Law in Spain

For those of you who don’t like thinking about the ‘inevitable’ and just the mention of Wills sends you into a state of panic, please try just this once to read on, as you could make your loved one’s lives a whole lot easier when something does eventually happen to you…

Firstly, I should point out that it is not a legal requirement to have a Spanish Will.  

But, if you own property in Spain, whether you live here permanently or not, not having a Will is almost an absurdity, and these are the main reasons why:

• If you have a Will the whole Inheritance process can be resolved in just a few months. Without one, you’re nearest and dearest will suffer long delays, making a really upsetting process even more difficult for them and that’s something none of us want.
• Without a Will, you will incur additional costs as the Spanish Authorities will insist on obtaining documents from the UK which will need to be officially translated by a sworn translator and legalised by carrying the stamp of Le Hague (apostilled).  For example, one of the documents that they will require is a ‘Declaration of Heirs’ (‘declaración de herederos’), which is a public document identifying which of the deceased’s relations have the right to inherit their assets. This declaration is usually made before a notary. To obtain it the notary will need to see the deceased’s passport, death certificate, registration of a certificate of the last Will and testament amongst other documents. If these documents are in English, they will need to be translated and certified as described above.  Obtaining one of these documents alone can be more expensive than making the Will itself, so it just doesn’t make sense not to have one. And that’s in a straightforward case. If there are complications and the courts have to be involved, then the costs can spiral significantly higher.

• Passing away without a Spanish Will (intestate) could mean that the Spanish Laws of Inheritance, governing how and to whom you can leave your property, will apply.  So if you think that your other half will automatically get everything anyway, be aware, as this may not necessarily be the case in Spain. Equally, contrary to many people’s beliefs, it doesn’t mean that the assets would all just pass to the state either. As the deceased won’t have established to whom he would like their assets to go to, the law itself will dictate the order of distribution, which depends on the family relationships in existence; Firstly if the deceased had children, the assets will divide between them in equal parts. If they were married, the surviving spouse will only inherit a lifetime interest (usufructo) in a third of the estate (with special rules governing incomes). If there were no children, the assets will pass to the deceased’s parents if they are still alive, and then to grandparents if not if they are still alive. Only if there are no direct ascendants or descendants will the assets pass solely to the surviving spouse. Thereafter, the order moves on to brothers and sisters, aunts and uncles etc. And only in exceptional cases, where there are no live relations, would the assets pass to the State.
• It is particularly important to make a will if you are not married or are not in a registered civil partnership (a legal arrangement that gives same-sex partners the same status as a married couple). This is because the law does not automatically recognise cohabitants (partners who live together) as having the same rights as husbands, wives and civil partners. As a result, even if you have lived together for many years, your cohabitant may be left with nothing if you have not made a will.
• Even if you already have a Spanish Will, but you made it before 2013, you should seek advice from your lawyer in relation to any changes that may need to be made as a result of the European Regulation 650/2012 which came into effect in August 2015, whereby when a person dies resident in one country of the European Union but as a national of another, the law applicable to their inheritance will be the one that they have established expressly in his/her will and not the one established by the International Norms of each country (which may be in conflict). Therefore an English national living in Spain can establish that they wish for English

  Law to rule their inheritance and this will avoid any possible risk of claims from children against the spouse on the basis of the system of obligatory heirs established by Spanish law (detailed above) which has always caused worry and concern especially in cases where there are children from previous marriages etc.

So don’t delay! Contact your lawyer today and see for yourself how easy it is to make a Will and avoid all of the confusion, wasted time and money that would occur otherwise.