“THE EUROPEAN CERTIFICATE OF SUCCESSION AND THE IMPORTANCE OF MAKING A SPANISH WILL” (PART II)
First of all, I would like to wish you a prosperous New Year 2015!
A few months ago, I published an article called “ The importance of making a Spanish Will”. (for those who didn’t have the opportunity to read it, please find it below).
Since then, we’ve been receiving a lot of enquiries from new clients asking for further clarification about the European Certificate of Succession (from now own ECS).
Therefore, this new post is intended to supplement the information provided in our former article, in order to provide a quick but useful guide about the certificate and its implications for those residents or non-residents with assets in Spain.
In the first place, the new European regulation aims to adapt international private law provisions in the field of successions, based on the principle that Europeans citizens have the right to decide the law, which will apply to their succession.
This decision will be set out in a testament or Will.
Secondly, The ECS on the other hand, will basically recognize a person as heir. In Spain, this document will co-exist with the “declaration of heirs before a Notary”, (which currently applies under Spanish law).
Thirdly, In Spain, Notaries and judges (as impartial neutral public servants) will be the only competent to formalise the certificate.
Fourthly, The ECS will take effect in August 2015 and it will be subsequently valid before any Court or authority of any EU member States, allowing an heir to be recognized as such throughout the EU, as indicated before.
Finally, considering the significant number of e-mails received over the past few months regarding this important matter, for those who might still want to know more about the subject, we would like- if we may- to kindly recommend you reading PART I of this article, which for your convenience has been republish right below.
We hope this information is useful and should you have any additional question, please visit any of our two websites: www.ricorabogados.com or www.englishsolicitorinspain.com
Remember that you can also follow us in Facebook (https://www.facebook.com/ricorabogados), Linkdin and our google business page: (https://plus.google.com/u/0/b/101699650134478147323/101699650134478147323/posts)
Alternatively, you can also contact us by e-mail at email@example.com
Thank you very much for your attention and permanent support and we look forward to helping you!
Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practicing Spanish Solicitor
Article posted last April 2014:
“THE IMPORTANCE OF MAKING A SPANISH WILL (PART I)”
We would like to take this opportunity to inform you that a Regulation was passed in 2012 (REGULATION (EU) No 650/2012), allowing EU citizens to leave their Spanish property according to their own national law, instead of the law of their country of residence. It is required to make a Spanish Will in which you state that you wish to leave your property according to UK law and that the Will only applies to your Spanish assets.
This law will come into being in Spain in 2015, so all non-Spanish owners of properties in Spain (residents or non residents), should make a Spanish Will ASAP. In fact, having a property in Spain without making a Will can be a very risky and ultimately a costly decision for you and your legal heirs. Why?
Firstly, because without a Will, inheritance expenses can be prohibitively high (in Probate or Grant of letters of Administration’s costs, plus swore translations and compulsory legalization of documents, legal fees, etc)
Secondly, beneficiaries will face a lengthy and stressful Spanish legal process to claim their Spanish inheritance, whilst a standard inheritance procedure can just take around 3 months where the testator has made a Spanish Will.
Thirdly, because if someone dies without making his or her wishes clear in a Spanish Will, there is a possibility that the Spanish rules on intestacy might apply. Spanish intestate Law differs greatly from UK Inheritance Rules. Whereas the UK law permits individuals, within reason, to leave their assets to whom they choose, the Spanish law imposes strict rules as to inheritance by family members.
This is particularly appropriate in situations where there has been more than one marriage and several children from different marriages. According to the Spanish Rules of intestacy, all children (irrespective of the marriage), would have a preferential equal entitlement to claim their own share.
Therefore, if you plan to leave your Spanish property and assets to your heirs without wishing for them to suffer delay and escalating costs, then you ought to make a Will in Spain before you pass away.
Likewise, remember that when making several Wills in different jurisdictions, you can have for example an UK Will that might cover your UK interests and your Spanish Will that will cover only your Spanish interests. However, bear in mind that the Wills must be clear on which assets each Will pertains to cover as well as the appointed beneficiaries. Moreover, it is essential to mention clearly that the scope of the Spanish Will must include any present or future properties or assets, located in Spain only. Otherwise, the Wills could be accidentally invalidated and as a result, the testator’s actual wishes completely overridden.
On the other hand, we have detected an increasing number of people (usually family members) who contact us when they find out that their loved ones have passed away in Spain. Usually our clients are unaware of whether their parents or friends had a Spanish Will or not, and they usually come to our offices without having any clue also, about the number and specific location of the assets and properties owned by the testator.
This situation of uncertainty frequently leads to a lot of stress and delay, which finally results in escalating costs and significant inconvenience derived from having to request for a lot of additional certificates from the Spanish Authorities, which sometimes are not easy to obtain.
Subsequently, in order to prevent this unpleasant situation from happening, it is crucial that you carefully follow these very important final instructions very carefully and in case you might have any question or doubt, please do not hesitate to contact our Law Firm for further clarification or advice:
1º.- We strongly recommend that your Spanish Will is signed shortly after the property purchase and that you also update your Spanish Will, such that your current Will might no longer reflect your actual wishes or if your personal situation might have varied substantially, like for instance getting married, divorce, having new children, etc. Nevertheless, if you change your passport number or your address, you will not need to change the Will. However, it is strongly advisable that you contact us in order to give us your new personal details.
2º.- Nevertheless, keep all your paperwork in order and let also your beneficiaries know where it is kept. This includes local vehicle tax payments, property rates payments evidence, title deeds, mortgage contracts and details of joint bank accounts, etc.
To that end, we strongly advise that you also give your beneficiaries a copy of the Spanish will together with a comprehensive list or inventory of all your assets located in Spain.
3º.- Likewise, do not forget to provide your next of kin or beneficiaries, with our professional contact’s details, in order to remove huge delays (and increased tax liabilities later on), as well as to allow our firm to provide your beneficiaries an immediate friendly and effective help and advice, when most needed. Although the Spanish will is notarized and register at the Last Will Registry in Madrid,- for our client’s peace of mind,- a duly simple copy of the will is always safely and confidentially kept in secure storage in our premises together with an electronic copy of the will in PDF format, available to our clients at any time.
At Ricor Abogados&Solicitors, we recognise that owning a Spanish property can lead to uncertainty about your foreign obligations and we highly recommend that you plan well ahead before or immediately after you buy the property, to ensure you have both a foreign Will and a Spanish Will. As a Will is one of the most important documents you will sign in your lifetime, failing to take expert professional advice can result in mistakes and missed opportunities to save tax which, in the long run, can prove to be extremely costly and upsetting for families and loved ones.
In conclusion, it is essential that appropriate expert trusting professional advice is obtained in making sure that Spanish Wills are designed appropriately, to provide the basis for the most convenient, efficient and straightforward succession process possible in the circumstances. This means avoiding inconsistencies or conflicts in the use of language, (for instance, the consequences of a poor quality translation), the dangers of possible mutual incompatibility of Wills; and confusion over succession issues and taxation liability.
At Ricor Abogados&solicitors, we are proficient with the wording required. You just need provide us with your details, tell us to whom you wish to leave your property and we will draw up or update your Spanish Will for a very reduced and competitive fee.