If you are a resident in Spain, this is why you should draft a will NOW

This is why UK nationals living in Spain should make a last will and testament in the country immediately

Inheritance laws for British nationals resident in Spain may be affected by changes to Spain’s Legal Code. This could potentially cause problems for the loved ones of UK citizens living in Spain if they die without making a will.

Alfonso Ybarra Bores, professor of International Private Law at Seville’s Pablo de Olavide University, has stated that the change in the law could mean loved ones are left tied up in complicated Spanish litigation if Brits fail to draft a last will and testament before they die.

“The British system offers a lot of freedom when it comes to drafting a will,” says Ybarra, because “an inheritance can be left to whoever is deemed suitable; there are no laws [in the UK] such as those of Spain’s Legal Code that guarantee a part of the deceased’s assets to children or relatives.”

What Spanish inheritance laws mean for Brits

In Spain, it is obligatory for a portion – sometimes a significant percentage, depending on the location – of a person’s estate to be passed to their immediate relatives after they die, a law that doesn’t exist in the UK. This complicates the situation for the children of any Brits who have residency in Spain and don’t make a will, as there may be some conflict between the British and Spanish sides.

While each of Spain’s 17 autonomous communities can decide its own inheritance tax and conditions – and frustratingly they change them on a regular basis – but for the most part as much as one third of someone’s inheritance must go to their heirs.

The major differences between the Spanish and British inheritance systems could have been minimised if European Regulation 650/2012 were applicable in the United Kingdom, but the UK has opted out of this agreement.

This has created different complicated situations at a legal level, because while the Regulation is not applicable in the UK, it does affect British residents in Spain.

For this reason, it’s very important for British residents in Spain to plan what will happen to their inheritances after they die. If they don’t draft a UK will and they die whilst being registered as residents in Spain, the Regulation on succession in the EU would apply and their inheritance would be governed by the regional Spanish laws where they have their main address.

What if I own property and have assets in two countries?

To make matters worse, the General Directorate is also calling into question the validity of wills that are drafted in Spain by British residents and which only pertain to the inheritance of their assets in Spain, and not elsewhere. These wills, known as ‘testamento simpliciter’ in Spanish, are useful for Brits in Spain to decide what happens to their assets in different countries.

There are more than 300,000 Brits living in Spain, and many of them have assets in both Spain and the UK. Of course, it is always advisable to draft a will, but especially in cases where local laws and international assets mean that your heirs can be left with nasty surprises.

Consult an experienced professional about drafting your last will and testament in Spain.

You might also like: 4 things you probably didn’t know about inheritance tax in Spain but should

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Catering for the needs of expats living all over Spain, and particularly in the Costa Cálida and the Costa Blanca, Heniam & Associates offer a wide range of services including conveyancing, legal and administrative advice.

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