Will you need to change your Will when new EU regulation comes into force next month?

Will you need to change your Will when new EU regulation comes into force next month?

Under a new EU regulation 650/2012, which comes into force on the 17th of next month, the Wills of foreigners who are fiscally resident in Spain need to contain a specific clause of preference about which national law should apply to their affairs when they die. Most British people will want British law to apply, not least because Spanish law restricts testators options to leave their assets as they wish. Wills drawn up fairly recently already have this clause in them because notaries have been aware of the coming requirement, but anyone with older Wills should ensure that they have new ones drawn up to be sure that British law will apply.

To be specific:

  • anyone making a new Will will find that this clause is automatically inserted;
  • anyone with an existing Will drawn up in the last year or so should check their Will to ensure that the clause was inserted;
  • anyone with an older Will should get a new one drawn up if they wish to ensure that British law applies to their Will in the event of their death.

Please note that this applies only to those who are resident for tax purposes in Spain. Non-residents do not need to be concerned about this because under the EU regulation the law applicable to their Wills will be that of the country in which they are resident – i.e. the UK.

27 Comments

  1. what is the difference, ? please so we can then decude which to choose. many thanks

  2. Author

    What is the difference between what? Do you have a Will? Are you a tax resident here? If the answer to both these is “yes” then your Will needs to have a clause in it saying that you wish British law to apply in the event of your death. If you have a Will and it is more than a year old, it probably does not have this Clause so you will need to renew. If it’s a newish Will, it may have the clause – probably does, you just need to check.

    Do you mean, though, the difference between Spanish and British law applying to your bequests? If so, Spanish law does not allow you to leave your property as you wish – you can’t leave it all to a spouse, for example, or even a cats’ home, but must leave it to children as well. UK law allows you to do whatever you like with your assets and make whatever provisions you like in your Will. In my experience, most British people leave everything to their wife or husband, and only then on to the children after the surviving spouse dies. This is not possible if Spanish law were to apply.

  3. As a matter of detail there is no British Law, there is English Law that applies to England & Wales, Scots Law for Scotland and Northern Ireland Law for Northern Ireland.

  4. Thank you Janet, the later part answers my question perfectly. Change of will needed as did mine about 10 years ago, and didnt realise that you have to leave part to your children.

  5. Under English law, maybe the others too, you don’t have to leave anything to children, you can leave it all to the dogs home if you want, but under Spanish law it’s different, you can’t leave it to your spouse, or the dogs home, your kids get a share. Which leads to situations where property lies abandoned cos the kids can’t agree what to do with it.

  6. What happens with an old will when there are no children?

  7. Author

    Under Spanish law pdee? it will be distributed as per your bequest but could, with no heirs, end up as state property.

  8. Thanks Janet, but still a bit confused. So , with no kids, it would all go to my wife, as per my wishes in the Spanish law will. But on her death the State could grab it, unless she makes a new will under English law with clearly defined beneficiaries. Am I correct?

  9. Author

    yes, it would go to her, but she needs to make a will herself for that reason.

  10. We will move to Tenerife permanently in Nov 2015 but will always rent and will never buy a property. We have opened a Spanish Bank account and understand that we will need to obtain a residency certificate when we move here. We will have no source of income as we do not intend working so will use capital. We understand that we will need Spanish Wills but would appreciate any advice on the cost of such Wills as the bank account is in joint names and we will have no other real assets. We would like the joint party to receive all of the bank funds on the first death and have no children. Also, are we required to complete Spanish tax returns even though we will have no income to declare as we do not start to draw our UK private pensions for at least 8 Years?

  11. Author

    A notary will charge around 75€ per Will, and obviously if you use someone to help you they will add a fee as well – this is likely to double the cost, sometimes more. It is not possible to give an exact cost of the notary because each Will is priced in part according to the numbers of sheets of notarized paper used: I have known Wills cost 65€ and 80€, but that’s your ballpark figure. Bear in mind that you should also have a UK Will in place before you come here.

    With regard to your tax affairs, you will need to be liable for tax and submit returns somewhere, and as always, I recommend consulting someone who is qualified in tax matters. If you look at my links page, you’ll see contact details for Diana McGowan and Paul Montague, both of whom I recommend.

  12. I am British, my husband is French. He has one grown up independent daughter, who lives in Australia. (I have no children.) We first moved to Spain 12 years ago and made our wills then. It appears that we should now re-do them. We are fiscally resident in Spain, which is where we have our only property. We do also have some savings in the UK/I of M. I would like British Law to apply to my will. Would this also be possible for my husband?

  13. Author

    I would think that it is French law that would apply to your husband’s Will, but this is something you would need to ask your lawyer.

  14. As always Janet thanks for excellent articles and updated information on all topics !
    My query is about Spanish Will and UK Will – do I need my UK will translated officially and if so by whom and at what approximate cost ?
    Equally so does my UK will then need a reference to the Spanish one ?
    Thank you in advance !

  15. Author

    No, your UK Will doesn’t need translating at all, let alone officially. As to reference to the Spanish one, what is important that the Wills recognize each other, specifically that neither revokes the other, and this is worth checking with whoever drew up your UK Will.

  16. Good Morning Janet. We made a Spanish Will about 20 years ago and have been considering changing it for some time. This seems like the perfect opportunity to do this. If we now change our English Will to include our Spanish property will this take precedence over the Spanish Will, i.e. does the Spanish Will become full and void? We are UK residents. Thank You for your help and advice.

  17. Author

    Hi Catherine, this is something you’ll need to check with whoever draws up your new/amended UK Will, I’m afraid. I would think that given the age of your Spanish Will, and given that you’re changing your UK WIll anyway, a new Spanish Will would be a good idea. What is important is that both Wills recognize each other, and specifically that neither revokes the other. This is something to check when drawing up any Will.

  18. Just appreciate the information and somewhere honest to make enquiries. We have an apartment in Puerto, had it for 11 years. We love Tenerife, the lifestyle and the Canarian people who are so caring.

  19. Author

    Thank you Jean, lovely to hear.

  20. Hi Janet , again thanks for earlier response !
    Will this new proposal on inheritance (Link) have any effect on UK owners property disposal /inheritance ?

  21. Author

    This concerns the announcement this week that the new socialist Canarian government will restore the 99% discount on inheritance tax in its budget for 2016. This is now effectively a direct commitment so it is very difficult to see how they could go back on it. BUT, as always, I have to say that until we see the budget itself we won’t know what the actual situation is. The proposed budget for next year should be available in October, so we will have to wait until then to get an idea. But if it is as we think, then as from next year, we will back in the position where virtually no inheritance tax is payable in the Canaries.

    As I explain HERE, in 2008 the Canarian government granted tax residents a 99.9% reduction in the tax rate for inheritance between close relatives (parents, children, spouses and family partners). This brought the Canaries into line with some other parts of Spain – inheritance tax has national rules but there are regional variations in application, and the granting of such discounts is one that the regions can make their own decisions on. Some areas offer it, others not. After just four years in operation here, the scheme was abolished in the Canaries in April 2012 because of the economic crisis.

    The word this time, however, is that to comply with anti-discrimination measures, the discount will be available to fiscal non-residents as well as residents. We will have to wait until at least October to get a good idea of what the actual plan is, but at least we know that there is a plan!

  22. My parents have no assets here just a Spanish bank account where their UK state pensions get paid into. Their will is drawn up in south Africa but suitable under English law, would they need to do anything here ?

  23. Author

    If they have assets in Spain they should have provision in Spain for their disposal. Having said that, if they just have a bank account, many would think it prudent just to ensure that close family members knew the online security details to get hold of the money …

  24. Author

    You just need to explain all that to the notary you go to, including the fact that you have a Will in the UK for assets outside of Spain. You don’t need any know the specific wording – each notary will use slightly different wording in any case but they all amount to the same thing – it is entirely standard now and all Wills contain the clause for British resident testators that UK law will apply to their bequests. Non-resident testators, of course, will have UK law apply automatically because they’re not resident in Spain. All the preparation will be done for you at the notary by the notary’s clerk. You will then get to check it and ask any questions and confirm any queries before going in to sign in front of the notary.

  25. Author

    Your English Will revokes all previous Wills. Your new Spanish one will automatically replace the previous one because it will be recorded as a later Will both in the notary where you sign and in the central Registry where all Wills are recorded. You will also be able expressly to exclude certain individuals – even if they have been explicitly named as heirs in a previous Will.

    All you need to do is make sure that the notary understands that you are non-resident in Spain and that UK law must apply, and that there is a UK Will in place. Clauses to this effect will then automatically be included. There is no specific wording that you need to know, or pass on to the notary: the notary will include the clauses in whatever wording s/he normally uses – different lawyers phrase things differently but they all mean the same thing.

    Please understand that notaries are highly qualified lawyers. As such, they will understand the requirements, and be able to answer any and all legal questions about Wills in Spain. Any questions about your English Will must, of course, be addressed to your lawyer in the UK.

  26. Hi Janet
    My husband and i have a joint mortgage in golf del sur chafiras san miguel de abona
    We want to do a spanish will leaving our property if anything happens to us to friends
    Just a normal will
    Could you tell me the cheapest way to get this done,
    Can i hand write my own and take it to the notary

    Kind regards Julie

  27. Author

    yes, you can go to any notary and you will find that they have a clerk dedicated to drawing up Wills and similar documents. They will require a copy of your passport and NIE, and your personal details and those of your friends, as well as the assets you have in Spain. The Will will then be drawn up and you will sign it in front of the notary. The cost varies but generally notaries charge around €65 per Will.

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