As a property owner in Spain sooner or later you should ask yourself the question: Is necessary for me to make a Will in Spain? The answer to this question is: it is not absolutely necessary but it is very wise. Why?
When a person dies, and did not describe his wishes for the distribution of his assets in an official Will, his property will be divided among the heirs according to the law. When you have assets in Spain, according to Spanish International Laws, your inheritance will follow your “personal law” the law of your nationality will be applied (German law for Germans, Chinese law for Chinese, British law for British nationals). So, in case a British national with assets in Spain dies without having drawn a Will, we have to look at the British Law, and there is our first problem: British Law throws the ball back and states that it is the Law in the country where the asset is situated, i.e. Spain, which determines the legal heirs. Although Spanish Notaries, generally practice the application of British Laws of Inheritance in such matters, the best way to avoid problems is to make a Will.
Another very important, practical reason to make a Will in Spain is to avoid nerve racking, time consuming and expensive procedures that your heirs will have to endure when there is no Will, or only a document drafted in the U.K. You must think of the official translation of all the documents involved, the legislation of these document and sometimes the Notary will even ask you to proof and show which Laws are incumbent on you.
Let´s have a look at some F.A.Q.’s:
What should I write down in my Will?
Because the Law in England and Wales and Northern Ireland for making a Will is based on the principle of free disposition of property you can leave your assets to whoever you like. In Scottish and Irish Law the surviving spouse and children have legal rights to part of the inheritance. So in the first place you should decide who you want to leave what to, taking into account the legal rights of future heirs. You can leave goods or money to people, but you can also give donations to charity or N.G.O’s.
You should think about who you will want to inherit should one of the appointed heirs die before you.
When you have children that are under age, it is wise to point out who do you want to have your child’s custody in case you should die.
It is also a good idea to name an executor, i.e. the person that you to carry out all your wishes and deal with the administration of the inheritance. This can be a relative, but can NOT be one of the heirs. You can also name a professional (f.i. a lawyer in Spain) to be the execuator of your Will.
If you have a separate Will in the U.K. for your assets over there, it is good to mention this in your Spanish Will. Please note that both Wills should be in accordance with each other and don’t have any contradictions.
Can you make a joint will in Spain?
According to Spanish law, Spanish citizens can NOT make joint wills. Each spouse has to draft his or her own last will. Although, as explained before, on foreign citizens, it is their personal law that regulates the inheritance, and the fact the International Conventions allow foreigners in Spain to make joint wills, most Spanish Notaries will not allow you to do so. The reason for this is, that they claim they can’t control what you want is legal in your own country or not. To avoid conflict and trouble, we advise foreigners in Spain for everyone to draft their own will. The contents of your will should match the legal possibilities that your own (English, Irish, Scottish… ) law permits.
If I don’t make a will in Spain, is it possible that my property goes to the Spanish State?
If you don’t make a will in Spain, and there is no will in the U.K. or any other country either, you die intestate. Your inheritance then follows the rules for intestacy of the country of your nationality. Generally, there is an order of people that can inherit from you, p.e. spouse, children, parents, sisters and brothers, nephews and nieces etc. etc. The ranking and the depth of the system is different in all countries. When there are no relatives left in this ranking, OR when no relatives show up or can be found, yes, then the property falls to the State, and in this case to the Spanish State. This will not happen overnight, there a very extensive procedures to be followed before the State can claim your property.
Procedure if you want make a Will.
Think about what assets you want to leave to whom.Find a lawyer to help you draft the Will according to the legal standards. For foreigners usually a bilingual document will be drafted.The lawyer will discuss the contents with the Notary, if necessary, and will make you an appointment to sign. The Will is signed by the person which wishes it reflect, the Notary and the translator.The Notary keeps the original in his archives, and gives notice of its existence to the Central Registry of Wills in Spain in Madrid. You can take a copy (recommended).Let your partner and/or heirs KNOW that you have drafted a Will, and keep the copy in a place where you know they will find it. Although the copy has no legal validity and you will always have to go to the Notary to get the original.You can change your Will any time and as many times as you wish. Apart from a revision due changing circumstances, it is wise to reread and reconsider your Will from time to time.