We have recently dealt with the Spanish estate of one of our client’s late spouse that we believe is quite a self-explanatory case. This article shows how important it is to have a Spanish Will in place and for the Will to be drafted following some aspects of Spanish law, even when the document is signed in the UK.
First of all, let us look at some of the FAQs about Spanish Wills for property owners in Spain.
Q: Should I have a Spanish Will to cover my Spanish property?
A: It is not mandatory, but it is very advisable.
Q: Will my inheritors pay less taxes in Spain if I have a Spanish Will in place?
A: No, the taxes linked to the inheritance are the same, but you will be saving costs and time to your inheritors when inheriting your Spanish estate.
Q: Can I sign a Spanish Will in the UK?
A: Yes, a Spanish Will can certainly be drafted and signed in the UK.
Q: Can I simply cover my Spanish assets with an English Will that covers all my worldwide assets?
A: Yes, but we would advise to have a Spanish Will for your Spanish assets only.
Q: Does a Spanish Will need to be drafted in Spanish by a Spanish lawyer?
A: No, the Will can be valid either way, but you will save costs and time to your inheritors if the Spanish Will is drafted in two columns, English and Spanish, and this is done by a qualified Spanish lawyer. Also, if the Will is drafted in Spanish, it can be registered at the Central’s Will Registry in Spain which makes the Spanish Probate process smoother.
We will now explain why the Spanish Will of our client’s wife, which was neither drafted by a Spanish lawyer nor followed Spanish rules, caused the client to incur in higher costs and having to wait much more time to get the Spanish property registered in his name. First of all, please note that the Will signed by the deceased was a Will executed in England with the aim of just covering the Spanish assets. This was a terrible idea as the Will was neither a proper English Will nor a Spanish Will.
For you information, if you only have an English Will covering all your worldwide assets, at the time of you passing away, your inheritors will have to contact a Spanish lawyer in order to take the necessary steps to transfer your Spanish assets to your chosen beneficiaries.
Unless that Spanish lawyer is a dual-qualified Spanish and English solicitor, it is highly likely that they will not be versed in English law and may not understand the provisions made on your English Will.
Most English Wills appoint executors to administer the estate, and some contain clauses in order for the assets to be transferred to a Discretionary Trust. None of these legal concepts exist in Spanish law, although there is a legal role called ‘albacea’ which is a little bit similar to the English executor, and therefore, it will be very difficult for a Spanish lawyer not versed in English law and for a Spanish Notary Public to know who the Spanish assets should be transferred to according to an English Will.
Even if a notary public grants an inheritance deed based on an English Will, it is highly likely that the Land Registrar will not complete the registration of the property in the beneficiaries’ names because they will ask for a ‘Declaración de Herederos’ which is the document that states in Spain who the beneficiaries are when there is no Spanish Will in place. There is no equivalent of the said ‘Declaración de Herederos’ in English law, and here is where local Spanish lawyers may become confused and not able to progress further. The best way to unlock this situation is for a dual qualified Spanish lawyer & English solicitor to produce a Certificate of English law explaining to the Spanish notary who the beneficiaries should be and, therefore, to whom the property should be transferred, according to the English Will and English law.
Why that client of us faced delays and additional expenses in order to have his late wife’s share over their Spanish property transferred to him when the deceased had a technically valid Spanish Will?
Well, yes, it is true that there was a Spanish Will in place. However: —
- Since the Will was not written in Spanish, an official translation was needed — the translator fees added circa £600;
- Since the Will was not registered in Spain, the Certificate of Last Wills, which is a document that necessarily has to be provided to the Spanish notary, stated that there was no Will in place — this created some confusion to the Spanish notary;
- Since the Spanish Will was drafted without following Spanish law requirements but English law’s, we had to produce a Certificate of Law, exactly in the same circumstances as when we deal with Spanish estates where there is no Spanish Will at all — this added notary costs, apostille costs, i e approximately additional £300, and time; and
- Since the Spanish Will was drafted as an English Will, the testatrix appointed several executors which did not have any real impact on the Spanish probate, but just because they were appointed as such, we had to obtain a Spanish Tax Number for each of them, which again, added a substantial amount of costs, i e £600, and delayed the process a couple of months.
As you can see, even with a Spanish Will in place, the fact that it was not drafted as a proper Spanish Will, the surviving spouse had an additional cost of around £1,500; and rather than having the property transferred to him in or around 4 months, he had to wait approximately 7–8 months to have the property registered in his name. Time was quite important for that client as he wanted to sell the property and the additional waiting made him lose some opportunities. Furthermore, it should be noted that in Spain Inheritance Taxes and the costs of the Probate are not paid by the estate but by the beneficiaries up front, i e before inheriting the assets.
To summarise, we would recommend to all property owners in Spain, or for British citizens living in Spain, to have a Spanish Will in place, drafted by a Spanish lawyer. And remember, you can also sign a Spanish Will in the UK if needed.