# Inheritance



## morlandg (Jun 8, 2008)

Does anyone know if the Forced Heirship rules apply to we expats in Spain?
The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate. 
I have had conflicting advice - 
1.these rules DO apply and 
2.others say that they only apply to spanish citizens - British inheritance laws and wills apply to british citizens.
A definitive answer to this vexed question would certainly be welcomed by me but maybe to a lot of other expats also!:confused2:


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## Pesky Wesky (May 10, 2009)

*inheritance laws*



morlandg said:


> Does anyone know if the Forced Heirship rules apply to we expats in Spain?
> The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
> I have had conflicting advice -
> 1.these rules DO apply and
> ...


 Hmmmm, interesting. I'm in the letter a category above, although I'm married to a Spaniard, but I'm not sure what *can only dispose of half of his/her assets by wills or donations *means. Does that mean that you *have to* leave 50% to your child and *can* leave the other 50% to others if you want to??


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## morlandg (Jun 8, 2008)

Pesky Wesky said:


> Hmmmm, interesting. I'm in the letter a category above, although I'm married to a Spaniard, but I'm not sure what *can only dispose of half of his/her assets by wills or donations *means. Does that mean that you *have to* leave 50% to your child and *can* leave the other 50% to others if you want to??


Yes - exactly!


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## Pesky Wesky (May 10, 2009)

morlandg said:


> Yes - exactly!


 
OK, now let's see what info others can give us


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## Xose (Dec 10, 2008)

morlandg said:


> Does anyone know if the Forced Heirship rules apply to we expats in Spain?
> The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
> I have had conflicting advice -
> 1.these rules DO apply and
> ...



Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense. 

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half. 

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose


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## morlandg (Jun 8, 2008)

Xose said:


> Hi Morland,
> My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).
> 
> The basics though, with no conflict are fairly straight forward... in my mind.
> ...


Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham


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## Bevdeforges (Nov 16, 2007)

morlandg said:


> Hi Xose
> Thanks for your reply. So Forced Heirship DOES apply......
> I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
> Graham


The term in French is "usufruit" which I've seen translated as "usufruct" - though I don't think I've ever seen that word used in English. It basically means that ownership is split into the thing itself, and the benefits of the thing - meaning that while the kids may "own" the house (or whatever), the surviving parent gets the use of the property (or any income from renting it out).

Normally, inheritance law of the country in which the decedent was living at the time of their death takes precedence. However, for real property (land and buildings), it's the inheritance law of the country in which the property is located. So, the house in Spain is subject to Spanish inheritance law, while the house in the UK passes according to UK law (or a UK will).
Cheers,
Bev


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## Pesky Wesky (May 10, 2009)

Xose said:


> Hi Morland,
> My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).
> 
> The basics though, with no conflict are fairly straight forward... in my mind.
> ...


Thanks for the info xose.
I wasn't thinking about disinheriting my daughter by the way  as I get on with her allright at the moment, and she's a teenager so we're doing pretty well!!


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## Hombre (Sep 10, 2009)

Bevdeforges said:


> The term in French is "usufruit" which I've seen translated as "usufruct" - though I don't think I've ever seen that word used in English. It basically means that ownership is split into the thing itself, and the benefits of the thing - meaning that while the kids may "own" the house (or whatever), the surviving parent gets the use of the property (or any income from renting it out).
> 
> Normally, inheritance law of the country in which the decedent was living at the time of their death takes precedence. However, for real property (land and buildings), it's the inheritance law of the country in which the property is located. So, the house in Spain is subject to Spanish inheritance law, while the house in the UK passes according to UK law (or a UK will).
> Cheers,
> Bev


Hmmmm... I took out a will many years ago in the UK. Basically, it was a very simple will, leaving any owned property and all cash assets to my wife...and in the event of her death, to be passed on to our children, divided equally. Somewhere down the line I lost the original, but I have a carbon copy. 2 years ago I took the copy to a notario. He read it carefully. I asked was this will valid in Spain or did I need to take out another one. His answer was an emphatic "no".
Absolutely no need as the copy was quite legal and would be legally binding in Spain.


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## Xose (Dec 10, 2008)

Hombre said:


> Hmmmm... I took out a will many years ago in the UK. Basically, it was a very simple will, leaving any owned property and all cash assets to my wife...and in the event of her death, to be passed on to our children, divided equally. Somewhere down the line I lost the original, but I have a carbon copy. 2 years ago I took the copy to a notario. He read it carefully. I asked was this will valid in Spain or did I need to take out another one. His answer was an emphatic "no".
> Absolutely no need as the copy was quite legal and would be legally binding in Spain.


Hola Hombre,
Just to make sure that he gave you the right advice. In your position I would pose him a pointed question, and see if the answer remains the same.

So, I don't have a Spanish will. I only have the UK will leaving everything to my wife and then the children AFTER she dies. 
Once my children are "adult", can my wife do as she pleases with what I have willed as purely HER house?

Can she do as she pleases before they are of age?

Would be interesting if he said yes to both (or any) of the above. It would certainly get me down to my notario tout de suite! So far as I am concerned, without the power of attourney from any surviving ADULT child, the above UK type scenario is not possible under Spanish inheritence law. Not possible at all whilst they are minors.

Xose


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## Stravinsky (Aug 12, 2007)

morlandg said:


> Hi Xose
> Thanks for your reply. So Forced Heirship DOES apply......
> I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
> Graham


Both English and Spanish solicitors have advised me that it *does not* if you are both UK citizens ..... the English will takes precedence, and thats why its important that you make one!


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## Hombre (Sep 10, 2009)

Stravinsky said:


> Both English and Spanish solicitors have advised me that it *does not* if you are both UK citizens ..... the English will takes precedence, and thats why its important that you make one!


Exactly...both our children are adults and I am informed the English will takes precedence.


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## morlandg (Jun 8, 2008)

Xose said:


> Hola Hombre,
> Just to make sure that he gave you the right advice. In your position I would pose him a pointed question, and see if the answer remains the same.
> 
> So, I don't have a Spanish will. I only have the UK will leaving everything to my wife and then the children AFTER she dies.
> ...


Hi Xose
I think your are correct! My experience with spanish professionals is that they answer your question without considering any consequences or the matter 'as a whole'. They simply answer your specific question.
:focus: IMO 
1. non-movable assets in spain (eg property) must be handled via the spanish succession rules and any spanish will must take this into account. They cannot be freely disposed of by a will.
2. movable assets (eg company shares) can be handled by a will prepared in the UK and later enforced in spain.
SO - is the answer to those of us owning property in spain to create a spanish company and move the non-movable assets into the company? The family can be made directors of said company. On the death of either partner then the shares simply move to the surviving directors(eg partner and family). Costs for setting up and maintaining a company? Anybody have any idea?
Graham


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## Pesky Wesky (May 10, 2009)

*Inheritance/ wills*



morlandg said:


> Hi Xose
> Thanks for your reply. So Forced Heirship DOES apply......
> I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
> Graham


 
From Wikipedia
*Usufruct* is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. In many legal usufruct systems of property, such as the traditional _ejido_ system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.

In Spanish sufruto (xose had popped an extra "r" in  so if you had looked it up in the dictionary you might not have found it for that reason)


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## Pesky Wesky (May 10, 2009)

morlandg said:


> Hi Xose
> I think your are correct! My experience with spanish professionals is that they answer your question without considering any consequences or the matter 'as a whole'. They simply answer your specific question.
> :focus: IMO


I agree, they'll answer your question as well as they can, but you have to ask the question. For example the doctor will tell you "Take this 3 times a day", but if you don't ask won't tell you how long for, what the side effects may be, if you need a follow up appointment...


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## morlandg (Jun 8, 2008)

Pesky Wesky said:


> From Wikipedia
> *Usufruct* is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. In many legal usufruct systems of property, such as the traditional _ejido_ system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.
> 
> In Spanish sufruto (xose had popped an extra "r" in  so if you had looked it up in the dictionary you might not have found it for that reason)


Usufruct is a term I had seen before but didn't know what it meant until I too looked it up in Wikipaedia. I didn't pick up the extra 'r'.
Many thanks for the info.
Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
Graham


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## Pesky Wesky (May 10, 2009)

morlandg said:


> Usufruct is a term I had seen before but didn't know what it meant until I too looked it up in Wikipaedia.
> Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
> Graham


 
Same for me, one of those things you hear and know it's a legal term and that's about it, but you will find that your average Spaniard knows the term and they are also well versed in medical terms. They'll never say "I've got a sore throat" It always faranghitis, amigdalitis etc etc.
As for the creating a company, sorry, not my thing. I have about 20 pounds in a Nat West account and that's about it in the UK. Not much more here in Spain either unfortunately!! I was only interested in the Spanish side of things as my husband and I are thinking about making wills.


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## Xose (Dec 10, 2008)

Pesky Wesky said:


> From Wikipedia
> *Usufruct* is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. In many legal usufruct systems of property, such as the traditional _ejido_ system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.
> 
> In Spanish sufruto (xose had popped an extra "r" in  so if you had looked it up in the dictionary you might not have found it for that reason)


Actually PW, I made a total pigs ear of it. In Spanish the term is Usufructo. Nothing to do with the surfruto I wrote. That's the problem when 4 different languages are flying around in your head. Faux Ami all over the place 

My bad.


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## Pesky Wesky (May 10, 2009)

Xose said:


> Actually PW, I made a total pigs ear of it. In Spanish the term is Usufructo. Nothing to do with the surfruto I wrote. That's the problem when 4 different languages are flying around in your head. Faux Ami all over the place
> 
> My bad.


 
 Well, I've only got 2.1 languages in my head (The .1 is French, that I used to speak quite well about a million years ago when I was student!!), and I manage to come out with all sorts of combinations - creative use of language I say!  I think it's amazing that I've managed to learn the meaning of usufructo, and you've remembered the correct usage of the idiom "to make a pig's ear of something" :clap2: And it's only 11 o' clock!!!

Sorry everyone :focus:


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## Xose (Dec 10, 2008)

morlandg said:


> Usufruct is a term I had seen before but didn't know what it meant until I too looked it up in Wikipaedia. I didn't pick up the extra 'r'.
> Many thanks for the info.
> Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
> Graham


The company setup thing for property is one I've seen advertised quite a bit around this type of site.

I'd just be very wary of the implications and responsibilities of directors. Assuming you live for many years to come, does one have normal company accounts, returns etc., etc. to fullfil? Does one have yearly corporation tax to pay on appreciating assetts? Does one have the capital gain tax to pay when the assett is sold, cost of sale minus cost of purchase, or does one de-value it over X years etc., etc., etc.

Oh and last but not least, when I say one, I mean the company. They are not one and the same and it is sometimes difficult to keep that in mind. The company and you are two different entities. Took me ages to get my head around that when I first started contracting under Ltd in the UK (another lifetime ago)
When I stopped trading (went into PAYE as I got an offer I couldn't refuse) I was shocked that all the money in the company was NOT mine. What ended up saving me was that the company had a deposit account. As such, it was still generating income and so, "trading". The accountant I had was good and used this to get the cash out prior to cease trading status and then closure. But it was a close call. The company nearly went into dormant mode with all my dosh in it!! 

Probably nothing to do with the type of setup mentioned above for foreign property handling but just goes to show how much one should be aware of before doing anything like this to avoid future surprises.

Xose


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## Bevdeforges (Nov 16, 2007)

morlandg said:


> Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
> Graham


I don't know about Spanish law, but under French law there is a special type of company you can set up, specifically for ownership of real property (land and buildings). There may be something similar in Spain - another of those questions you have to ask the notaire about very specifically (same as in France).

In France it's called an SCI - société civile immobilière - and it allows you to hold shares in a property rather than owning the property directly. It's used to get around some of the inconveniences of the French system of "indivision" where heirs (normally the children) inherit property in equal shares, but can do absolutely nothing with it unless all the owners agree.
Cheers,
Bev


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## Stravinsky (Aug 12, 2007)

morlandg said:


> 1. non-movable assets in spain (eg property) must be handled via the spanish succession rules and any spanish will must take this into account. They cannot be freely disposed of by a will.
> 2. movable assets (eg company shares) can be handled by a will prepared in the UK and later enforced in spain


No ....as I said before, because of reciprocal arrangements the British will takes precedence. The whole estate is treated under UK rules, and therefore your house is not automatically split between children etc etc

The important thing is to have a UK and Spanish will, mirroring each other


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## Xose (Dec 10, 2008)

Stravinsky said:


> No ....as I said before, because of reciprocal arrangements the British will takes precedence. The whole estate is treated under UK rules, and therefore your house is not automatically split between children etc etc
> 
> The important thing is to have a UK and Spanish will, mirroring each other


Hi Strav. 
As with everything legal, there are many opinions amongst the "Professionals" let alone the non.

All I can say is that there seem to be one hell of a lot of preofessionals dealing on how to avoid Spanish Inheritance - including things like pre-inheritence, selling to the inheritors to be or even donation, all of which they will have to pay a Tax for but WAY more straight forward than inheritence.... and not to mention, the 6 month payment time limit for example, certain things are made much simpler. 

Here's an example of why I, personally, wouldn't wait for a judges interpretation post inheritance challenges or some such and would get definitive answers from both UK and Spanish authorities.

15 Inheritance & Wills - Living In Spain

Xose


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## Xose (Dec 10, 2008)

Xose said:


> Hi Strav.
> As with everything legal, there are many opinions amongst the "Professionals" let alone the non.
> 
> All I can say is that there seem to be one hell of a lot of preofessionals dealing on how to avoid Spanish Inheritance - including things like pre-inheritence, selling to the inheritors to be or even donation, all of which they will have to pay a Tax for but WAY more straight forward than inheritence.... and not to mention, the 6 month payment time limit for example, certain things are made much simpler.
> ...



...by the way, don't be tempted to just read the top bit - this shows that the UK will is enough if registered in Spain under article 9. Read on re:- anyone resident in Spain who, under Spanish law, loses out and takes it to court.......


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## Stravinsky (Aug 12, 2007)

Xose said:


> Hi Strav.
> As with everything legal, there are many opinions amongst the "Professionals" let alone the non.
> 
> All I can say is that there seem to be one hell of a lot of preofessionals dealing on how to avoid Spanish Inheritance - including things like pre-inheritence, selling to the inheritors to be or even donation, all of which they will have to pay a Tax for but WAY more straight forward than inheritence.... and not to mention, the 6 month payment time limit for example, certain things are made much simpler.
> ...


Oh I know that, but thats because of the extremely high inheritence tax here, not because of the succession. 
Everything I have read anywhere ... all legal advice I have received ..... even David Searles book iirc which is updated regularly, all claim that the UK will takes precedence.
It is true to say though that when the second spouse here dies and leaves to a non resident, the IHT can be absolutely horrendous!


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## Xose (Dec 10, 2008)

Stravinsky said:


> Oh I know that, but thats because of the extremely high inheritence tax here, not because of the succession.
> Everything I have read anywhere ... all legal advice I have received ..... even David Searles book iirc which is updated regularly, all claim that the UK will takes precedence.
> It is true to say though that when the second spouse here dies and leaves to a non resident, the IHT can be absolutely horrendous!


Indeed, there are several issues to consider. Not having a double taxation treaty with regards to inheritance Tax is a major one. The possibility of paying Inheritance Tax here and in the UK...OUCH!!

So, you don't agree with the article ref if challenged, there could be problems, then ?

Defenetely an area in which each person with possible exposure should satisfy for themselves I think.

_Providing this interpretation does not change, there is in practice only one major difficulty. If a person who would have benefited under the Spanish Law of Obligatory Heirs (Ley de Herederos Forzosos) challenges in the Spanish courts a will of a UK national based on the Article 9 declaration providing for the free disposal of property, the Spanish courts will first look at the UK law, find that it applies Spanish law to the disposal of property, and so apply Spanish law –and a person who would have inherited under the Spanish Law of Obligatory Heirs will therefore have his challenge upheld.

If therefore there is any possibility that you might make a will, which disposes of your Spanish property in a way, which could be challenged, it is definitely necessary to consult a lawyer with specialist expertise in this area._


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## Stravinsky (Aug 12, 2007)

Well I know this is Spain, and anything can happen 
What Im saying is that the advice I have been given both professionally and have heard over time is different to what is on the site of a property sales company ... thats all I _can _say

Also I've never heard of such a thing happening, and I do know of several people who have died over here and been through the system.

There were lots of nightmare scenarios I heard back a while where people were worried about their partners dying and then being thrown out of the house because they no longer owned the majority of it ..... I just have never heard of such a scenario happening, or seen people complaining that its happened to them.

I'm open to anything that proves it wrong though 

Personally I plan (and I know its almost impossible) to sell up in maybe 10 years and rent so theres no Spanish property to come into the equation. I have to time it just right though 



Xose said:


> Indeed, there are several issues to consider. Not having a double taxation treaty with regards to inheritance Tax is a major one. The possibility of paying Inheritance Tax here and in the UK...OUCH!!
> 
> So, you don't agree with the article ref if challenged, there could be problems, then ?
> 
> ...


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## Xose (Dec 10, 2008)

Stravinsky said:


> Well I know this is Spain, and anything can happen
> What Im saying is that the advice I have been given both professionally and have heard over time is different to what is on the site of a property sales company ... thats all I _can _say
> 
> Also I've never heard of such a thing happening, and I do know of several people who have died over here and been through the system.
> ...


Absolutely with you on that one. Let it not be said that in Spain there is no conflict of interest advise  Hence my saying that each should satisfy themselves.

I guess it would be easy enough to check "back home" if English law does indeed refer a Spanish house sale back to Spanish law. If that's true, then in the case of a contested will, there could be problems.

Be a shame for you to guess when you're going to kick the bucket though
Bit like the wealthy folk issue in the UK with the pre-inheritence 7 year rule etc. How about pre-inheritance, donation, cheap sale - all with a Sufructo in place of course


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## Pesky Wesky (May 10, 2009)

morlandg said:


> Does anyone know if the Forced Heirship rules apply to we expats in Spain?
> The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
> I have had conflicting advice -
> 1.these rules DO apply and
> ...


Have just found this page. Point 6 talks about who inherits what.
Main features of Spanish wills | Legal guide provided by English-speaking Spanish lawyers with iAbogado, Spain


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## Stravinsky (Aug 12, 2007)

Isn't that all to do with Spanish wills ... IE, It didnt address the English citizenship / english will / ovveride issue



Pesky Wesky said:


> Have just found this page. Point 6 talks about who inherits what.
> Main features of Spanish wills | Legal guide provided by English-speaking Spanish lawyers with iAbogado, Spain


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## Stravinsky (Aug 12, 2007)

Here you go HERE



Stravinsky said:


> Isn't that all to do with Spanish wills ... IE, It didnt address the English citizenship / english will / ovveride issue


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## Bevdeforges (Nov 16, 2007)

The one limitation I see to the website Stravinsky cited is that it seems to be geared to UK residents who own Spanish property. In the case of someone resident in the UK at the time of their death, I can see the UK will taking precedence. But the question seems to be how things work for a UK national resident in Spain at the time of their death.
Cheers,
Bev


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## Stravinsky (Aug 12, 2007)

Bevdeforges said:


> The one limitation I see to the website Stravinsky cited is that it seems to be geared to UK residents who own Spanish property. In the case of someone resident in the UK at the time of their death, I can see the UK will taking precedence. But the question seems to be how things work for a UK national resident in Spain at the time of their death.
> Cheers,
> Bev


For which I already stated that legal advice taken from solicitors both in Spain and the UK point to the fact that the British will takes precedence


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## Pesky Wesky (May 10, 2009)

Stravinsky said:


> Isn't that all to do with Spanish wills ... IE, It didnt address the English citizenship / english will / ovveride issue


Yeah, suppose I lost track of the thread, sorry


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