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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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BRITS IN EUROPE

Brits in Europe won right to vote for life in UK but questions remain

After years of campaigns and promises British citizens living abroad finally won the lifelong right to vote in UK general elections in April 2022. But campaigners say more needs to be done to allow all those Britons abroad to be able cast their votes easily.

Brits in Europe won right to vote for life in UK but questions remain

What’s in the law?

The Elections Act 2022 introduced several changes to the current legislation on electoral participation. Among these, it removed the rule by which British citizens lose their voting rights in the UK if they have lived abroad for more than 15 years

The new rules also abolished the requirement to have been previously registered in the UK electoral roll to become an overseas voter. In addition, the registration in the electoral roll will now last up to three years instead of only one year.

It is estimated that these changes could increase the number of overseas voter registrations by some 3 million. But the way new measures will be applied in practice is still to be defined.

READ ALSO: ‘Mixed feelings’ – British citizens in Europe finally get right to vote for life

Defining the practicalities

Under the new law, Britons living abroad will have to register to vote in the last place they were registered in the UK. This means that people who have never lived in the UK will be ineligible to vote, regardless of how long they have been overseas, while those who left when they were children will be able to use a parent or guardian’s address.

But given that the UK does not require residents to register with local councils, how to prove previous UK residence? “Typical documents accepted as a proof of residence are Council tax or utilities bills, but not everyone will have them or will have kept them in an international move,” says Fiona Godfrey, co-founder of the British in Europe coalition.

Ballot papers are pictured in stacks in a count centre as part of the 2019 UK general election. (Photo by ANDY BUCHANAN / AFP)

Other questions concern how people will effectively cast their ballot. UK citizens overseas will be able to vote by post or by proxy or in person at their polling station if they are in the UK at the time of the election. However, few people are likely to travel to the UK for an election and in the past there have problems and delays with postal voting.

The Electoral Commission has recommended that overseas electors appoint a proxy to vote on their behalf. But who could that be for people who have been away from their constituency for a long time?

New secondary legislation will have to answer these questions, defining how to be included in the electoral roll and how to exercise the voting right in practice.

According to British in Europe, the government should present draft legislation in the first half of the year so that the parliament can adopt it before summer and registrations of overseas voters can start in the autumn.

British in Europe survey

British in Europe are currently running a survey to understand the difficulties UK citizens abroad may face in the registration and voting process, as well as their intention to participate in elections.

The survey asks for instance which documents people can access to prove their previous residence in the UK, what problems they had voting in the past, and if and how they plan to vote in the future.

“We need to get an up-to-date picture of British citizens living around the world and have information to make recommendations to the government, as it prepares secondary legislation,” Godfrey said. “If millions of people will exercise their voting rights, there will be consequences for council registration offices, post office and authorities that will manage the process, among other things” she argued.

The right to vote concerns only UK parliamentary elections and national referendums, not elections in the devolved administrations of Scotland, Wales and Northern Ireland, or at local level.

The survey is open to UK citizens living anywhere in the world and is available at this link.

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