Question about wills
Fiscal and legal advice from Webster Asesores
DEAR Sir,
Our children have been fortunate enough to havmade sufficient money for a few generations, and the little we have we would like it to go to some friends who really need it.
This, in England, would be simple enough. However, a friend of ours who has lived in Spain for more than 20 years and seems to know quite a lot about these things, has informed us that in accordance with Spanish Law, we must leave our estate to our children and that we cant´ leave it to whoever we want.
We look forward to reading your comments in the Costa Blanca News.
ANSWER
You mention England in your letter, so I am assuming you are English. Your succession is regulated by your national law. This means that the law of your country will apply to your succession. So if you have total freedom according to English Law to leave your assets to whomever you wish, this will also apply to your assets situated in Spain.
A few years ago, the EU decided to change something that had worked well for hundreds of years. After this was agreed, all countries would apply their national law to assets situated in those countries. This was before Brexit, and the UK did not ratify this new EU law, so the nationals of the UK would still be able apply their national law to their succession.
Spanish succession law divides the estate into three parts. One third has to be left to the children. Another third can be left to whomever you want, and the remaining third can be used to improve the share of one of the legal beneficiaries.
It is usual for Spanish wills for Spanish people to leave one third to the children (as the law states) and another third to the spouse in the form of the life interest or usufruct of the property, and the other third to be distributed according to the wishes of the testator.
It is therefore very important for those foreign nationals to take advice and to ensure that they leave their assets in accordance to the law that may be applicable.
This will avoid unnecessary complications after ones´ death, lengthy and potentially expensive legal procedures, and the peace of mind that your assets will go to who you wish to benefit from them after your death.
Making a will in Spain is not too complicated. Our advice would be to make an appointment with a solicitor.
The will has to be signed in the presence of a notary, which will be arranged. Once the will has been duly signed and authorised, a notification will be sent to the Ministry of Justice in Madrid where it will be registered.
The notary will keep the original signed document in perpetuity and on the day, you will receive a copy of the document you have signed.