Life after Brexit: why is so important to have a Spanish will?
Hundreds of thousands of Britons have decided to call Spain home. Many more own property in Spain. With the uncertainty surrounding the changes that come with Brexit, it is important to understand the rules that apply to you and how best to draft a will to ensure that your wishes are respected.
The rules of inheritance in the EU are governed by the EU Succession Regulations, also known as Brussels IV. This applies to you whether you have Spanish nationality, property in Spain or your primary residence in Spain. Brussels IV says that the law that will apply to the estate you leave for your heirs will, by default, be the law of the country where you are a resident. This rule is overridden, however, if you state in your will that you wish for the law of your home country to apply.
Why is this important? Whereas under English law you can freely distribute your estate to whomever you like, under Spanish law there are restrictions. 50% of all jointly owned property must pass to your spouse, with the other half divided into three parts. The first of these three is equally distributed among your surviving children, the second must be given to your children, but may be distributed as you wish, and the third may be disposed of freely.
So, if your main residence is in Spain but you do not want to be made to follow Spanish inheritance laws, you should make clear in your will that you want English law to apply. This can all be done in an English will. Just to clarify, English wills are still just as valid in Spain as they were before Brexit. This is because the United Kingdom (alongside Ireland and Denmark) opted out of the Brussels IV regulation, so English wills were already treated as external to the EU.
That said, it is still a very good idea, if you have a property in Spain, to write a separate Spanish will in order to avoid various time-consuming obstacles for your heirs. To begin with, a Spanish will would not interfere with an English will, it can simply be complementary, only applying to your possessions in Spain. What´s more, in the absence of a Spanish will, foreign wills relating to property within Spain must be legalized in front of a Spanish consul and translated into Spanish before they can be executed. You may also be required to obtain an official copy of a Grant of Probate from the UK. This can end up being a long and expensive bureaucratic exercise. Additionally, if the inheritance process lasts longer than six months, this may result in fines and penalties, increasing the overall cost.
It is therefore advisable to consult a lawyer in order to ensure that you have the greatest control over whom you give your estate to and to make the transition process as simple and easy as possible for your loved ones.