Spanish Will

[TheCooler]

Hi , my wife and I need to write a will. Any recommendations around the Caleta / Rosario area.
Many thanks.

[Windermeregolfer]

Hi Cooler, here in the UK I have just done new wills for my wife and I myself using the guide lines on the which.co.uk website and the government website, ok I accept that sounds easy as at the moment all our assets are in the UK, I suppose it depends if all your estate is in Spain or whether it is split between UK & Spain - any way worth a try.

http://www.whichwills.com/#?intcmp=GNH.Services.Which-Wills

https://www.gov.uk/make-will

[TheCooler]

My estate is split and so I will need wills in both the uk & Spain .
I know Spanish inheritance differs from the uk, but uk inheritance rules can be written into Spanish wills. In light of this minefield , I think I need a little bit of professional advice.

[Can the Man]

Hi

My wife and I both have Spanish wills and Irish wills, in our Irish wills we have made reference to the fact there is property in Spain and that there is a Spanish will in place to cover this. Our Spanish wills only makes refernece to our Spanish property.

You need to be careful about this, especially if the property is jointly owned (like my case), and then the number of dependents.

There is a template available from the Spanish authorities (my solicitor in Correllejo looked after this for me), and my solicitor recommended not to deviate from their guidelines and then it can be notarised by the notary. It must be notarised, and you have to pay for this as well. From what I can remember both myself and my wife leave our share directly to our children, and not to each other, this cause the least amount of hassel when it comes round to probating.

I strongly recomend doing it through a reputable solicitor.

[Spike On Q]

Napoleon Gonzalez always gets the thumbs up - he's very reliable and prompt. He also speaks English at speed, nice guy!

fuertelawyer@gmail.com

[TheCooler]

Many thanks . I will get in touch with him when I'm out.

[Ernie]

Sorry to hijack this thread but I've a couple of questions ...

I recently bought a holiday home on the Island solely in my name and without a mortgage. I am Non-Resident in Spain instead retaining Residency in the UK where most of my assets are situated. I have a UK Will which needs changing to include the Spanish property but I do not have a Spanish Will at all.

My intentions are pretty simple with all my worldly goods going to one person on my death or to be split equally between three named UK based charities should that person pre-decease me.

I have been under the impression (can't remember where from) that my UK Will adjusted to include the Spanish property will be sufficient for my needs and that a Spanish Will would be redundant as it would just replicate the UK one. Does this sound like garbage to you guys for a Non-Resident such as myself ? And if so why is it necessary for me to make a Spanish Will ?

Many thanks,

Ernie 

[Ivemovedon]

A certain Merlin on here who was helpful to a lot of people on here regarding spanish law said that a Spanish will could cause you a lot of problems. It was a few years back and i can't remember his reasoning for this now but it was enough to make me think twice about getting one at the time. Still haven't yet after almost 10 years.

[beachlife]

This question always keeps returning. There seems no definite answer but lots of different views on whether its a good idea or not. The best thing is to do a lot of research and make a judgement call on what you research and your own situation and opinion what you feel is best in your own opinion.

Here are some places to start your research

http://www.pdsa.org.uk/files/Can_I_get_help_if_I_own_a_property_in_spain.pdf

http://www.ft.com/cms/s/0/17cd2056-d596-11e1-af40-00144feabdc0.html#axzz2vxrMcVVo

http://www.tumbit.com/blogs/482-do-i-need-a-spanish-will.html

http://legal4spain.com/wills/faq/

I have property in UK and on Fuerteventura. I will remain a non resident and  I have a Spanish Will and also have a UK will. I came to the decision after seeking professional advice both in UK and Spain plus doing my own research.

I decided having spent 10 years on and off the island and knowing the love of paper work the Spanish system seems to require for everything, the best thing I could do for those who have to sort out things for me after I depart this mortal toil, is to try to make it easier for them.

Of course,  my decision may be wrong, but on balance I believe that having a will could make things a little less difficult where as not having a Spanish will is more likely to make things difficult. Buying a property here was a judgement call, some people will say you are mad others will say you have done the right thing. Only you can make the call what is right for you, so ignore my advice and anyone else and do lots of research.

[Ivemovedon]

I think on reflection that the problems a Spanish will would create are regard to the fact that Spanish inheritence laws favour the  first born male children rather than the spouse. Not too sure about all this but i think personally as a family the fact that we had two children on my side and one on my wifes it could possibly cause complications. Might not be the same for a family in the standard format, and this is only what i can remember from long ago posts.

[beachlife]

I think on reflection that the problems a Spanish will would create are regard to the fact that Spanish inheritence laws favour the  first born male children rather than the spouse. Not too sure about all this but i think personally as a family the fact that we had two children on my side and one on my wifes it could possibly cause complications. Might not be the same for a family in the standard format, and this is only what i can remember from long ago posts.

The rules for Spanish inheritance law is why a Spanish will may be a good idea for you. As if you have a Spanish will the will is what decides where things are given too. Spanish inheritance laws would only become how the estate is shared out if there is no will.

If there is no will it will take a long time for the estate to be sorted out and the assets will be frozen until such time that everything is decided upon. That`s the advice I was given that helped me decide for me that a will was a good idea for my circumstances. I have done probate in the UK myself with family members who have had a will and those without a will, and know from personal experience that a UK will made doing probate so much easier and quicker. I would not attempt to try to do the probate process in Spain myself but would image that the will will simplify the process, but then again that`s a judgement call nobody seems to give a definitive answer.

Be good if an expat who has been through the process in Spain with and without a Spanish will would share their experience.

[Ivemovedon]

I was always led to believe the insistence of a Spanish will was regarded as a nice little 'earner' for the islands resident solicitors along with the imposition of the non residents tax. I'm not saying its correct but i am very wary of anything of this nature which ultimately puts cash into the coffers of the islands legal elite. Advice i would give is pay nothing until 100% sure its an absolute neccessity, because you will never ever get the money back. Thats probably the only thing you can be 100% sure of.

[beachlife]

That`s my point we must weigh all the information we receive carefully. I took advice from both Spanish and UK legal experts. I would not advise anyone to base actions they take solely on what people say on any forum. We weigh the information we get giving greater substance to some than others. I personally would put great weight to someone who has been through the process who is a non resident and had a family member who has died and had either a Spanish will or did not and if there were problems.

The non resident tax is off topic for the OP. I`m happy that you  believe you have made the right decision for you. So as we have made different arrangements perhaps the executors of our wills can report back to the forum on which of us made the right decision.

The only thing we can be certain about I thought was that we are all going to die .

[Ivemovedon]

Never too sure when it comes to the legalities of Fuerteventura as to wether you have made the right call or not .

As for dying yes that sadly is a certainty.

[lionfish]

The only certainty here is that just about everyone has a different "expert" opinion.
My view is that if you have assets in Spain then on your death the assets pass to your child/children (eldest child I think) unless you have a will to indicate otherwise. This could result in a surviving spouse getting nothing, or losing half of any joint property in Spain and then relying on "good will" from the children.
Sometime ago someone advise people not to make wills, but then not to report the death of the first partner to die - the suggestion was that this is how some Spanish do it. The idea being to have power of attorney for each other so that the survivor could sell, even if the other died. Not a good ideal in the current climate where personal (financial) information is soon to be shared across different countries.
What we did, and only time will tell if this is correct, was to make Spanish wills pointing to our English wills - so on the death of the first person the English will directs the settlement.

[Spike On Q]

The "old" Merlin solution was a work round using Power of Attorney passing to the person you wanted to deal with your property on death.

This may work BUT Spanish wills are legal documents recorded and held centrally in Madrid and are applied strictly upon death. If no will is recorded in Madrid this results in confusion, delay and could mean property is held by the state. For the small cost involved why not a UK will for UK property and a Spanish will for Fuerte property?

That way there will be no problems and your heirs will not be left with the headache of complicated legal issues

PS You don't need a will until you die - then it's too late!

[Spike On Q]

PS  -  It's no good writing out a will on a cigarette packet and leaving it behind the clock. In Spain and it's territories the will MUST be registered in Madrid for it to be valid

[whispa]

This is my own experience, my partner who owned half of my property, died 8 years ago, he refused to make a Spanish will, resulting in my paying out £20 thousand pounds in the UK to solicitors who didn't do their work properly to save my house being taken from me, (I had paid for my house). I now have to sell the house to be able to go forward and enable the inheritance taxes etc to be paid, it's been heart breaking and am left with no savings, so please get expert advice and do the right thing by your family, I wouldn't want anyone to go through what I have. My solicitor here - Beatriz has been brilliant and helped me no end and her charges are a fraction of the UK ones thankfully.

I hope this helps you decide what to do for the best.

Freda

[Ivemovedon]

Real sorry to hear of your problems Freda. did you have an English will though?. And if so did it have no effect on who inherited what?.

[beachlife]

Sorry for your loss Freda.  Thank you for sharing your experience out of your loss, hopefully others will be saved from making the same mistake.

[nacnud]

 Raymundo Larraín Nesbitt Lawyer – Abogado
August 2012

Isn't a Will Drawn up in the U.K. or in the R.O.I. Valid?

A UK or Irish will are perfectly valid to bequeath assets located in Spain. Having said this, many practical problems stem from this that could easily be overcome by means of having made a Spanish will.

So why is it then 'essential' to make a Spanish Will?

Fairly often people just don't realise they are adding unnecessary stress and expenses to their loved ones at a time of bereavement by not having drawn up a Spanish will. For all those owning property in Spain it is highly advisable you make a Spanish will which will be complementary to the will you've already made in your own home country.

However I would just like to clarify that making a Spanish will doesn't avoid you being liable for Spanish IHT in any way whatsoever.

Drawing up a Spanish will, to dispose exclusively of your Spanish estate, has a number of advantages for your beneficiaries, all having to do with saving them time, money and hassle.

Making a Spanish Will: The Advantages

1. A Spanish will is exclusive to your assets located in Spain. It doesn't preclude any will you may draw up in your home country whether before or after. This means that the Spanish will won't overrule your national will and affects only your Spanish estate – providing your national will holds no provisions on Spanish assets.

2. Drawing up a Spanish will may help your heirs mitigate their tax bill. There's a deadline of 6 months as from the time of the testator's demise to file and pay Spanish Inheritance Tax. You can request a deferral within the first five months of the death but heirs may still have to pay the penalty and/or delay interests depending on how late they actually pay. You can also request to fraction the IHT paying in instalments up to five years. After the six months deadline has elapsed your beneficiaries will incur in penalties for late payment typically ranging from 5%, 10% and 15% if paid in the next 3, 6 and 12 months as from the said deadline. If payment is made after 12 months from the deadline a surcharge of 20% is applied besides the accrued delay interests. Bear in mind that deposit monies held at a bank will be frozen upon death – access to them will be restricted until the IHT is settled with the tax authority.

Spanish wills have the advantage that they can be executed almost immediately whereas a UK or Irish one will no doubt exceed the six-month deadline attracting penalties from the Spanish Tax Office for late payment. The reason is that a Grant of Probate must be followed in your home country which takes a long time in my experience and besides is fairly expensive. It is usual that foreign wills take in excess of a year or more to be executed in Spain. This translates into higher expenses borne by your beneficiaries due to the surcharge for late payment incurred on surpassing afore mentioned six-month deadline.

So in a way, making a Spanish will helps to mitigate your heir's tax bill as it will ensure they will be able to file IHT within the stipulated legal timeframe of six months without attracting penalties and surcharges which could have been so easily avoided.

3. Drawing up a Spanish will saves both money and hassle. On making only a national will your beneficiaries will have to translate all documents (death certificate, will) into Spanish by a sworn translator, notarise them and affix to each of them the Apostille seal of the Hague Convention of 5th October 1961. They will also have to obtain a Grant of Probate which must also be translated into Spanish and apostilled. Additionally a Certificado de Ley (certificate of legal compliance) may be necessary explaining the inheritance procedure in a foreign country.

The above greatly – and unnecessarily I may add – increases the expenses for your beneficiaries besides delaying significantly the whole transfer of estate procedure; thus attracting the penalties highlighted in my point two above. A Spanish will eliminates the need to follow all the above steps.

4. Spanish wills are stored safely at no extra charge. On you making a Spanish will you will be given only a "copia simple" (simple copy) or "copia autorizada". The original is stored by the Notary in his files for record. The Notary will send off to Madrid the details of this will to a registry known as "Registro General de Actos de Última Voluntad" (Central Registry of Last Wills) for safekeeping. Your beneficiaries can always request an authorised copy ("copia autorizada") of the testator's last will from the Notary who witnessed it. You can always know before which Notary it was made (if you happen not to know it) by means of requesting a "Certificado de Últimas Voluntades" from the aforementioned Central Registry of Last Wills. It's just an A4 sized sheet of paper from the Ministry of Justice with the seal of the said registry which specifies which Spanish Notary witnessed the last will and the date on which it was made. The latest will always overrule any prior will unless specified otherwise.

Should you lose your copy, the notary office burn down or you simply don't know before which Spanish Notary the will was made don't panic, it doesn't matter really. All Spanish will's details are stored safely in the said registry free of charge. One can always request a copy and they will let you know before which Notary it was witnessed if you believe you are a beneficiary. You will have to provide an original death certificate (translated into Spanish with the Apostille seal affixed if the death occurred abroad) and the original "Certificado de Últimas Voluntades" (Certificate of Last Will). The Spanish death certificate is obtained from the civil registry in the municipality in which the death took place.

Be wary of opportunistic companies – read con – that charge you an annual fee to store 'safely' your Spanish will with state-of-the-art technology. As read above, this is unnecessary and they are just taking advantage of you.

5. Spanish wills drawn up before a Notary public (Open wills) add security. Making a will is a personal act. It cannot be granted by means of a proxy. Normally these wills are set out in double column (Spanish and your native language) so you fully understand what you are signing. They are drafted by your appointed lawyer. If your command of Spanish is low it will be compulsory you draw up the will assisted by a translator (which can be an acquaintance with a good grasp of Spanish or typically your own lawyer) who will also sign it. The Notary will read out aloud the will in Spanish to make sure you fully understand and agree with its content. All this adds to the security on you granting a will in Spain.

6. The content of a Spanish will is governed by your own national laws. This means that you are not constrained by Spain's forced heirship rules. Additionally, If you are British or Irish you have free testamentary disposition in Spain meaning you can make a will exactly the same as you would in the U.K. or in the R.O.I. albeit with all the additional advantages I've highlighted above for your loved ones.

This is the clearest explaination I have seen on this topic and before anyone jumps down my neck it is an opinion albeit from a very expeirenced Spanish Lawyer who is a property/IHT specialist.

[Ivemovedon]

say no more.

Spanish will it is then.

[TamaraEnLaPlaya]

Anyone got a ballpark figure for the costs involved in having a Spanish will drawn up and notarised?

[Spike On Q]

Ask Napoleon

[Ivemovedon]

when we last enquired of our Corralejo solicitor a couple of years ago we were told we required one each and it was around 300 -350 euros per person.

Probably why we gave it a miss.

[Spike On Q]

600.00 Euro's?  Cheap then compared with Freda's thousands - I think Napoleon was alot less than 600.00 - but you should check with him his current rates

[Spike On Q]

Why is it that expat are always looking for a way round basic stuff like this - then when they get into trouble they blame the local system and those damn foreigners  - which they ignored anyway

Play by the rules, be legal - take it on board that you just might have to try a bit harder to get it right but then you can sleep soundly in your beds

[Ivemovedon]

Not sure anyones looking for a way round it , more like just looking for the least costly option. It seems to me enquiring wether an English will would suffice without the added cost of a Spanish one is a pretty valid question. If its not fair enough but 600 euros still seems way too much.

[whispa]

I paid 400.00 euros for my Spanish will 12 years ago and at the time I thought it was well worth it, if only the other half had done it at the same time, I would be £20 thousand better off now....IF ONLY!!! With an English will only, you'll need a notary in England and a solicitor, which is why it cost so much, if there hadn't been an English will, I was told the British government would take his share, I could understand the Spanish government but couldn't understand it being British, oh well at least I'm past that now, just need to go around with a begging bowl to pay the inheritance tax due. Although having said that, if I wait for five years, apparently the inheritance tax is wiped out, not sure how that works either!!

[lionfish]

Bearing in mind you get what you pay for - allegedly!
We had Spanish wills done for far less that that, which I still think/hope will do the job we want. Unfortunately, the people who did our wills are no longer practicing - moved to another island I think.