Thinking or dealing with Last Wills and Testaments is not anyone’s cup of tea. But if you have assets in Spain (as a property or bank accounts) is highly recommended to organize a Spanish Last Will and Testament to avoid future problems.
What happens if someone passes away without a Last Will?
This is the first question we need to answer to understand how important a Spanish Last Will is. If a British citizen died in United Kingdom, it is clear that English law will apply to the inheritance but, what happens when that person passes away in Spain? Or have assets in Spain? Which law applies?
According to the Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, the deceased can choose between two laws: the law of his/her nationality or the law of the domicile.
But what happens if that person hasn’t chosen any? Then, the law of the domicile will apply. So, if someone died in Spain without a Will, although the deceased is a British citizen, Spanish law might be applied.
However, things are more complicated if the deceased passed away in United Kingdom. The problem here is that United Kingdom is not part of the Regulation (and was never been), so this rule doesn’t apply in UK. Here, we need to study English and Welsh law to understand what happens.
Under English and Welsh law, we must distinguish between properties (immovables assets) and moveable assets. For the second ones, the law of the domicile will rule the inheritance. But properties are settled under the law of the place they are.
So, in a nutshell, if you have properties in Spain, Spanish law will apply if there is not a Last Will (either because the deceased has his/her domicile in Spain or because the English law send us to the Spanish Law).
Who will be the heirs according to Spanish Law?
As we have already explained in one of our previous post (and you can check it again here), Spanish inheritance law is very strict and complex. Under Spanish Law, even if there is a Last Will, the deceased hasn’t got a lot of choices.
The good news here are, as we have already written, British citizens can choose the law of their nationality if they write a Last Will. So, in that case, they will be able to leave their assets to anyone they would like to.
For example, under Spanish Law, the daughters and sons of the decease will inherit, at least, 66% of the assets. But under English and Welsh law, there isn’t no obligation to do that. English or Welsh testator/testatrix has the right to leave his/her assets to anyone, without restrictions.
That sounds awful but, are there more problems involved?
Unfortunately, there are. If someone died without a Last Will in Spain (called “intestato”), the inheritance process is longer and more complex.
As we don’t have a Last Will and testament, the help of a Notary Public is required. The heirs, as well as two witnesses, must go to one of the
Notary Public closest to the place of death and ask for a “declaración de herederos” (declaration of heirs).
In this deed, the Notary Public will explain who the heirs under Spanish law are:
If there are descendants, they will be the heirs in equal parts
If there aren’t descendants, the heirs will be, in the following order: the ascendants, and then the widow or widower, then the siblings and children of siblings and lastly, cousins.
However, some regions (as Basque Country, Aragon, Navarra, Cataluña and Baleares) have their own inheritance rules.
And, after this “declaración de herederos”, the heirs must wait 21 days until being able to sign the “aceptación de herencia” (acceptance of inheritance) deed; the deed which will give them the ownership of the assets.
Basically, if there is not Will and Spanish Law applies, the heirs are determined by the law and the process will be longer, more expensive and more complex.
How to do a Spanish Last Will and Testament? Can I use my English Last Will and Testament for my Spanish assets?
Spanish Last Will and Testaments can’t be signed in a private document in general terms. The testator or testatrix needs a Notary Public. A Spanish Lawyer, as the document must fulfilled both countries laws, is highly recommended too.
As we have already explained, in the Spanish Last Will, the testator/testatrix is able to choose the law that will apply to his/her assets and, according to that law, he/she will be able to choose his/her heirs too.
After signing this document, your Spanish lawyers will deal with the Apostille of Le Hague and they will register the Spanish Last Will and Testament in the “Registro de Últimas Voluntades” in Spain.
Although English and Welsh Last Wills and Testaments can apply to Spanish assets, it is highly recommended to sign your own Spanish Last Will and Testament. All Spanish Last Will and Testaments have to be registered in “Registro de Últimas Voluntades”. And, as you can’t register an English Last Will (because it doesn’t fulfil all Spanish law requirements), you will probably on trouble. Some Spanish Notary Publics don’t accept English Last Will and they will be considered, although there is a foreign Last Will, that the deceased passed away “intestate”.
Is there any problem if someone has more than one Last Will?
As English and Welsh law allows the application of different law to different assets, as we have already studied, there is not any issue to have more than one Last Will and Testament for different countries as long as the testator/testatrix specified the document is only applicable to that country.
Each country has its own inheritance law and local authorities are not familiar with foreign rules, so, as we have already said, it is highly recommended to have one Last Will for each country you have properties.
Written by Ana Escauriaza