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.