You cannot imagine the expense and heartache that can be caused by failure to have a Spanish Will. Everyone who does not have a Will and owns a flat or house, or runs a business, or has a bank account should finish reading this article and then immediately make an appointment to get a valid Spanish Will drawn up.
If you die without a Will you are said to die “intestate”, and your Spanish estate will pass according to the rules of your Nationality (Art. of the Spanish Civil Code). These rules may dictate that your estate will pass to members of your family who you do not want to inherit your property, or in quantities that may mean that a family home has to be sold, leaving a surviving spouse or partner without a roof over their head.
As of August 2015, the Succession law is due to change in Spain, meaning that everyone that is resident in Spain will automatically have Spanish Law applied to their estate. In this case, your Will should be drawn up including a specific clause, stating that you wish your estate to be administered as per your nationality, and not your residency. Please check your Wills, should you have them, to make sure that this clause is included.
Under the English Intestacy Rules, if you do not leave a Will and have a spouse (or civil partner) and children, the surviving spouse now keeps all the assets, including the matrimonial home or their share in it, up to £250,000 and in addition the deceased’s personal belongings. Over £250,000, half of the remaining assets go on trust for the surviving spouse (or civil partner) and the children receive the other half. Therefore someone dying leaving a house worth £500,000 and no other assets, for example, would find that their spouse has to sell the house to give the children half of £250,000 immediately. If they make a Will they do not have to do this.
An English person dying intestate with a spouse (or civil partner) and without children but with brothers and sisters, leaves their surviving spouse (or civil partner) all the assets, including the matrimonial home or their share in it, up to £450,000 and in addition all the deceased’s personal belongings, and half the remaining assets immediately go to the brothers and sisters with the balance on trust for them after the death of spouse (or civil partner).
Many English residents here in Spain have Wills which they made many years ago under English Law but have never made a Spanish Will. It is possible to get Probate in Spain of an English Will but the process is long, complex, and expensive. First you must get Probate in England, then the grant of Probate and Will must be “legalized” by the British Foreign and Commonwealth Office, then all the documents must be translated into Spanish by a Court Appointed translator in Spain.
If there is only an English Will or no Will at all, a “Certificado de Ley” – Certificate of English Succession Law- may also be necessary before Probate can be granted in Spain.
If you are living with, but not married to a partner of the opposite or the same sex, it is vital that you have a Will as neither English nor Spanish Law grants them any rights at all.
Now that you have finished reading this article, if you do not already have a Spanish Will, pick up the ‘phone and make that appointment to go and make your Spanish Will