The Spanish notarial system provides more security for those who make a valid will. This is because there is a Central Wills Registry where each notarial will is registered by the notary. The original will is always kept on the Protocol (archive) of the notary where you sign the will. The information at the Central Wills Registry will be the date and place where you made the will; your full name and date of birth and the names of your parents will assist with identifying you.
A valid English will must be witnessed by two witnesses who are physically present when you sign. These witnesses should not stand to benefit from your will or be family members. However although wills can be registered in England there is no obligation to do so and most wills are kept at home or with the local solicitor in England who prepared them for you.
Leaving Spanish assets in a will
It is always advisable to execute a valid Spanish will before a notary if you own Spanish assets. The reason this is important is that property does not generally pass to your surviving spouse automatically in Spain. In the UK you can generally notify the Land Registry, the banks etc to transfer property into your sole name and in some cases where the estate is not of a high value no other formalities are required. If they are an application can be made for Letters of administration on intestacy.
This is very different in Spain as the property passes independently to your appointed heirs and there is a procedure required to prove who should receive. Spanish law applies the law of your nationality to your estate. Therefore if you die leaving Spanish assets and have not made a valid will in either country your heirs need to prove firstly the law that should be applied on intestacy and secondly that they are entitled to inherit. This applies to your spouse even though you may be joint owners of the assets.
For some time we have been advising British nationals in Spain that it is wise to state the law you wish to be applied to your estate. While it would be difficult to overturn the application of your national law to your estate in wills made with this clause there will be added certainty in 2014. This is when the European legislation changes to state that you can elect the law to be applied to your succession and that this will be binding.
The important thing to remember is that prevention is not only better than cure in this situation it is also less costly than cure.
For more information on Wills & Inheritance or any other legal matter, please contact Jon Sutton at De Cotta Law on +34 951 315 161