Hi,

I am resident in Spain and don't own a UK property.
I have been working with my Abogado trying to amend my Spanish will before August to be read by the law of nationality. .
I took the note Fred so kindly provided to my Abogado and he has been in to see the notary on my behalf .
I had an email from him yesterday which seems to imply that I am unable to amend my will.
Here what he said, if anybody can enlighten me I would be grateful. Thank you......................

" The Uk is not part of the new regulations in the EU about wills. This new regulations will be applied only in the continent of Europe. The changes in August are therefore irrelevant for UK citizens and they have to be very carefull with changes in their will. If we just say in the will that you want that the law of your nationality rules your inheritance, at the end the Spanish law will be applied because the UK laws say that the law of residency has to be applied if you have no assets in the UK."

I think he is wrong - it wouldn't be the first time a lawyer gave the wrong advice.

I have spent an hour or so reading many other lawyers' opinions on this subject and out of about 20 I only found one that said it could be ignored, and that was not a very well presented site.

From what I have gathered, the situation is that, yes, the UK has chosen not to implement the directive, but Spain has and as the property is in Spain and you are resident, Spanish succession law will apply unless you specifically ask for UK law to apply in your will.

The UK succession law has not changed so you are entitled to use that. The fact that they haven't signed up to the deal is completely irrelevant. It might be very different if you were Spanish, UK resident and living in the UK in a UK property.

The situation in the past was that if you had a Spanish will and were a UK citizen, the UK took the attitude that they would pass the buck to the Spanish to decide what law would apply - legally it's called a "renvoi". The Spanish basically passed the buck back - a "double renvoi" and by concession, not by law, did not insist on Spanish succession law, however, it was possible for a disinherited heir to challenge the will in Spain and Spanish succession law would then apply.

This sort of situation is common in the EU which is why the EU directive was issued in an attempt to clarify the situation. The effect now, is that if you have property in Spain and are resident, Spanish law will apply as they can't pass the buck any more.

If your lawyer refuses to do it, I suggest you find another lawyer or go to the notario direct and get them to sort it out.

Of all the stuff I looked at, this one gave a very comprehensive summary.

http://www.spanishpropertyinsight.co...an-regulation/

And this one covers all the legal stuff - warning - it will make your brain hurt!

http://www.mylawyerinspain.com/pdf/c...onsarticle.pdf

Thank you Fred as always for your very valuable advise .

As usual Fred is entirely correct - I have written articles on this for a firm of abogados in Alicante. The fact that the UK has not signed up is totally irrelevant, this new law gives Expats resident in Spain new rights and options because Spain HAS signed up for it.

Manclass I suggest you move to a firm of abogados who are up to-date with the latest laws and I wonder what other duff advice have they given you?

There is a free seminar next Weds (12th) on the new wills law in the Quesada (Alicante) area - PM me if you want more info.

I am out of touch on this. I am simply a property owner, non resident in Spain, resident in the UK. Does this law apply to me and is the case of non residents detailed in the spanish insight article? I do have a Spanish will but it dates back to 2003.

Edit: just read spanish insight and for a non resident with no intention of becoming resident there is no need to do anything.

Only applies to expats who are resident in Spain.

Correct. The link I posted makes that very clear.

I have spoken to a few expats who have decided not to get their will changed on the basis that they are happy that their children will not contest their will, so they don't really need to make the changes.

That is fair comment but I think there is another aspect to this which adds a complication.

In the past, a will made by a foreigner was assumed to be OK so long as it followed their local rules about succession. After the death of one of the parties, the paperwork all went through and the assets were transferred to the surviving partner. The children, should they choose to contest the will, would have to get the will and any any subsequent transfers reversed in their favour - quite a long and expensive process with no guarantee of success.

The situation under the new law is that, if the wording is not added, the will will effectively will be dealt with in the same way as any will written by a Spaniard.

I raised this with my gestor this morning, as we are in the process of changing our wills (to comply with the new law but also to add a new beneficiary). He told me that the way this would be dealt with for a Spanish will that did not conform to the Spanish laws of succession, is that, before the assets could be transferred to the chosen beneficiaries, the "rightful heirs" would have to swear in front of the notary that they wished to renounce their hereditary rights to the assets.

After next week, any will that does not contain a reference to wishes regarding the laws of the home country, will be treated this way, which would add another level of complication and hassle to the whole process of the death of a close relative - something that I think most people would wish to avoid.

So, even if you are 100% happy that the children will go along with your wishes, it is clearly a better option to make sure that you modify your will if required.

I would stress that this is the advice I received from a gestor whose advice I have no reason to doubt, but I would not claim that is necessarily correct - so make your own inquiries if you think this could affect you. If I can find any further corroboration of this advice, I will post it here.

A client of mine had exactly this situation happen this year when her husband sadly died. Both Spanish residents with property here - children in the UK one of whom had been 'disinherited' . Even though the parents had amended their Spanish will, adding the wish to be treated under UK law, the Spanish local authority in Pizarra still insisted that ALL children/beneficiaries were notified and agreed to those wishes. Net result - the disinherited child became aware of the death and subsequently disagreed with the will and decided, via a UK lawyer, to contest it so that she be included.

This worries me, too. I don't want to go into details in a public forum, but wills can be contested and often quite easily reversed or ignored. The local notaría is totally unhelpful, even obstructive, and the local abogados aren't up-to-date or bothered - they seem to be half alseep. I wish I could get some proper advice from someone who is both knowledgable and interested.

I would also like to know, if you don't leave your house to your children, or if you have no children, who deals with all the things such as cancelling telephone contracts, closing bank accounts, oaying the last bills, distributing your belongings and legacies? A gestor who offered to do it would have charged me 6% of the estate!

In the UK you have an executor that you nominate who does such things in conjunction with your solicitor ... normally a close friend or relative. I'm not sure if the same option exists in Spain, but I guess the gestor in that case would just become your paid executor, and you just have to trust him to do it

If you are in the CB North I have a good Solicitor who can advise, in Gandia

Yes, you can name an executor here, but it's not usual and you know how people hate to do what's not usual.
Thank you, Mitziboy, but I'm on the other side of Spain.
Oh well, keep tryinng - by now there's not much left to inherit anyway - a house that'll never sell, a few euros and some clothes and plants!
I'll be dead, so won't care, but that doesn't stop me caring now!

So does this mean that new wills drawn up by future residents (all after 17 August... ie now!) can't opt for UK succession laws? We will all by bound by these ridiculously outdated Spanish rules on succession?

Edit: OK, I'm reading things now that suggest that new/future wills (made after Aug 17) will allow you to opt for UK succession laws under the EU regulation. The deadline was for people to change existing wills. Of course, they can also make a new will after 17 August which would then supersede the old one - but they shouldn't do anything silly (like dying) before making out a new will!

Just to clarify - from 2015 if you wished to incorporate the new wording in your will, you could do so. If you did not, the will would still be handled under UK law as it has been for many years.

After August 17th this year, if you did not have the wording in your will, it would be dealt with under Spanish succession law.

Incidentally, the wording that my gestor uses is as follows.

The bequeather states that this Will is possible in accordance to their personal law, and does not prejudice or obstruct any Will executed in their own country or any other country other than Spain, declaring that it is her wish that the laws of heirship of her country of nationality are applied to her heirs´ successions, that of England and Wales.

La testadora manifiesta que esta disposición que ahora otorga, es posible con arreglo a su Ley personal y no prejuzga ni impide cualquier otra que pudiera tener otorgada en su país de origen o en otro distinto del de España, declarando que es su voluntad que sean aplicadas las normas sucesorias del país de su nacionalidad a su sucesión*, en concreto las de Inglaterra y País de Gales, en concreto las de Inglaterra y País de Gales.