The Importance of Drafting your Will before August 17/2015

Please note: There is nothing in the article below stating that the 17th is a cut off date for drafting new wills.

CAB Spain has received many enquiries about the drafting of wills in Spain, this has been in relation to the new EU regulations on Succession coming into force at midnight 16/08/2015. Expatriates have been experiencing varying problems when approaching notaries and even some lawyers when insisting that the clause stating that, you wish that your inheritance will be governed under the law of your birthplace or nationality should be included. As regards exact wording to us in a will, the suggestions are as above. Terms such as “I wish my succession to be governed by the law of England and Wales, Northern Ireland, Scotland, Dutch or German law and so on. Your lawyer or notary who have acquainted themselves with the new regulations, will guide you.

Some notaries it appears have even refused and even on one occasion we were told that a lawyer has said, “adding is would be a waste of time as it would be ignored anyway”.

CAB Spain have spoken about the cheaper option of going directly to the notaries but this in many cases is not having the outcome anticipated. Drafting a will is one of the most important duties that you will undertake. Do not leave this to chance, besides the very important clause, there is also to matter of the translation, (wills in Spain will be drafted in two languages, Spanish and your mother tongue). It should be ascertained and noted that you understood the translation.

The loss of a loved one is in itself a sad and distressing time for families, avoid the added complications of having to deal with the legalities of wills and taxes. Mistakes made cause so many complications are time consuming and expensive, such as wills having to go to probate and more serious still, is when as will is drawn up in such a way that it allows for the wishes to be contested or and be subject to the Spanish laws of succession. What is certain is that for those who do not add the clause, the notaries and registrars should execute the wills under Spanish law of succession.

As with all new regulations and laws, we will have to wait for the ‘dust to settle’ so as to speak. After the magic date, notaries and registrars will be using due diligence when accepting the validity of a will. It is only when a law has been put into practice that one can commence to see the possible loopholes and interpretations of law. Nothing can be guaranteed at this stage.

Taking all the above into consideration, it would be advisable to use caution when considering the preparation and the act of writing up this document. Contemplate the significance and value of the same.

It is generally recognised that conflicts will arise and especially in the matter of ‘habitual residency’ so it would be wise for those with statuses such as non domiciled or fiscal residents should consider using the safety umbrella and adding the clause relating to the law of their nationality. Consider that the EU body expect to revise the regulations in 2025.

CAB Spain is all about making savings for our members and friends and we continue to do so, in this case, it subject matter is too delicate and important to leave to chance. Take note that wills of habitual residents who do not have the clause mentioned above written into their wills, that the inheritance will be executed under Spanish law on succession.

For peace of mind, contact one of our English speaking lawyers with expertise in this field. Jaime@citizensadvice.org.es for a competent lawyer from the group in your area.

For further information about the clause and regulations, read the full article on the ‘New EU Regulations on Succession’ can be found on this LINK

Please follow this post for any important updates.

(please read the article, updates and Q&A)

Please note: The information provided is based upon our understanding of current legislation. It is not legal advice but is provided freely to enable you to be properly informed. We recommend that if you are considering taking action, you should seek professional advice.

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