In the 3 jurisdictions of the UK, England & Wales, Northern Ireland and Scotland the role of an Executor – who often becomes a Trustee – is a personal obligation on the individual and a burdensome role. For this reason, most people either name their spouse or partner or a close family member. Where there are a lot of assets to distribute after the death and tax issues to resolve a lawyer, law firm or accountant is often appointed.
The role of an albacea appointed in a Spanish will – whilst literally translated as Executor – is quite different. An Executor in the UK gathers in the assets sometimes placing them, albeit temporarily, into his or her name. The assets must then be distributed by the Executor in accordance with the terms of the will.
In Spain the assets of the deceased are said to pass on death – mortis causa – to the beneficiaries. The albaceas role is therefore an administrative one defined by law but not involving some of the personal obligations borne by an English Executor. As a law firm drafting Spanish form wills for British and other nationals in Spain for more than 30 years we have seen some of the conflicts that can arise.
For example, we were once told by a professional adviser to a family that on the death of the testator the Executor had succeeded in registering Spanish property into his own name. Although acting in good faith, and intending to subsequently distribute the estate to the 2 children of the deceased, the Executor failed to realise that the Spanish tax authority would consider him to be the beneficiary of the estate. This resulted in a potential tax liability 4 to 5 times higher than that of the 2 children.
When dealing with a Spanish estate the albacea still needs a Spanish form Power of attorney from the beneficiaries if he or she is to deal with the Notary, Land Registries and bank. While this all sounds complex if the beneficiaries of your estate do not speak Spanish a Power of attorney can be executed in the UK without the need to travel to Spain.
Next month we will look at the different procedures and applicable law in Spanish and English wills. Please contact us on [email protected] or telephone on 952 527014 for a review of your particular circumstances.