I originally wrote this article for an old employer’s magazine, and it has since been reproduced in a few other places too.

So here it is again for our own members:

WHERE THERE¨S A WILL THERE¨S A WAY

Dying might be the last thing on your mind as you walk out of the notary as the proud owner of a new apartment, but if the very worst came to the worst, your property could end up being disposed of under Spanish law. Thankfully, this nightmare scenario is no more than just a bad dream providing you have a Will in place that Spanish law deems valid, because foreigners are then allowed to dispose of their Spanish assets according to their home country´s laws.

Of course, this Will needs to be valid in your home country too, which means that nothing can be initiated unless and until you have drawn up a valid UK Will in the first place. In essence, therefore, you need two Wills: a UK one which disposes of your assets according to your wishes, and a “Spanish will” as well, acting s a secondary legal instrument which legalizes the terms of its UK counterpart. As such, of course, the terms of the two wills must match!

A Spanish Will thus acts as a mechanism to ensure that your UK Will is executed within weeks rather than months, because there will be no requirement to wait for probate to be granted. You will also save a considerable amount in legal costs because the speedier legal framework will already be in place.

And remember, even if you don´t mind that things will just take many times as long and cost many times as much to sort out if you don´t have a Spanish Will, there could be other reasons to get it sorted out sooner rather than later. As we said above, if the very worst came to the worst, your property could end up being disposed of under Spanish law. And under Spanish law, surviving spouses can only retain half of assets acquired during a marriage! The rest must go to obligatory heirs – and a proportion must be divided equally between them; in other words, Spanish law does not allow children to be disinherited. Moreover, part of the children´s share cannot be freely disposed of until the spouse of the testator has also died.

This is, of course, nothing to worry about if you have drawn up a Spanish Will, which in turn means that you also have to have a UK Will drawn up as well. But don´t have nightmares if you haven´t “got around to it yet” – Spanish law is not automatically applied to foreigners´ estates. Under European law, UK law will apply even to your Spanish assets – except in the unlikely event that there is a dispute between those who are named as beneficiaries, in which case Spanish law will apply. In view of human nature, therefore, there is every good reason to get around to “settling your affairs” as quickly as humanly possible!

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Janet Anscombe Associates
The Tenerife Experts
for anyone living in or moving to Tenerife
Visit our website www.janetanscombe.com

thanks for that janet, by 12.05 tomorrow i'll have changed my will here to read the same as it will in tenerife. an unvaluable post.

Thanks Janet. We have the Spanish will but not the UK will. We have never bothered as our three daughters never, ever squabble and we only have the properties anyway. Now we are selling up in the UK and moving to Tenerife do we still need a UK will?

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A painting is never finished - it simply stops in interesting places. Paul Gardner

Will you have any assets left in the UK?

As a general principle, though, if you have heirs in the UK, then a UK Will cannot be wrong.

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Janet Anscombe Associates
The Tenerife Experts
for anyone living in or moving to Tenerife
Visit our website www.janetanscombe.com

Thanks Janet. We will get that sorted before we re-locate. We are in limbo at the moment whilst house is on the market - patience and then more patience.

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A painting is never finished - it simply stops in interesting places. Paul Gardner

Yes ... you will still be regarded as UK domiciled for at least 3 years after you leave the UK. And you have more freedom under British law in how you distribute your estate.

And I take it Ireland is the same?

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Holiday Rental Apartment in Royal Palm

Yes, Tom - systems are pretty much the same - except for the rates - we do so much better in Ireland at 20% versus 40% in the UK. There is a Double Taxation Agreement in place for both jurisdictions, so any tax paid in Spain is deducted from your Irish or UK liabilities.

Domicile of Origin is a hard thing to lose unless you really cut all ties with your place of birth. And ancedotal evidence points to many ex-pats returning to the UK later in life when they are ill - either hoping for NHS care or help from their children still residing there.

Can you have a Spanish will for Spanish assets, ans a seperate English will for English assets?

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As Janet has said in her excellent opening post, you should have two wills - the Spanish one will only mention your Spanish assets - your English one, the principal one, should mention all your assets and of course, as she points out, the instructions in both as to how you want to dispose of your Spanish assets must agree.

You are trying to ensure that English (or Irish) law will apply, for you have more freedom under Common Law as to how you dispose of your assets. The Civil Code followed in many continental countries (Spain, France, Italy etc) actually specifies the percentage of your estate that you must leave to your spouse, your children etc.