EsuriJohn

If both partners are British and they have made a will in UK or Spain which follows the English laws of probate it will be accepted in Spain. The greater problem is if you only have an English will it will take much longer and cost much more to have that will accepted in Spain so it is a benefit to have a Spanish will that reflects the English Law method of disposal of the estate.

If the will in each jurisdiction starts by saying that the will only applies to the assets in that jurisdiction the dates do not matter.

Rostra

Sorry folks, I've only just found this thread.

Please be very careful about Wills.

I settled an estate for a now deceased client some years ago - it must be more than 7 as I have disposed of the file but it was so complicated it's engraved on my brain.

UK citizens resident in Spain.
1. Wife dies suddenly. Knowing she was dying she handwrote a will, properly worded and witnessed, and knowing that the executor and the witnesses could take it to the Notary at that time and it would be accepted. She leaves everything to the husband.

Husband comes to me for help, and as he has no money to pay inheritance tax we decide to wait the 5 years from her death for it to become exempt from IHT.

2. Change in the law meantime - handwritten wills no longer acceptable in Spain. Finally got the will probated in the UK - husband had to make declaration it was their intention to return to the UK before death. This took another FIVE years.

3. One week after receiving probate, husband is found dead. He has made a Spanish will at my insistance, so I don't anticipate any problems. I am the Albacea of his Spanish will. He has left everything to a grand daughter.

4. (This is probably about 10 years ago now) Took all documentation to Notary (good friend and VERY good Notary). BIG shock. As both parties were resident in Spain AT THE TIME OF MAKING THEIR WILLS they have to abide by Spanish Inheritance Law.

a) Wife's estate goes one third to the husband, and one third each to her two children by a former marriage, one of whom hasn't been seen for 20 years. The other offspring is dead, so that third goes to her two children - aforementioned grandaughter and her junky brother who we also can't find.

b) Husband therefore at time of death owns 1/2 + 1/6th (i.e 2/3rds) of the house (the only asset)
c) His estate is also divided between his late wife's children, with one third of it being for his free disposition (the granddaughter)

House is worth €540,000

End result:

Wife's will, leaving her half share, goes to son one third (90,000), one third between grand daughter and grandson (45,000 each), Husband, (90,000)

Husband now owns (270k + 90 k) equity in the house = 360k.
This goes to son one third (120k), one third equally between grandchildren as heirs to their mother (60k each) and one third free disposition to granddaughter (120k)

Son (when we eventually found him) gets €210,000
Grandson (ditto) gets €105,000)
Granddaughter (who should have got it all) gets €225,000.

Heartbreaking.

I was told that this was not new inheritance legislation, but down to a test case on the Costa del Sol in the early nineties where a wealthy American died and left everything to his girlfriend. The disinherited children challenged the will, and won. The GF got one third of the estate and the children got the rest, because the deceased was RESIDENT in Spain, and therefore subject to Spanish inheritance law. A new interpretation of current law.

I would love this to no longer be the case, but I doubt it. Giving your spouse USUFRUCTO is a good move - at least it establishes his/her right to do what he/she likes with the house in his/her lifetime, except that if the property is sold he/she will only get 2/3rd of the proceeds.

I don't usually talk about my cases, but this one was so shattering I have permission from the family to use it as a health warning.

Fred James

A salutory lesson in Spanish law (or at least the interpretation of it).

So what are your recommendations about making a Spanish will under UK inheritance law rather than Spanish law?

Rostra

You can't, unless you are resident in the UK.

If you do make your will according to UK protocol, it MAY be accepted if the relevant Notary is not up to speed (they are human, after all), but watch out for

a) notaries who know what they are doing
and
b) Children who want to inherit.

Rostra

Further thought (I really must go and get some supper) - any heir in Spain can renounce their inheritance, since it brings a tax bill. Your children could be persuaded to renounce their share in favour of the surviving spouse, or better still write an irrevocable Power of Attorney to the surviving parent over the property.

How much do you trust them, is the question.

EsuriJohn

This is very scary and against all the advice I have seen even in recently published English books on the subject. The Notary who drew up and registered our wills made no reference to this although he would only do the wills if they followed Spanish Law which they did since we both wished to dispose of our assests equally between our 3 children with a Usufruct to each other. He also suggested an additional clause that he was aware of from Italian probate practise that made it difficult for one child to dispute the wills against the others without reducing that share to the bare minimum.

JLFS

Me and my wife have both made a will in a notary, and contrary to other posters, Ihave been told that my assets come under Spanish law and so I must leave "la legitima to the kids" but my marida can leave hers to whoever she wants as she comes under UK law.


Wording on my will says:

PRIMERA:

Lega a sus hijos ..............los derechos que por legitima puedan corresponderles. Es deseo del testador que el pago de sus derechos hereditarios sean satifecos preferiblamente mediante la entrega de dinero en efectivo, y si este no fuere suficiente, el resto hasta alcanzar la legitima estricta maediante participaciones sociales de la mercantil ..............

Then wording on wifes will says:

Nombra e instituye Heredero Universal de todos sus bienes, derechos y acciones presentes y futurs, a su citado esposo JLFS (me).

We both wanted to leave the entire amount of our assets to each other, but I cannot, my wife can because she comes under British law, which contradicts what is being said in this thread, our wills are dated May this year 2011.

JLFS

Go to the notary and tell them you are British and they will tell you that you can dowhatever you want with your assets.

We have been told that british citizens follow UK rules by more than one notary, it seems strange that all of them have got it wrong.

JAJ

I would have thought if property is in Spain, it would follow Spanish inheritance law (unless Spanish law provides otherwise for non-citizens). A foreign will could perhaps cover non-Spanish property.

Also be aware that if you want to escape UK Inheritance Tax you have to show you're no longer domiciled in the UK. Keeping a UK will is indicative of retaining a UK domicile.

megmet

That is the way I understand it!
As British citizens in our case our wishes would be followed according to British law, citizenship is different to residency and always takes preference.

JLFS

According to the notary that we made our will with, you are bang on......

JLFS

Under Spanish inheritance law a senario would be.

Spanish coulpe married, with no children and live in a house that was passed down from wifes mother:

Wife dies, husband leaves house to wife, under Spanish law the house would be inherited by the wifes family, because the husband, although he would be entitled to assets willed to him bythe wife, cash etc.

The properties revert back to the bloodline that it came from.

There must be UK citizens who inherited properties from british parents in Spain, after all some have owned property for 30 or 40 years in lots of cases.

If you had the case that a Brit inherited a house from parents, had a wife and no children, I for one cannot see that a probate solicitor in Spain would go back over the family tree in the UK, to find the heirs/brothers and sisters etc, of the deceased husband, and return the house back to the blood family, thus leaving the wife without the house they shared as man and wife.

That is what would happen if Spanish inheritance norms were carried out.

As for the INFRUFRU situation, acceptable as it is to the Spanish, I cannot see many British accepting such a reduction in status, and ending up as nothing more than a "long term-rent free tenant" in a house that they automatically expected to become theirs after the spouse dies.

Fred James

Everything I have read says that if you are British you can leave your Spanish assets to who you like.

However there has always been the proviso that if your spouse/children were to contest it in a Spanish court it is possible that Spanish inheritance law would apply.

Fred James

The law on wills is confusing to say the least. Spanish law says that UK law will apply but UK law says that Spanish law will apply to property located in Spain so, in theory, Spanish law applies to a UK will. However accepted practice is that a will written under UK law will apply and these wills are usually accepted by the registrar.

The downside to this is that although the Spanish authorities choose not to enforce the law, a disinherited child or spouse could apply to the Spanish courts to overturn the will and apply Spanish succession law.

It is hardly surprising that there is some confusion on the issue.

Rostra

Spot on, Fred, except it is only children who can contest. The spouse has no inheritance rights. But the test case apparently clarified this, and made Spanish law dominant. If there is no will, under Spanish law the lot will go to the children.

The point about UK inheritance tax is a good one though. IHT is NOT specifically covered by the DTAgreement. Don't forget that if you don't declare a Spanish inheritance for 5 years (actually 4 1/2 + a bit) it becomes exempt from inheritance tax. I don't know why they haven't got rid of this loophole, but they haven't, yet. UK law has no such loophole.