IMPORTANCE OF MAKING A FOREIGN WILL.

The majority of people appreciate the importance of making a will, but few seldom consider the important legal requirements associated with the ownership of property outside this country. To this end, it is strongly recommended that those who own property abroad make a Will in that country. This would serve to alleviate many of the delays and difficulties associated with the administration of the deceased's estate as the foreign part of the estate could be wound up in conjunction with the Irish estate.

In relation to property held in Spain, for example, a testator should make a Will in Spain. Whenever a Will is executed in the presence of a notary public in Spain he/she must pass details of that Will to the Central Registry in Madrid. A Will may also be executed in Ireland provided that it has been translated to Spanish and legalised by the Spanish Embassy. In order to pass your Spanish property to your heirs under Spanish law you will also require the testator's death certificate, which must be translated into Spanish using an interpreter appointed by the Spanish Embassy, as well as a certificate from the Central Registry acknowledging that the testator has in fact executed a Spanish Will in the presence of a notary public. Once all the requisite documents have been prepared and any tax paid the administration of the estate can commence and the transfer of the Spanish assets to the heirs of the deceased will take place.

If a Spanish Will is not made and the testator's Irish Will alone refers to the Spanish assets then the heirs will have to proceed through the Irish courts to obtain a grant of probate in respect of the foreign assets. Failure to make a Will or to refer to the Spanish assets will require intestacy proceedings in the Irish courts to declare that the heirs are legally entitled to the Spanish property. The grant of probate in turn will have to be translated to Spanish and legalised by the Spanish embassy. This, in turn, will lead to additional costs and a possibility of the imposition of a surcharge should the relevant taxes not be paid within six months of the deceased's death.

Under Article 9 of the Spanish Civil Code the nationality of the foreign owner will determine the law to be applied in relation to the inheritance of the Spanish assets. So, for example, an Irish person who owns property in Spain will have the inheritance of his assets governed under the Irish Succession Act 1965. It is also important to note, from a legal perspective, that a Spanish Will must be confined to Spanish assets. It must be specifically stated that the Spanish Will does not revoke any earlier Wills made by the testator which relates to assets held outside Spain.

This provision under Article 9 only applies where the deceased has made a Spanish Will. If the deceased has died without making a Will the Spanish rules of intestate succession will apply to govern the distribution of the property. In such circumstances the testator's freedom to dispose assets will be governed by Spanish Succession Law. Under Spanish succession law a parent is required to leave two-thirds of their estate directly to their children.

There is one final item which is well worth mentioning and that is that under Spanish Law a surviving spouse inherits 50% of the assets acquired by herself and her husband during their marriage. This is very true in the case of real estate. So where the names of both the spouses appear on the title deeds to property, each one will have half the ownership of the property. Given that the husband and wife will be treated as tennants in common it is very important that both spouses make a Spanish Will disposing of their part of the property, otherwise a situation may arise where that one part of the property may have to be distributed under the spanish rules of intestacy.

So, as you now know, if you are a non-resident Spanish property owner it is well advised to take the time to make a Spanish Will. This will relieve your heirs of any potential burdens and delays that may be associated with your estate, and, of course, will allow you the time and peace of mind to enjoy the benefits of your foreign property.