In recent years it has become clear that the situation with regard to probates for the English and Welsh in Spain can be very complex. The law applicable to English probates in Spain is not as clients often assume.
We should explain firstly that in Spain when someone dies their assets held in joint names DO NOT pass automatically to the surviving spouse or joint holder. We find that many people do not bother making a Will because they assume this.
This means in certain cases, depending on the circumstances, Spanish law and enforced inheritors can be applicable. Enforced inheritors in Spain are the CHILDREN EQUALLY.
Choosing Law of Nationality
Also, even if a Spanish Will has been written including the clause that someone chooses their law of nationality (UK), in certain circumstances this can still be contested. This is because in certain cases English Law has to be transferred to Spanish Law.
This has affected many probates in Spain that we are aware of and we wish to make some fundamental points:-
Important Points to be aware of in regard to the Law Applicable to English Probates in Spain
- Spanish Law is not the same as UK Law. Joint assets do not pass to the survivor. This is because property is generally owned differently in Spain, not as joint owners but more as tenants in common with separate shares or percentages.
- Anyone with assets in Spain should definitely make a Spanish Testament and take advice on inheritance tax repercussions of that Testament. Notaries do not usually give this advice.
- Any partners or spouses with Spanish assets and children not in common (ie. step children) should seek legal advice. This is to check what they want to happen when they die, will actually happen or whether it can be contested, due to Spanish Law.
- In certain circumstances, even if a Spanish Will is written choosing law of nationality, it may not be enough to stop enforced heirs (children) contesting it. An example would be if someone chose their partner as heir but the deceased was domiciled in Spain. And also had a house in Spain, moveable assets in UK but no properties in UK. Then Spanish law would apply, which means enforced heirs and their own children by blood inheriting.
- A properly drafted Spanish Will by a Notary, registered in the Ministry of Justice, is not easy to contest. However, as stated above, it may be possible in certain circumstances. Generally prior to Probate being granted.
- If there is only a UK Will (not Spanish) and it states it does not cover assets outside of the UK, this can cause grave problems. As basically the Spanish Estate will be intestate. It is important to ensure that there is also a Spanish Will. Everyone with Spanish assets and no Spanish Will should check this straightaway.
Please seek legal advice on any doubts about Wills/Testaments and Probate or Inheritance in Spain. It can really save a great deal of heartache later.