Spanish Wills

TENERIFE SOLICITORS CAN ASSIST WITH PREPARATION OF YOUR ENGLISH WILL.

Have you already made a Spanish Will? Due to recent changes in European legislation since 2016, it is strongly recommended that you review the provisions of your Spanish Will to ensure that it states which national laws you wish to apply to your estate upon death. Failure to do so may result in the Spanish rules of estate distribution overriding your intended beneficiaries and changing how your estate is distributed. For more information, please Contact Us.

N.B. Most English Wills specify at the beginning that the person making the Will hereby cancels all previous Wills made by him or her. Unless this is stated to exclude Spanish wills, making a new English Will could inadvertently cancel your Spanish Will. If you subsequently make or revise an English Will, please ensure that the person drafting the English Will is aware of the existence of your Spanish Will.

Likewise, a marriage or divorce in either country MAY REVOKE or SUBSTANTIALLY ALTER your existing English and Spanish Wills. In the event that you get married or divorced, it is strongly recommended that you prepare new Wills in each country that you hold assets.

1. Who can make a will in Spain?

The testator (the person making the Will) must be over 14 years old and legally capable in order to make a valid will.

2. Types of wills

The two most common types of Will are:

(a) Open Will

This is the standard form of Will for most individuals in Spain. It is signed before a Notary, who keeps the original document at his office. The Notary will send a notification of the will to the Central Registry of Spanish Wills located in Madrid.

The Notary will usually request the presence of 2 witnesses. This is particularly required where the person making the Will is blind or illiterate.

Minors, persons who are blind, deaf, dumb, or spouses or close relatives of the testator cannot act as witnesses.

(b) Closed Will

The contents of this type of Will are kept secret by sealing them in an envelope.

You must declare before the Notary that the provisions of your Will are contained in the envelope and you must also declare whether you have written them yourself or whether a third party prepared the Will. Also you must declare whether you have signed it or it has been signed by a third person on your behalf.

The Notary then seals the envelope and signs it. It is then filed at the Notary?s office and a notification of the will is forwarded to the Central Registry of Spanish Wills located in Madrid.

The blind or illiterate individuals cannot make this type of closed Will.

3. The Central Registry of Spanish wills

Each Will is assigned a registration number in Spain which is retained on file at the Central Registry of Spanish wills in Madrid. The registration number ensures that the possessions and estate of the person making the Will cannot be sold or transferred illegally.

A legal copy of a Will can also be found at the Central Registry. In circumstances where it is now known if the deceased had made a Will, or if a known Will is lost, one can order a certificate from the Central Registry. Tenerife Solicitors can offer this service for ?200 plus IGIC VAT. If a Will exists, the Registry will provide a certificate with the number and the name of the Notary who is holding it. One can then contact the Notary to obtain a copy of the Will.

4. Who inherits what?

Under Spanish law, there is the possibility to apply the law of nationality to the administration of a deceased?s estate under a Will. However, since August 2016, a Will just actually specify the application of national law, otherwise Spanish law will apply by default. If you made a Will before August 2016, it is strongly advisable to review it to ensure that the provisions are precisely as you intended.

The obvious advantage in applying English law is that you can leave your estate to whosoever you choose, whereas under Spanish law, you have to leave your estate in fixed shares to family members.

If the deceased was of Spanish Nationality (regardless of any dual nationality) then his or her estate will be administered in accordance with Spanish law in any event.

DISTRIBUTION OF THE ESTATE UNDER ENGLISH LAW

a) Where the deceased made a Will:

The following information is intended for those governed by the laws of England & Wales. As English Solicitors, we do not provide advice regarding Scottish law. We can however put you in touch with a Scottish Lawyer should you require additional advice or assistance.

Under English or Welsh Law, individuals are free to leave their property to whosoever they choose in their Will (Spouse, children, milkman, the cat etc).

Please note that in England and Wales under the Inheritance (Protection for Family and Dependents) Act, anyone who was financially dependant on the deceased prior to his death (e.g. a child from another relationship, or a mistress etc) may be able to make a claim against the estate for maintenance where the Will does not make sufficient provision for their needs.

b) Where the deceased dies intestate (without leaving a Will)

If there was no Will (or if all or part of a Will is deemed void or unenforceable) the following rules will apply.

When a person dies without having left a valid will, he or she has died “intestate”.

The following is intended as a guide and not a definitive account of the law. There may be exceptions to the following rules which are not specified here.

Deceased was married with children

• Spouse gets everything up to £125,000 & all personal possessions.
• Anything remaining is divided into two:-
  • Half to the children at 18 or earlier marriage.
  • Half stays in trust for spouse’s lifetime – he or she gets the income but cannot sell or dissipate the assets. On spouse’s death this half goes to the children.

If a child predeceases, leaving issue (children), his issue will take his share (equally between them if more than one child).

Deceased was Married but with No Children

• If there are parents, brothers or sisters of the whole blood, nephew or nieces:
  • Spouse gets everything up to £200,000 & all personal possessions.
• Anything remaining is divided into two:-
  • Half goes to spouse
  • Half goes to the parents. If no parent is living then it goes to brothers or sisters (or to their children).

Deceased was Married with no children or surviving parents, brothers or sisters of the whole blood, nephew or nieces

• Spouse takes whole estate.

Deceased had children but was NOT Married

• Estate goes to children at 18 or earlier if they legally marry.
• If a child predeceases, leaving issue, his issue takes the same share.

Deceased was NOT Married and had NO children

• Estate goes to parents.
• If none, then to siblings of the whole blood or their issue.
• If none, then to siblings of the half blood or their issue.
• If none, then to grandparents.
• If none, then to uncles and aunts of the whole blood or their issue.
• If none, then to uncles and aunts of the half blood or their issue.
• If there are no parents, siblings (whole or half blood), issue of siblings, grandparents, uncles and aunts (whole or half blood), or issue of uncles or aunts, estate goes to the Crown (or to the Duchy of Lancaster or the Duke of Cornwall).

We charge a fixed fee of €240 plus IGIC VAT to prepare your Will, which includes the Notary’s fees and a free review of your existing Spanish or English Will(s) if necessary. For two Wills prepared at the same time (e.g. for husband and wife) we also offer a discount of €10 plus VAT per Will.

If you would like us to prepare your Spanish Will, please complete and return the form below. You can do this online or you may print the form to complete and return at your leisure. You will then be contacted as soon as possible in order to make a Notary Appointment. Please note that you will have to come to the Notary to sign the Will in person. The Will cannot be prepared remotely, nor can it be signed by anybody using a power of attorney.

Please complete and submit the relevant questionnaire below.