Free Testamentary Disposition for UK Citizens: Only if You Own Property in the UK
It has been widely believed that British citizens who own property in Spain will invariably be subject to UK law, which determines freedom of disposition of assets, as opposed to the more restrictive Spanish inheritance law where children will get 2/3 of the estate and the spouse the life interest of one third (and who may not be the preferred choice of the testator/testatrix!).
The reason for this is that under Article 9.8 of the preliminary title to the Spanish Civil Code, succession to all property, whether movable or immovable and wherever situated is determined by the law of the deceased’s nationality, in our case, English law, which takes relevance but surprisingly, it conversely stipulates that for property located abroad it will be the laws where the property is located which are to be applied. And in Spain forcible inheritors will almost always challenge a will if they don’t receive what they are supposed to get according the Spanish Civil Code, unless of course there are more debts than assets!
The above legal quarrel between both legal systems is now resolved so that if a British testator dies in Spain and:
- has moveable assets and property only in Spain then Spanish law applies.
- has property in the UK and Spain then UK law applies.
- has movable assets in Spain only then Uk law applies.
- has property in Spain and assets in the UK (but not property), then Spanish law applies.
It normally happens that if no inheritor challenges the application of UK law, which is normally typed into the will as the governing law, it will apply regardless of the above.
Free Testamentary Disposition for UK Citizens
I would be grateful if you could answer the following question.
A relative died recently in Spain. He had lived in Spain for many years, and owned property in Spain.
As far as we know he did not have a Spanish Will. He had an English will, which does not include his Spanish home.
He owned a business in England, which included business premises, but he did not own a residential property in England.
He also part owned property in Gibraltar.
Could you please tell me if it is likely that Spanish or English Law would apply?
Many thanks
Hello,
In principle, UK law applies to the testamentery disposition, unless someone wishes to challenge it. In that case this person will have to go to Court and demonstrate that it is Spanish law that will apply, in correlation with what the Supreme Court says. If the Spanish property has been totally left out then the inheritors will have file an intestacy procedure, in Spain or in the UK.
If nobody has the intention of challenging it then UK laws will apply to this.
Can you indicate what is the current situation with the inheritors?
B. regards
Antonio
Thank you for your reply concerning testamentary disposition.
The deceased is my ex-husband. He is the father of my two children. He remarried and had another two children. Despite requests to his wife and his solicitor in England my two daughters have not yet seen his will. They have, however, been told that it was an old uk will, before he went to Spain. They believe that they were left shares in his business. However, the business he owned at that time no longer exists. It was replaced by another business. Without seeing the will it is difficult to know if they will inherit anything from his estate in UK.
My daughters have been told that there is no Spanish Will. It would be very unfair if they were not going to inherit anything from a substantial estate both in UK and Spain. When he made UK will. he only had a house in UK, which they believe he left to his wife, and business that no longer exists. My daughters only have very limited funds to challenge the will.
We are concerned that if solicitor and executor have already applied for probate in England, will it then be too late to challenge the will? Regards
Dear Jodie,
In order to establish if Spanish law is applicable it is vital that your ex-husband had no property in the UK as if this is the case UK law will be applicable and Spanish forcible inheritors´ rights would not be non-opposable or non-invokable, that is, you would not be able to use them.
This means that if he had left a UK will and yet he was a resident for tax purposes AND had no property in the UK, Spanish law would still apply. The problem is that according to your post he did have a UK property and this impedes effective application of Spanish laws.
Applying for probate in the UK would not affect their status, within certain time limits.
Dear Senor Flores
Thank you for your prompt reply. His house in England was sold when he moved to Spain. He still ownes a business in England, which includes business premises. As the business premises are owned by the limited company, would this mean that he does not own it himself? (He and his wife are shareholders). Would the premises, therefore, be considered to be his UK property or not? As mentioned previously, he also part owned an apartment in Gibraltar. Is this also classed as a UK property?
Your help is very much appreciated.
Regards
I’m not sure if this is the correct forum to post this question, but wondered if you could please offer advise on the following?
A UK citizen, recently passed away in Spain having lived there for the last 2 years.
He owned a property in Spain and had no assets in the UK.
There is a UK Will which excludes property in Spain and there is a Spanish Will covering the Spanish property.
There are creditors in the UK.
As there are no assets in the UK can the creditors claim on his estate from the Spanish Will (consisting solely of the Spanish property)?
Many thanks.
It is possible to file a case against the (deceased) debtor’s estate through the Courts. In Spanish legal terms unclaimed estate is known as ‘herencia yacente’ and implies that the suit is brought not against the inheritors, who may not wish to accept the inheritance if debts are superior to the equity, but to the assets which make up the estate.
If the creditors are to take action it is important to move quickly because if the property is left unattended for some time and the property running costs (community of owners´fee, mortgage if applicable, Council Estate Tax etc.) don´t get paid then the property will be auctioned off.
Can you help? I have been listed in the UK will of a late friend,as an executor,(together with another person in America).There is no UK property but there are bank accounts in UK & in the USA.The only property is in Spain,together with a bank account too.There is also a Spanish will.The UK will covers UK & USA and also any belongings, writings,copyright,royalties of her late husband,wherever in the world situated.The Spanish will states she wishes to be classed as domiciled in Uk & leaves her Spanish assets to her great niece and great nephew in equal part.They have not been in her life and appear to be resisting the UK bequests of her husband’s properties to a foundation in America,some of which are situated in Spain. How do I go about my duties as executor and how can I ensure her wishes were carried out? Do I need to register the death & probate in UK? Thankyou in advance.
Hello Tina,
In principle if the Spanish will stipulates that her great niece and great nephew are to inherit Spanish assets then, so long as there is no newer will disposing of the assets in a different (and incompatible) manner from that of the Spanish will you are obligated to ensure that her wishes are met.
You will now need to appoint lawyers in Spain to oversee the process and ensure that the property in Spain (and any other assets) are bequeathed in the manner the will envisages.
Probate in the UK is not required as a Spanish will was signed.
Regards
Please can you help me to inderstand if I am able to challenge my father’s will. He was an english national but lived in Spain. He had no english assets. He made a Spanish Will and left his spanish properties to my brother and his second wife. I was left out. Because he had no English assets will I be able to contest the Will. He lived and died in Elche. Death was this year. Thank you
Hello Lynn,
From the information you have supplied to me it appears that the case would tick all boxes for a succesful challenge in Court of the Spanish will, since your Dad did not have any assets (property) outside Spain, or at least in the Uk. This last point is important as it is the basis on which Spanish law on inheritance kicks in, and as far as you are concerned, the forcible inheritors rights over the estate that cannot be taken away from you.
Thank you for your advice which is so helpful. Can you please tell me the time limit, after a Will is read, for someone to contest the Will. Thanks again
Please could someone help me with the above query. Thanks
My father was a UK citizen and died in the UK but had a house in Spain, he had a Spanish will. What steps to I need to take in Spain? I am in the process of applying for Probate in the UK.
Hello Sam,
If your father had a Spanish will then you don’t need to go through Probate in Spain, but enforce it through a Notary Public. You will need a death certificate, details of the assets to be inherited and a few other minor documents the Notary will request for you.
The process of Grant of Probate in the UK is not an inconvenience to pursue acceptance of inheritance in Spain, so long as both are not contradictory.
Hello,
After the excellent advise that I have read I was wondering if someone would be able to help me?
My mum has recently passed away and has lived in Spain for about 4 years. She own a house in the UK with her husband (my step father) but the house in Spain was only in her name. I am completely unsure of what to do and my step father is really in not state to do anything. I would like to know what needs to be done with the house in Spain, who we need to see and how I go about this. There was no will either in Spain or in the UK>
Thank you.
Barbra,
Are you following any procedure for inheritance in the UK? If you do not have a will in the UK, nor in Spain, you should follow the an intestate procedure in either country, as your mum may have been a resident of Spain and in this case, the process could be conducted via a Spanish “declaracion de herederos”, for which you will require a certificate proving what the laws of England & Wales designate you as an inheritor, in the abscence of a will. You can also do this in the UK and then legalise the document in Spain.
I own property in UK and Spain and am a UK resident. I made a Spanish will in the 1980′s but I now want to change the beneficiary. I have been told that I MUST write a new Spanish will to cancel the original. I have read your advice above and it seems to me that my UK will can effectively deal with my wishes regarding my Spanish property. Is this so? Do I need a new Spanish will?
Thanks, David I.
Hello David,
You do have to have a new will, cancelling out the previous one. The reason to do this is that conflicting testaments may cause problems when enforcing them. With regards to your UK will, it certainly covers your wishes for after death, as it can be legalized for use in Spain. It will however cost you more since you will have to go through the probate procedures in the UK, and then have it translated and legalized for use in Spain.
Hi, I was woundering if you can help. My father bought a house in Spain and moved out in November 2009, and he passed away in June 2011. He left a spanish will leaving everything to his partner. My question is do you have to be a Spanish citizen for Spanish law to apply and if so do you have to live in Spain for a certain ammount of time before you gain citizenship or do you apply for it?
Thanks Bridget
Hello Bridget,
Inheritance rules are based on your nationality, which means that if you are British, then those laws will apply. There are certain exceptions that apply in respect of nationals of this country and their children´s rights, if the deceased was living in Spain and only had assets here: in this case, Spanish IH laws may apply and give you the right to claim up to 2/3 of the estate.
It is therefore the nationality of the deceased and not the inheritor that applies.
Dear Jeremy,
I am sorry to hear the news, my condolences to you and your family. With regards to the will, it would be still be valid in spite of the marriage and the named inheritors would be entitled to file a claim on the estate, as per the document.