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Why Brits in Spain should consider drafting a will now more than ever

Changes to Spain’s Legal Code could mean UK citizens residing in Spain could leave their loved ones with complicated and unfavourable litigation if they fail to draft a will before they die.

Why Brits in Spain should consider drafting a will now more than ever
Photo: AFP

The matter has been brought to light by Alfonso Ybarra Bores, professor of International Private Law at Seville’s Pablo de Olavide University, at a presentation last November backed by Andalusia’s College of Notaries.

Ybarra analysed the inheritance laws for British citizens residing in Spain, in particular the different problems that can arise when they die without making a will.

“The British system offers ample freedom when it comes to drafting a will,” Ybarra said during the presentation.

“In principle, an inheritance can be left to whoever is deemed suitable, there are no laws such as those of Spain’s Legal Code that guarantee a part of the deceased’s assets to children or relatives.”

The international law professor spoke about the most recent rulings by Spain’s General Directorate of Legal Security and Public Faith and what they could mean for the inheritance of British people in Spain.

Ybarra pointed out how the big differences between the Spanish and British inheritance systems could have been largely minimised if European Regulation 650/2012 were applicable in the United Kingdom, but the UK has opted out of this agreement.

This generates different complicated situations at a legal level, as although the Regulation is not applicable in the United Kingdom, it does affect British residents in Spain.

“This refers to the section of Spain’s Civil Code that deals with inheritances, known as the ‘legítimas’,” tax lawyer Alejandro del Campo, partner at DMS Consulting in Mallorca, told The Local.

“It’s very important that British residents in Spain plan their inheritances because if they don’t draft a UK will and they die while being residents in Spain, the EU’s Succession Regulation would apply and their inheritance would be governed by the regional Spanish laws in which they have their main address”.

Each of Spain’s 17 autonomous communities has the powers to decide its own inheritance tax and conditions and change them on a regular basis, but the national standard is that a third of someone’s inheritance must go to their family heirs.

“The resolutions of the General Directorate are calling into question UK citizens’ partial or ‘simpliciter’ wills (limited to the property of the deceased in a State), ie. wills that are drafted in Spain by British residents to regulate only the inheritance of their assets here, and where it is chosen that the succession is regulated by British law,” Ybarra explained.

“Personally, I consider them a very useful tool and an alternative that has helped a lot of Britons to solve problems vis-à-vis this type of inheritance.

“Their annulment could take us back to the last century”, Ybarra concluded.

READ ALSO: 

‘It’s absurd’ – How Britons who let out properties in Spain could see taxes triple after Brexit

The Seville-based academic also highlighted how many of the 300,000 plus Britons in Spain who are officially registered as residents are married and have children and assets in the UK.

There are also many UK citizens who have started new lives in Spain, marrying, having children and acquiring new assets in Spain.

“It is always advisable to draft a will, but in these cases even more so,” the law professor stressed.

“In order to avoid that the heir/s encounter unexpected and unpleasant situations, which end in drawn out litigation, it is advisable to go to a specialised professional, knowledgeable and trained in the matter.

“In this sense, a notary is the professional who can best advise you, in order to carry out appropriate inheritance planning and to make it clear which set of laws should be applied to the inheritance, whether Spanish or British, tailoring it to each case.” 

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BREXIT

Britons investigated for using fake documents to stay in Spain after Brexit

Spanish national police are investigating four British citizens who allegedly forged padrón documents in order to gain residency status in Spain after Brexit. One of them has been arrested in the Canary island of Tenerife.

Britons investigated for using fake documents to stay in Spain after Brexit

Spanish police investigators, through the Immigration Office of Santa Cruz de Tenerife, have discovered the possible existence of fraud in some post-Brexit residence applications.

After carrying out the necessary checks, they found that at least four residency application requests had been made using false documents which claimed their registration at their local town halls (padrón) were prior to Brexit coming into force.

British citizens wanting to apply for residency after Brexit and be protected under the Withdrawal Agreement (WA) have to prove they were living in Spain before the end of 2020 through documents such as their padrón certificate or private medical insurance. 

READ ALSO: 16 things you should know about Spain’s padrón town hall registration

The four British nationals in question are based in the southern part of the Canary Island of Tenerife and one of them, who was on the island at the time of investigation, has been arrested. The investigation is ongoing and new arrests haven’t been ruled out. 

This is not the first time that fake applications and falsified documents have been used by British citizens to try and gain Spanish residency after Brexit.

Having WA protected status makes the residency application simpler and grants more rights than for Brits applying after Brexit as non-EU nationals, as they don’t have to prove a large amount of savings and they can apply for jobs in the same way as EU nationals, among many other advantages.  

In November 2021, the UK Embassy warned UK Nationals against submitting fraudulent residency applications – either directly or through a third party.

“They are particularly on the alert for forged healthcare insurance, padrón certificates and lease contracts, as well as people falsely claiming student status,” the embassy wrote on their Facebook page.

There were also reports of fraudulent gestores (similar to lawyers) in Spain targeting non-EU citizens ‘to help’ with residence applications.

Since Brexit came into force in 2021, the main reasons why UK nationals’ residency applications have been rejected have come as a result of them not ‘regularising’ their situation in Spain, in other words registering at the town hall or immigration office, as well not being able to prove that they were living in the country before the end of 2020 when the UK left the EU.  

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