Spanish Wills – Commonly asked Questions

30/06/2009 @ 1:27

Q: I have been told that if I have assets in Spain, that I should make a Spanish Will. Is this correct?

A: Whilst an English, Scottish or Irish Will can technically administer your assets in Spain, it can be an administrative nightmare to follow this route, as you have to first apply for probate in your own country, then get the Probate Certificate and Will translated, notarised and apostiled and then brought to Tenerife to begin the whole process all over again to obtain Spanish Probate.

In the meantime, it can be impossible to re-insure the property, pay taxes, re-finance, sell or otherwise deal with the property. Given the likely cost, time and hassle of following this procedure, making a Spanish Will is a no-brainer.

Q: A friend tells me that if I die without leaving a Will in Spain or in the U.K., that Spanish law will automatically be applied to my estate. Is this true?

A: This is a common misconception among British ex-pats. Article 9 of the Spanish Civil Code expressly provides that for non-Spanish nationals, all matters involving family law, divorce, Wills or probate will be administered in accordance with their own national laws. This rule applies regardless of whether there is a valid Will in either country.

Q: I have heard that Spanish law attempts to apply an individual’s national law to the administration of their assets in Spain, whilst U.K. law conversely attempts to apply Spanish law to those assets. I’m confused, which will apply?

A: Once again, Article 9 of the Spanish Civil Code applies. When dealing with the assets located in Spain, the U.K. authorities obviously have no jurisdiction, so they automatically pass responsibility for administration of those assets to the Spanish authorities. As stated above, a British Will can be painstakingly converted for use in Tenerife, but the actual administration of the Spanish assets under that converted English Will (or indeed under a Spanish Will) can only physically take place in Spain. In essence, the British authorities wash their hands of dealing with the overseas assets.

So, we must then look at the Spanish rules, which state that although the Spanish assets are to be administered in Spain and any relevant taxes are to be paid here, the Spanish authorities will apply the ‘principles’ of British law to the administration of the Will and the distribution of the assets.

Bearing in mind that the British authorities have already washed their hands of the matter, this means that the executor or administrator of the Spanish assets will have to explain to the Spanish Probate Registrar the British legal principles that would apply if the assets were situated in the U.K. In most cases, the Spanish authorities are already aware of the relevant British legal principles, as they have dealt with numerous British nationals over the years. However, in certain cases, the Probate Registrar may not understand the application of Article 9 or have doubts as to the relevant British legal principles, in which case the executor may have to obtain a certificate of the relevant British law setting out the correct legal rules that should apply.