Posted in: Case studies, Wills and Testaments
We are often asked if a Spanish Will is needed or if clients should only have one Will or Testament covering the UK or Spain.
A UK firm contacted us last week to ask our opinion on the advice of another Spanish solicitor who advised clients with property in Spain. Their advice was to make a Will in the UK and revoke all other previous Wills made, including Spain. Note: revoking a UK Will would not automatically revoke a Spanish Will. Only going to the Notary in Spain in person to revoke it would achieve this.
This solicitor advised some non residents of Spain not to make a Will in Spain nor to have two separate Wills. Just only one UK or Irish Will (or other home country). For Residents of Spain, however, they advised them to write a Spanish and UK/Irish Will.
We were asked if we agree with the other solicitor that clients should make only one Will to cover their worldwide assets?
Of course, every lawyer may have a different opinion and we respect that. However, our advice, with our experience, would be to have two Wills. One made in the home country and one in Spain, for both non-residents and residents.
Firstly, if there is no Spanish Will then the beneficiaries of the deceased will have to apply for a Grant of Probate or equivalent in the UK/Ireland. This will need a Hague Apostille and to be translated. A Spanish Will or Testament makes matters much easier, cheaper and quicker.
Obtaining UK/Irish Grant of Probate can take a while sometimes. Careful consideration needs to be taken of the 6 month deadline to apply to extend the time to pay inheritance tax . (This can only be applied for by the beginning of the 5th month). Thus, it is possible that having to apply for UK/Irish probate would cause a higher inheritance tax figure if the deadline is missed or the extension is not granted. (Which could have been saved by having a Spanish Will in place).
If the Wills contain wording to implement a geographical limit, such as “Last Will and Testament of XXXX limited to assets only in the UK/Ireland), then this could cause problems. Clients should contact their British/Irish solicitor and ask for a codicil to be added to existing home country Wills. This is to record wishes with regard to worldwide assets outside of the UK/Ireland. Or to write a new Will in the UK/Ireland and remove any wording which references a geographical limitation.
We have had problems with limitations in UK and Scottish Wills, these cause huge problems. Please refer to us if you have a home country Will with a geographical limitation.
When there is a Spanish Will the Notary in Spain does not need to look at the home country Will. Nor do they require UK/Irish/Foreign Grant of Probate. Therefore our advice is to always write a Spanish Will. When the UK/Irish Will has been done first then we would like to check the wording. This is to take it into account when preparing the Spanish Will.
If a Spanish Will is the first Will to be written, there is something to note when a client signs a Will in the UK/Ireland/another country. It is important to indicate that they wish to maintain the validity of the Will signed in Spain.
Bear in mind that in Spanish Wills, British citizens can sometimes decide the law applicable and appoint their inheritors according to their national law. But only if there is a special provision in the Spanish Will and also if in certain circumstances an automatic transfer to Spanish law would not apply.
We would also emphasise for a client with children by a first marriage that has remarried, if they wish assets to pass to their new spouse they should definitely seek legal advice on their Wills. This is very important.
A client should make two Wills; the one in Spain will affect only the assets and rights he has in Spain. The one in UK/Ireland/another country if appropriate for what they have there.
Our clear advice is to have two separate Wills. One back home and another one in Spain. Please always make sure with assets in Spain to have at least one valid Will. Otherwise the inheritance process is more complicated and expensive. We can help with any queries on this matter.