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.
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
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
(www.willwriters.com). 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
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
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.
Spanish Legal IssuesPosted by Andrew Thu, February 02, 2017 14:04:20
January 25th, 2013
This is often the first
question we are asked by clients who have been informed of a right to a Spanish
inheritance – but are leading a busy life elsewhere in the world. The short
answer is: ‘it is not necessary to be personally present in Spain, provided
that you have a reliable and trusted legal representative in Spain’.
We have agreed form
documentation for signature with Public Notaries throughout the UK and all 3
Spanish Consulate offices in the UK (and also with the Spanish Consulate
offices; and with public Notaries in numerous other countries), which enables
the legal procedures to be securely and professionally conducted in Spain on
behalf of our clients. This avoids the requirement for our clients to be
physically present in Spain.
This form of
representation also enables all other dealings with Spanish properties (eg.
sales and purchases) to be conducted for clients who are unable to be in Spain
for the duration of the transactional process.
Spanish Wills &Estate PlanningPosted by Andrew Thu, February 02, 2017 14:02:14
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:
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.
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
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
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.
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
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.
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.
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.