Spanish wills? Then read the first few clauses of your English will and check the dates on your Spanish will. Why? Mainly because an English will starts with “I revoke all former wills”. If your English will has this clause and your Spanish will was prepared prior to your English will then in accordance with English law your Spanish will is no longer valid and it is advisable to have a new Spanish will prepared.
HOW MUCH DOES A WILL COST?
Not as much as it would cost if you did not have not one! Our legal fees are currently €300 for a couple and €175 for a single person plus IVA (VAT). In addition, there are Notary fees to be paid which vary depending on the complexity of the Spanish will.
Therefore if you are considering purchasing a property in Spain or have already purchased or you have any Spanish assets do not hesitate in calling us to discuss your will requirements.
Jon Sutton is a Solicitor at De Cotta McKenna y Santafé, whose Firm specialises in Wills & Probate. He will be available to meet clients at the inland office of De Cotta McKenna y Santafé at Sierra Gorda, Coín or at the offices in Mijas Costa and Nerja. To book an appointment call 00 34 95 293 1781 or email jonsutton@decottalaw.net. For more information you can find us on the internet. Our website address is www.decottalaw.com.
