By Claudia Font. Partner, Solicitor & Spanish Lawyer.
I am moving to Spain from the UK.
Do I need a Spanish Will if I am not going to buy property there?
You might think that if you are going to live in Spain but without buying property, there is no need to have a Spanish Will in place.
Well, it certainly is not mandatory to have a Spanish Will just because you are going to live in Spain, but it is important to explain why it is advisable.
You might have retained a property in the UK, or you may have only savings and/or your UK pension, but there are two facts that will probably apply to you no matter where your assets are located, which are:
1) you might have a bank account in Spain with some funds for your living expenses that can potentially generate some savings, and
2) since you live in Spain for more than 6 months a year, you will be considered to be a Spanish resident.
Considering them both, it is likely that you (and your beneficiaries when you pass away) will benefit from you having made a Spanish Will.
1. About your savings
Even if you do not have property in Spain and you only have savings in your Spanish bank account when you die, your beneficiaries will have to deal with the estate, in order to have the assets transferred to them. Furthermore, even if your beneficiary is your spouse, and the bank/savings account is a joint account, the surviving spouse will not be able to access your share of the account, unless she/he can show they have completed Spanish probate. In fact, when banks know that one of the account holders has passed away, they sometimes freeze the account until they can confirm that probate has been completed and you have the right to benefit from those savings. This can be an unpleasant and problematic situation for the beneficiary (usually the surviving spouse or partner).
Having a Spanish Will in place will certainly speed the process of transferring your savings to your spouse or beneficiaries, it will help avoid intestate succession issues and last but not least, it will save them some money.
2. About your residency
Spain does not recognise the “domicile” concept. This means that even if from a UK point of view, you still domiciled in the UK when you die, if you are living in Spain most of the year, Spain will treat you as a Spanish resident.
The estate of a Spanish resident is governed by Spanish law, unless the deceased had formally chosen to keep his/her personal law to apply to the estate.
One of the main changes that the EU Regulation on Succession (EU) No 650/2012 introduced is the fact that now i.e. since 17th August 2015, what determines the law that should apply to a succession is not the nationality of the deceased but the place of his/her habitual residence at the time of death.
Despite the said Regulation being ratified by Spain but not the United Kingdom, British nationals can still take advantage of one of its important points which is choosing which country’s law should apply in relation to their Will.
Therefore, even if you are resident in Spain you still can decide that the law of England and Wales is used to apply to your Spanish estate - but you have to make that choice specifically in a Spanish Will.
And why would you prefer to make English Law applicable to your succession rather than just letting Spanish Law to step in?
There may be a few reasons but one of the most commonly considered when assisting on cross-border UK-Spain Wills, is to avoid the enforced heirs’ rule that will apply to your estate if Spanish law is to govern the succession. Under Spanish law, part of the assets are not freely disposable and are to be transferred, by law, to your children.
Please note that if you already have an English Will and you want to write a Spanish Will it is important that you seek the advice of a dual-qualified Spanish lawyer and English Solicitor, to make sure that when the Spanish Will is drafted, it does not revoke any previous Will you have made in the UK.
Please feel free to be in touch for further information.
Partner, Solicitor & Spanish Lawyer
D: +44 07788 585 115
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