LEGAL4SPAIN.COM - Blog-Updates

LEGAL4SPAIN.COM - Blog-Updates


Spanish Wills
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Estate planning for Expats

How to access healthcare as a permanent resident of Spain

Why Spanish property owners need Spanish wills

Spanish Wills &Estate PlanningPosted by Anne Sun, October 15, 2017 13:01:49

For owners of Spanish properties, the importance of making a Spanish Will is paramount.

In general terms, a correctly executed Spanish Will ensures certainty, speed and economy in the event of Spanish probate; and also provides the facility for tax efficiency.

Conversely, the consequences for the beneficiaries of a non-Spanish national who dies leaving Spanish assets, but no Spanish Will, can be unexpectedly onerous. In our Spanish probate practice, to date, there is not a single case where we have not found a solution to complete Spanish probate- however unusual the circumstances.

In a few exceptional cases, whilst it has been possible to ‘unlock’ the Spanish property by completing the Spanish probate case, the combination of the failure of the deceased to make a Spanish Will and the consequential forced application of Spanish legal and fiscal principles, has inevitably created situations of significant complexity for those left behind. A couple of examples will illustrate the point.

Intestate Spanish resident

A deceased English lady, estranged from her three adult children from her first marriage, since her second marriage 25 years ago. She died totally intestate. She had taken Spanish residency along with her second husband, in her final years. She had verbally expressed her intention that her surviving husband (and co-owner of the Spanish property) should receive her 50% interest in the Spanish property in the event of her death.

As the deceased was habitually resident in Spain at the time of her death, in the absence of any legally binding direction for English succession law to apply (by her not having made a Spanish Will), Spanish succession law had to be applied.

Spanish succession law generally operates to protect the interests of descendants- therefore in this case, necessitating the long- estranged deceased’s children’s involvement in the Spanish probate process.

The deceased’s children (after no contact in 25 years), had to be traced through genealogy professionals. Rejecting the proposal simply to renounce their entitlement, as had been hoped, the deceased’s husband is left with a restricted interest in the Spanish property- now being a co-owner, along with his deceased spouse’s children- whom he had never even previously met.

Had the deceased signed a simple Spanish Will containing an expression of her wish for her husband to inherit- pursuant to English succession law, her husband would have enjoyed a comfortable retirement; and he would have been able to sell the Spanish property as he had planned with his late wife; enabling him to return to live in England. He would have received the Spanish property sale proceeds following his wife’s death.

Instead, he remains in Spain with all his wealth tied up in a Spanish property, which is now co-owned along with individuals who are not known to him; and whose willingness to co-operate is directly linked to ill-feeling over the demise of their parents’ marriage 25 years ago.

In fact, had it not been possible to find the solution we did, the situation would have been significantly worse for all concerned, with the property totally ‘locked’ in legal terms; and selling or dealing with (mortgaging/ letting) the property would have been totally impossible. Our solution of the case at least provides a framework for the family to come together and settle terms between them for the disposal of the property- which could then be effected without any further legal complications.

An English resident couple in a civil partnership with a property in Spain

Each had English Wills leaving their respective worldwide Estates to a common friend.

Each partner then intended as part of their overall Estate planning, to sign a Spanish Will leaving a life interest in their respective shares in the Spanish property to the surviving civil partner, with the underlying legal title in the Spanish property passing down to the common friend.

This intended Estate planning strategy would have resulted in a zero Spanish Succession Tax bill for the surviving partner; and his having a secure lifetime interest, guaranteed for his remaining years- living unencumbered in the Spanish property.

But the failure (by the partner who then died before signing his Spanish Will), to act promptly in signing the Spanish Will as planned, meant that the surviving partner was unable to claim the intended lifetime interest in the Spanish property.

And furthermore, because of a quirk in the regional rules for calculation of Spanish Succession Tax, this also led to a total Spanish Succession Tax bill of more than 3 times the amount it would otherwise have been (from 20,000 Euros up to more than 60,000 Euros).

So, again, the best possible solution in the circumstances was found for the case to ‘unlock’ the Spanish property. But the failure of the deceased to have put in place a Spanish Will with tax efficient Estate planning, unavoidably frustrated his testamentary wishes; and also left an unnecessarily high level of tax exposure.

The Legal 4 Spain team is always available to provide preliminary advice on a no-obligation basis in relation to Inheritance and Estate Planning cases where there are Spanish assets.

Spanish Assets- Lifetime Estate Planning

Spanish Wills &Estate PlanningPosted by Andrew Fri, March 24, 2017 00:05:50

At the outset of many estate planning cases which involve Spanish assets, advice is required as to the options for ownership changes within the family.

A typical scenario is: a married couple, who have owned their Spanish holiday home for many years, but health/ mobility issues as they have got older, mean that their use of the holiday home is on the decline. But meanwhile, their children/ grandchildren are very happily ‘taking over the reins’!

In terms of estate planning then, the Spanish property starts to become more of a liability than an asset- particularly in terms of potential future inheritance tax liability.

The Spanish property is usually non-income producing (particularly in the light of recently introduced increased bureaucratic requirements for short term lettings in Spain). So, it seems logical that the ownership should be ‘passed down’ within the family, to reduce estate size/ future tax liability- but without any loss of income (and still with the possibility of the continued occasional use of the property by the transferor).

This is logical in theory; but other than the obvious practical considerations (the assumed continued solvency/ marital situation of the recipients; and assumed continued harmony within the family), there are important additional considerations which need to be borne in mind; including:

1. There is a Spanish taxation liability for recipients of gifts of Spanish assets, the calculation of which is broadly similar to Spanish Succession Tax, (but without all the regional allowances and deductions). In other words, the Spanish lifetime gift tax has a similar- or higher- impact on the recipient than if they were to inherit the asset. (This is therefore entirely different in concept to a Potentially Exempt Transfer under the UK IHT regime). There can, of course, be situations in which the Spanish lifetime gift tax does not counteract the fiscal wisdom of a lifetime transfer- for example, if in overall (worldwide) estate planning terms, it is still advantageous to pass the Spanish property down a generation (or two); or if a Spanish property can currently be transferred at a low value- so a relatively low tax amount- when a future increase in value is anticipated. It can be better in that case, for the next generation to ‘enjoy’ the uplift in value, rather than storing up an ever increasing Spanish Succession Tax liability in the original owner’s hands.

2. Further on the Potentially Exempt Transfer point- whilst a UK tax payer making a gift of their Spanish property within the family could constitute a Potentially Exempt Transfer- so over time, it comes out of the worldwide taxable estate for UK IHT purposes- one would need carefully to consider the fiscal consequences of the donor failing to survive the qualifying period to achieve the maximum UK IHT benefit.

3. Also for UK nationals considering making a lifetime gift of a Spanish property within the family, UK ‘gift with reservation’ considerations need to be addressed and factored into the arrangements for any continued use of the Spanish property by the donor. As would be the case with a UK asset which is gifted, but then still used by the donor, the continued use of the asset needs to very carefully documented/ financially accounted for, to avoid the gift failing for UK IHT purposes; and the asset therefore not (fiscally) leaving the donor’s estate.

4. A change of property ownership in Spain can be effected by way of a sale between family members rather than a gift- as often, the rate of tax on a sale is less than the rate of tax on a lifetime gift. However, this type of transaction would inevitably be very carefully scrutinized by the Spanish Tax Authority, to ensure that the sale is not a sham, simply to reduce the taxation basis from lifetime donation down to the sale taxation level. So, the property could not be sold at an undervalue; and the Authorising Notary would actually need to see evidence of funds passing between the the buyer and the seller. And of course, the funds for the transaction cannot be provided by one family member to another within Spain, otherwise that would be a taxable lifetime gift of the money! So, any such transaction has to be extremely carefully orchestrated, to be legally and fiscally compliant. And an assessment has to be made on a case by case basis, as to whether or not this is advantageous when compared to a lifetime donation transfer.

5. A change of Spanish property ownership- even within the family- triggers other costs and taxes, so these need to be factored into the equation. In addition to the donation/ purchase tax, the additional expenses include Notary and Property Registry costs; and Plus Valia tax (a local Town Hall tax payable on property transfers, based on rateable value and length of transferor’s ownership. It can also be necessary to update contracts for property services (water/ electricity, etc), and this can trigger a requirement for re-certification for safety/ compliance purposes; and possible updating/ upgrading of supply apparatus.

The above is a non-exhaustive checklist of the issues. In the majority of the cases we see, whilst a full analysis and discussion can be helpful, the conclusion is that the costs and complexities of a lifetime transfer of a Spanish property within the family outweigh the benefits. In this case, the focus returns to tax efficient Spanish Wills and estate planning.

The Legal 4 Spain team is always available to provide preliminary advice on a no- obligation in estate planning cases involving Spanish assets.

New European Law Affecting Wills and Inheritance in Spain

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 15:27:03

September 15th, 2014

A new European law will come into full effect on August 17th 2015, with the intention of simplifying inheritance cases across Europe.

This new law will apply to owners of Spanish properties.

The problem the new law addresses

There has been legal uncertainty previously in the estates of many non-Spanish owners of Spanish properties, as to whether Spanish succession law applies or the owner’s own national succession law.

The distinction is particularly important for English owners of Spanish properties, where their own (i.e. English) succession law effectively enables them freely to choose their heirs (including as to Spanish assets), without limitation in the majority of cases.

Conversely, if an English owner of a Spanish property were to choose (or be legally forced) to follow Spanish succession law, then a strict division of the Spanish estate would be imposed under Spanish law- with a minimum of two thirds passing to descendents; and very limited discretion generally as to who receives the Spanish estate.

The solution provided by the new law

The new law gives people affected by the problem, choice as to which succession law applies to their estate.

Well advised English owners of Spanish properties will in any event, have already made separate Spanish Wills in anticipation of the new law, clearly electing for their own national succession law to apply. So they can be certain that their Spanish estate will pass as they wish; and not pursuant to the strict Spanish legal requirements (which in the vast majority of cases, are incompatible with English testators’ actual wishes).

In any event, English (and indeed other nationality) owners of Spanish properties are advised to take this opportunity in anticipation of the new law, to review their Spanish Wills with their legal advisers, to ensure that they have clearly and unambiguously chosen for their own national succession law to apply to their Spanish assets (if that is what they wish). Also, to ensure that their Spanish Wills are in all other respects, fully up to date; legally compliant in Spain; and tax efficient.

In the event of a failure of by an English owner of a Spanish property to leave a valid Spanish Will electing for English succession law to apply to their Spanish estate, the position under the new law will be determined by a new statutory ‘habitual residence’ test, such that:

• If the English owner of the Spanish property is habitually resident in Spain at the time of death, then Spanish succession law will apply to the Spanish estate.
• If the English owner of the Spanish property is habitually resident in England at the time of death, then English succession law will apply to the Spanish estate.
• If the English owner of the Spanish property is neither habitually resident in Spain at the time of death nor in England, then it could be either English law or the law of the actual country of habitual residence. This scenario would need to be legally determined on the circumstances of the case.


In order to avoid uncertainty- bearing in mind also that many people change residential status in the final period of their lives, particularly due to healthcare considerations- it is always best not to rely on the ‘default’ position under the new law. Instead, it is always best practice for a Spanish property owner to sign a professionally prepared, up to date Spanish Will with a clear statement of their wishes as to the succession of their Spanish estate. This can also ensure that any up to date tax saving opportunities are used to their full advantage.

This general commentary is not intended to be exhaustive; and case-specific legal advice should always be sought.

The Legal 4 Spain team provides a full estate planning and Will writing service for properties and other assets anywhere in Spain. We are always happy to provide a competitive cost estimate in the first instance, on a no-obligation basis.

When to Gift Spanish Properties to Children

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 15:13:23

It occurs to many existing owners of Spanish properties that transferring their properties into their children’s names could provide future inheritance tax savings.

Unfortunately, once the Spanish property has been purchased and registered in the parents’ names, it is often too late in economic terms, to achieve this.

For non- Spanish nationals, the tax consequences of passing a Spanish property down to the children need to be extremely carefully considered- both in Spain and also in their own country.

In Spain, a lifetime gift is subject to taxation at a level which is, in many cases, even higher than the tax payable in the event of a parent’s death. As an alternative to a gift, a sale/purchase between parents and children can result in a lower tax liability; but the transaction has to be meticulously executed to avoid it being treated by the Spanish Tax Authority as a gift in any event; and therefore taxed at the higher rate.

There does exist in certain circumstances, however, a further alternative option- the property ownership structure can be collapsed, to reduce the number of co-owners in a comparatively tax efficient manner. But this only enables transfers to other co-owners. For example, a transfer can be made from one co-owning spouse to another; or (if children are already registered co-owners of the property), in favour of children.

So, for families to avoid being ‘locked in’ to a Spanish property ownership structure which stores up unnecessarily onerous tax liabilities in the long term, careful thought needs to be given at the outset- when the property is first purchased- as to the most efficient holding structure.

But (as an example of the complexities which can arise) even for English buyers of Spanish properties, it is not simply a case of ‘buying in the children’s name’. There are also UK taxation ‘gift with reservation’ issues which need to be addressed. If the parents pay for the Spanish property, then register it in the children’s name but continue to use the property themselves, they then need to pay (and carefully document) an appropriate rent or contribution towards outgoings. Failing that, the gift of the money to buy the Spanish property could end up not leaving the parents’ UK IHT estate.

In summary therefore, when acting for clients on the acquisition of Spanish properties, it is essential that the legal adviser provides full advice both under Spanish tax law and also having regard to the buyer’s own national tax law, as to the most efficient way to hold the Spanish property. This enables the buyer to secure the best overall tax position; and to ‘keep their options open’ as regards future tax and estate planning within the family.

What are the risks of not having a Spanish Will?

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:22:29

August 1st, 2013

There unfortunately continues to be a lot of misinformation in circulation on this subject- particularly ‘opinions’ posted on the internet by those not in professional practice.

The starting point is that if you own a Spanish property, you must have a Spanish Will.

Notwithstanding this; and quite possibly because of incorrect advice, many British owners of Spanish properties die each year, having made no Spanish Will. This can result in complex and expensive Spanish probate cases.

However, the mission of our team is to inform our contacts and clients during their lifetime as to the best solution in each individual case.

In the vast majority of cases, as indicated, the best solution is that during their lifetime, non- Spanish owners of Spanish properties should ensure that they make separate up-to-date Spanish Wills, to deal with their Spanish assets. The main benefits are:

• It avoids ambiguity as to which national succession law is to be followed. In many cases, this can present testators with greater choice in selecting beneficiaries.
• It avoids protracted and potentially highly costly Spanish probate procedures.
• It provides opportunities for efficient tax planning.
• It enables clients to enjoy the protection and peace of mind of being able to use Spain’s excellent compulsory national Wills Registry.

The quality of the professional service in provision of Spanish Wills is of paramount importance. We have identified the main features of our Spanish Will service which we consider to be of key importance to our clients:

• Our clients can be confident that our documents have been produced with both Spanish and English legal input and taxation analysis, which is absolutely essential when dealing with dual (or multi) jurisdictional estates.
• Our clients can be confident in the professional qualification, regulation and accountability of those responsible for advising and producing documentation.
• All our Spanish legal documentation includes at no extra charge, a professional translation into ‘real’ English (we only work with sworn translators, qualified and authorized by the Spanish Ministry of Foreign Affairs). It is obviously fundamental that the translation is completely accurate, to ensure that the testator fully understands what is being signed.
• We organise the whole Notarial process for our clients, providing our clients also with full guidance notes as to the signature process, as well as helpline advice, any time. So, the whole process is extremely straightforward and stress-free for our clients.
• Our proven track record of working alongside our extensive network of Notaries throughout Spain, ensures efficiency of process and confidence and convenience for the client.
• As our priority is to work with Notaries with an in-house bilingual facility, clients do not have to pay extra (as can otherwise commonly the case) for interpretation services at the signature appointment.
• All documentation is discussed and agreed at the client’s pace, to ensure that everything is carefully considered and thought through before documentation is finalized and ready for signature.
• From our extensive and broad ranging experience of Spanish probate cases, clients can be confident that all documentation is designed to ensure efficiency and ease of Notarial/ Registry acceptance in the event of Spanish probate.
• As we offer a full range of Spanish estate planning tools (without being tied or committed to any single product or process), clients can be confident of a truly independent and unbiased approach to Spanish estate planning; to find the best solution in each individual case.

Will Spain follow Cyprus and tax bank deposits?

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:16:20

March 17th, 2013

The EU bailout conditions for Cyprus have sent shockwaves throughout Europe and beyond. Indeed, anybody with bank accounts in what are perceived to be the weaker European countries should review carefully where their funds are held; and assess the risk of exposure to bank insolvency and taxation.

We are certainly not subscribing to the knee-jerk reaction of many-being immediately to transfer all funds out of Spanish banks (save for the minimal amount to cover property outgoings and day to day requirements). The official line remains that Spain does not require the form of bailout which Cyprus has sought; and for which the draconian conditions have been imposed.

Indeed, it would be reckless in the extreme to recommend a run on the Spanish banks, as the consequences would be disastrous. We would hope therefore, that an urgent assurance is given by the Spanish Government as to Spain’s position; and also that a categorical assurance is given that no such levy will in any circumstances be imposed on Spanish bank accounts.

Failing the immediate provision of those assurances, irrespective of calls for caution to avoid dramatic liquidity problems for Spanish banks, it is worrying but perhaps inevitable, that a significant outflow of funds from Spanish banks will now be seen.

Aside from this latest development, many of our clients have also expressed concerns about what they are reading in the Press about the security of their savings in some of the Spanish banks.

Also, although there is a capped Spanish Government guarantee of funds deposited with Spanish banks, many are expressing concerns as to:

· the limit of the Spanish Government guarantee;
· the ability of the Spanish Government to honour the guarantee in the event of the insolvency of a Spanish bank;
· how long it would take for the Spanish Government to honour the guarantee;
and finally,
· the fact that many Spanish savings products are not covered by the Spanish Government Guarantee.

Obviously each individual’s circumstances and banking arrangements are unique, so it is impossible to provide ‘standard’ advice on the issue; and to attempt to do so could be misleading.

But we do encourage those with savings in Spanish banks to take this opportunity review their arrangements; and take such action (or take no action) as they conclude to be prudent in their own circumstances.

In terms of cash holdings being returned to other countries, if conversion to Sterling (or another currency) is required, there can be significant variances in the rates given between banks and the best specialist Foreign Exchange (FX) brokers. So, there can be a very substantial hidden cost in this process or repatriation of funds for individuals who do not give the matter careful thought and attention.

We are able to refer our clients to a leading specialist FX broker, so that we can provide the required certification to have an FX facility set up in a matter of minutes. This ensures that the clients we introduce have a fast, secure and top quality FX service; saving substantial sums on each and every FX transaction. The service is available for all major currencies.

We will be happy to provide further details on request

Am I forced to leave my Spanish house to my children under Spanish Law?

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:11:06

March 11th, 2013

For English nationals with property in Spain, in the majority of cases we deal with, the answer to this question is: no. Most English nationals are not subject to the Spanish law of succession (which would otherwise require parents to leave specified proportions of their estates to their children).

However, individual circumstances have individual legal consequences. So, this is a matter which has to be considered carefully in each client case in dealing with Spanish Wills and estate planning- both from the Spanish and UK legal perspectives. This ensures that correct legal advice is given; and appropriate and secure legal documentation is signed.

To have clear, correct and individual advice on this point, helps to avoid anxiety and uncertainty when it comes to Spanish estate succession.

How can I be confident about professional standards and expertise in Spanish legal services?

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:08:34

February 22nd, 2013

Back in 2011, a widely publicised BBC television programme, Panorama, highlighted concerns about the levels of professionalism and regulation of will writing and probate services under English law. Following that, a major regulatory review was undertaken in the UK, which concluded with much stricter regulatory controls. So, effective consumer protection in the UK for this area of legal services is now firmly established.

It is equally important (if not, even more so) when choosing your Spanish legal adviser, that you make the same enquiries of your Spanish legal adviser, as you would make of professional advisers in your own country.

Due to the professional background of our team (see “Our Team“), these are matters which have always been extremely important to us.

Our professional body in the UK is The Society of Will Writers and Estate Planning Practitioners ( Also, the Spanish lawyers handling our Spanish legal cases are fully qualified and highly experienced in Spanish legal matters. They are accountable to; regulated by; and professionally insured through their own professional body in Spain (the Colegio de Abogados).

In addition to this, every single Spanish legal document we provide for execution in Spain is specifically approved by an authorising Notary- and in the case of Wills, also accepted by the Central Wills Registry in Madrid. As such, the level of accountability and professional protection afforded to our clients is second to none.

It is essential if you are not a Spanish national, but have assets in Spain, that the legal advice you receive is from legal professionals, who are appropriately qualified and experienced in Spain. But equally importantly, your Spanish legal professionals must also have the necessary qualification and experience of such matters in your country of origin. Otherwise, it is impossible for you to be confident that your legal position and responsibilities in Spain are correctly “dovetailed” with your legal position and responsibilities in your country of origin. Getting it wrong by not having proper professional advice could end up being very costly for you and your family.

Also, it is important to note that before confirming instructions in any Spanish legal matter, you must be certain that you are completely clear about all applicable charges and costs and how they are calculated; and further, you should ensure that any client monies will be securely held on your behalf, in a designated client account.

We are more than happy to give our clients the comfort they need on all these matters, as we are dedicated professionals, committed to 100% client security and satisfaction.

Professional Conduct Risks in Estate Planning Cases with Spanish Assets

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:02:14

Professional Conduct Risks in Estate Planning Cases with Spanish Assets

November 29th, 2016

The existence of Spanish assets in cases handled by UK practitioners can give rise to specific considerations, which can be professionally risky to disregard. A few of the key stages requiring particular care are as follows:

Spanish Property Acquisition

Estate Planning assessment and advice can be critically important at the point of Spanish property acquisition. It has to be borne in mind, that in the event of subsequent inheritance, there can be significant exposure to Spanish Succession Tax- even potentially between spouses. Lifetime changes of ownership of Spanish properties can be extremely costly to transact, so it is important to have matters structured correctly- and tax efficiently- from the outset.

It is fundamentally important that, prior to completing the purchase of a Spanish property, the proposed ownership structure is very carefully thought through- and the future succession route (and fiscal consequences) are factored into the purchase process. Otherwise, unnecessary/ avoidable fiscal exposure can arise.

Fiscal Compliance

Owners of Spanish properties (both those who are resident in Spain; and those who are not resident in Spain) have a series of fiscal obligations in Spain, which must be performed correctly and promptly, otherwise there can be significant repercussions in terms of exposure to escalated costs/ Spanish fiscal liability. It is important that estate planning advisers in cases where there are Spanish assets are aware of these responsibilities, in order to provide correct cross-border advice.

In many cases, a Spanish property owner remains responsible for fiscal compliance obligations in Spain until the end of the calendar year following the year of sale of a Spanish property. It cannot therefore be assumed that the completion of a purchase or a sale of a Spanish property concludes matters for the professional adviser.


Many people- particularly in their retirement- dream of a move to a warmer climate and the more relaxed- and economical- lifestyle Spain seemingly offers. However, making a full time move to Spain; and becoming an official Spanish resident, can cause specific complications in the fiscal affairs and liabilities of non-Spanish nationals. Also, for their families in the event of inheritance.

Any Estate Planning advisers involved in the context of their clients considering moving to Spain, need to ensure that the clients have a full understanding of the fiscal consequences for them and their family of taking Spanish residency- both in Spain and in their home jurisdiction. In many cases, the fiscal consequences (and some of them being fairly oblique to the uninitiated), are so far reaching that it is better to remain UK resident whilst enjoying lengthy stays in Spain- to the extent legally permitted, without triggering Spanish residency.

Spanish Wills and Estate Planning

Many UK Estate Planning professionals seemingly continue to be unaware of the risks of endeavouring to deal with Spanish assets in English Wills- rather than following the correct convention of advising that separate Spanish Wills should be made in respect of Spanish assets.

It continues to surprise us in taking on Spanish probate cases, how many UK practitioners endeavour to ‘muddle through’- seeking to deal with Spanish assets in English Wills. This gives rise (in the event of probate) to additional procedural hurdles in the Spanish process. Furthermore, it is typical in these cases, that Spanish assets are implicitly (or even explicitly) placed in Trust structures, which are incompatible with Spanish law.

In any event, the risks of delays, complications and additional costs in the legal probate process in Spain where there is no Spanish Will have been widely covered in articles in the professional Press over the years. But there are also situations in which the absence of a separate Spanish Will can have the effect of an increased Spanish Succession Tax liability. Hence, UK professionals need to be completely clear and accurate in their advice as to Will structuring, to avoid the risk of exposing their clients to unnecessary/ avoidable fiscal exposure and costs.

In principle, post-death variations to Wills are not permitted under Spanish law. So, that sometimes-useful fiscal device in the UK does not exist as a facility in respect of Spanish assets. However, UK testators (for example) with Spanish assets are entitled to include in their Spanish Wills (along with a properly drafted choice of law clause), a certain amount of flexibility in the succession route, enabling their beneficiaries to elect for the most tax efficient succession route to be applied at the time.

So, this enables post- death up to date fiscal advice to be obtained, in order to select the most expedient succession route/ structure. But a Will writer who does not take into account this highly valuable facility which is available to non-Spanish owners of Spanish assets, can leave the testator’s beneficiaries exposed to a significantly greater fiscal liability than might otherwise be the case, with correct advice and a thorough approach to Spanish Will writing.


In the Spanish probate process, it is essential that the practitioner engaged to deal with the Spanish Estate is professionally regulated, PI covered; and specifically experienced in the conduct of Spanish probate cases for the estates of non- Spanish individuals. This type of case is significantly different to a ‘regular’ Spanish probate case; and if the case is not conducted absolutely correctly, this can not only cause problems in the Spanish process, but can also impact adversely on the home jurisdiction probate case.

The practitioner handling the home jurisdiction probate case and the Spanish process need to liaise closely- especially on fiscal issues. Particular regard must be had to: the succession route of the Spanish assets (and evaluation of the fiscal consequences of any discretion as to the succession route); how asset values are assessed and declared; and the availability of any deductions/ credits under dual jurisdiction taxation treaties.

A failure by a UK practitioner (for example), to agree to the appointment of an appropriately qualified and experienced practitioner in Spain; or to liaise closely with the appointed Spanish practitioner to achieve the best result overall for the estate, can leave the Estate/ beneficiaries financially disadvantaged.

The above is a non-exhaustive list of situations requiring particular care and attention.

The Legal 4 Spain team is always available to provide preliminary advice on a no-obligation basis in relation to Inheritance and Estate Planning cases where there are Spanish assets.

Spanish Inheritance- Applicable Succession Law and Brexit

Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:01:08

January 3rd, 2017


Spanish law provides for ‘forced heirship’, which is completely different to English law, for example, where there is freedom as to appointment of beneficiaries.

The issue of cross-border inheritance- where a deceased person has assets in different countries, in principle subject to different/ conflicting laws as to succession- has traditionally been fairly complex and potentially confusing.

The EU Regulation 650/2012 (‘Brussels IV’) simplified matters where the deceased died after 17th August 2015, owning properties in different EU member states.

Habitual Residence

Prior to Brussels IV, the deceased’s nationality and location and type of assets were contributory factors in determining the applicable law of succession relating to EU assets.

But for deaths after 17th August 2015, the default succession law relating to EU assets will be determined by the deceased’s ‘habitual residence’ at the time of death.

Choice of Law

Brussels IV also provided for certainty- that an election can be made in a Will as to which succession law applies. This can override ‘habitual residence’ in applicable cases, where that is advantageous.

This is particularly important, for example, for a UK national who is resident in Spain. If no election is made as to applicable succession law, then the ‘habitual residence’ test would mean that Spanish succession law would apply to that individual’s estate. However, by making a Will which includes a valid election of English succession law, this overcomes the potential problem.

European Certificate of Succession

Brussels IV also provided for European Certificates of Succession, to simplify probate in cross-border estates. But this does not assist in the case of a UK national who is habitually resident in the UK, as the UK’s opt-out from Brussels IV means that the UK cannot issue a European Certificate of Succession.

For this reason, the probate procedures for most UK nationals who own Spanish properties are not changed by Brussels IV.


It has always been recommended for a UK national (for example), with a property in Spain, to make a separate Spanish Will to deal with the Spanish assets. This has always assisted in avoiding unnecessary complications, costs and delays in the Spanish probate process. Brussels IV has not changed this. Furthermore, it is necessary in many cases, to ensure that a choice of law election is included in the Will, to be certain that UK succession law will apply.


As noted above, for the estates of deceased UK nationals with assets in the UK and Spain, there remain two separate legal succession processes- one in the UK; and one in Spain. But where the deceased leaves up to date and valid Wills in the UK and Spain respectively, the legal processes can be conducted simultaneously, and the situation need not be complex, lengthy, or costly.


Brussels IV has not directly affected the pre-existing position regarding succession taxation. There can be succession tax liability in each jurisdiction in which the deceased owned assets (subject to double taxation treaties/ relief). However, in making Wills and considering choice of applicable succession law, careful consideration must be given to succession tax exposure; to ensure that legal and legitimate opportunities to reduce succession taxation are not lost.


The precise effect of Brexit on the application of Brussels IV to UK nationals will depend on the negotiations and final agreements between the UK and the remaining EU member states. But although Brussels IV is an EU Regulation, it does also apply to third party countries. So in principle, a UK national’s election to apply UK succession law to their Spanish assets should remain valid following Brexit.

Also, the risk under English law that (for UK nationals with Spanish properties), Spanish succession law should apply to their Spanish assets, is contradicted by Spanish law, which provides for the application of the National Law of the deceased person- if so elected in a Will.

So in any event, to be certain, UK nationals with Spanish properties are very strongly advised to make a separate Spanish Will dealing with their Spanish assets; and making a clear election for their succession law of choice to apply to their Spanish assets.

The Legal 4 Spain team is always available to provide preliminary advice on a no- obligation basis, in relation to Wills of Spanish assets and Spanish estate planning generally.