All of us here at Link Point Legal and Business Services would like wish you all a very happy Christmas and a healthy and prosperous 2011, and I  make no apology this week in repeating my advice to all expats in Spain to have a professionally prepared Will for their assets in Spain.   I have written before about the expense, heartache, and delays 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, or make it their New Year’s Resolution for 2011.

Many foreign residents here in Spain have Wills which they made many years ago in their home countries but have never made a Spanish Will.   It is possible to get Probate in Spain of an foreign Will but the process is long, complex, and expensive.   First you must get Probate in your home country, then the grant of Probate and Will must be “legalized” by the Foreign Ministry of your home country, then all the documents must be translated into Spanish by a Court Appointed translator in Spain. 

If there is only a Foreign Will or no Will at all, a “Certificado de Ley” - Certificate of Foreign Succession Law- may also be necessary before Probate can be granted in Spain.

In addition, an application for Probate of a foreign Will must be made in Madrid to the central authorities rather than the provincial authorities.  This means engaging a gestoria in Madrid to present all the paperwork. 

All this additional work and the cost of translations, gestorias, can add many hundreds of Euros to the cost of obtaining Probate which far exceeds the cost of making a Spanish Will.  

In many countries the executors or family of the deceased have 1 year from the date of death in which to pay the Inheritance Taxes and obtain Probate, but in Spain if Probate is not obtained within six months of the date of death then the Spanish tax office starts to apply penalties to the Inheritance Tax which is due on the assets here in Spain.  These penalties for delay are,

1. Payment between 6 months and 9 months from the date of death - 5% of the tax due. 
2. Payment between 9 months and 12 months from the date of death - 10% of the tax due.
3. Payment between 12 months and 18 months from the date of death -15% of the tax due.
4. Payment after 18 months from the date of death - 20% of the tax due plus daily interest at the official rate prevailing from time to time

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.   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.

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 Spanish Law does not grant 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, and once again, a very happy Christmas from us all.