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SPANISH WILLS and PROBATE MATTERS IN SPAIN

In this report you will find advice and comments from your lawyer regarding the advantages of having a Spanish will for all foreign property owners in Spain.�� We also consider how legal formalities can be simplified for your heirs in testamentary matters when real estate property in Spain is involved.

Legal costs for testamentary matters in which a property situated in Spain is involved could escalate if you do not get legal advice on time

We include a sample of a Spanish will drafted in two columns, in accordance with Spanish Legal custom; this document is ready to be filled in and signed in front of a Spanish Notary public or even before the Spanish Consul. Useful tips and advice from your lawyer are also included and, in addition, we enclose a guideline of the main Spanish related laws on inheritance matters (inheritance taxes, property, wills, etc.)

1. A Spanish Will, why?

Making a Spanish will is not essential because a will made in any other country is valid under Spanish law.�� However, when needed ��in Spain, the preliminary legal formalities in your country (authentication of your will, legalization etc) could then take a very long time. Also, certain extra costs for foreign documents to be used in Spain have to be borne in mind (foreign lawyers, Spanish lawyers, translators, legalization etc).

You have to bear in mind that all foreign wills have to be legalized by the corresponding official body in your country and then translated by an officially approved translator in Spain in order to have legal effect in Spain.

It is possible that your foreign will includes all assets and properties whether they are situated in your country or in Spain.�� However, it is also possible that the description of properties situated in Spain is not accurate enough. This may cause problems later when the legal document is sent to Spain to complete the transfer of the property from the deceased person to his/her heirs.

Wills made before a Spanish Notary Public do not have to be either legalized or translated. They are all registered in one central office in Madrid called the ��Last Wills Registry�� (Registro de Ultimas Voluntades) so that, at a minimum cost and without any delay, they certify which is the last will and where it was signed. Thus, it is possible to carry out all probate matters very quickly, based on the last Spanish will.�� The only legal document needed from [Lawyer1] abroad to act on the will would be an official Death Certificate duly translated by a certified translator or the nearest British Consul.

2. Legal formalities.

With the above documents (Certificate of last will, your Spanish will and Death certificate) the transfer of the deceased person��s property, including bank accounts, can be effected to the heirs. This requires obtaining the corresponding Inheritance Deed (Escritura de Adjudicaci��n y Manifestaci��n de Herencia) and, secondly, settling the corresponding taxes (Death Duties), [Lawyer2] etc. applicable to the property of the deceased, situated in Spain.

With these points in mind it can be seen that it is advisable for foreigners owning property in Tenerife to have a Spanish will made so that, in the event of death, the legal formalities can be carried out in a quick and simple way. In addition there is the advantage that the Spanish estate can be dealt with locally, separately from the remainder of the estate abroad.�� Spanish wills for British subjects are normally made independently from their existing wills in the UK, or elsewhere, indicating that they are made only to dispose of property situated in Tenerife (or within Spanish territory)

The will must be executed and signed in the presence of a local Notary and drawn up in English and Spanish. If the testator does not know Spanish well, an interpreter is required.

TESTAMENTO ABIERTO	OPEN WILL
En ....�Ķ......................................... mi residencia, a ...................................... de 2000. A las ....................................................	In �Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ., my residence, on �Ķ..�Ķ�Ķ.�Ķ�Ķ�Ķ�Ķ�Ķ. 2000. At .................................................................
Ante m��, Don�� ...................................,Notario.	Before me, Mr�ݬ� �Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ Notary.
COMPARECE�ݬݬݬ�	APPEARS
Don/��a ............... (de soltera ...........................), mayor de edad,�� ................, casado/a en ��nicas nupcias [Lawyer3] con Don/��a ...............,de nacionalidad brit��nica, domiciliado/a en�� .................. Inglaterra, provisto/a de pasaporte [Lawyer4] Brit��nico en vigor n��mero ....................., expedido en .......	Mr/s �Ķ�Ķ�Ķ�Ķ�Ķ�Ķ (nee �Ķ�Ķ�Ķ�Ķ�Ķ.�Ķ..), of legal age, �Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ., married to Mr/s �Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ, of British nationality, domiciled at�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�Ķ�� having British passport number �Ķ�Ķ�Ķ�Ķ.., issued in �Ķ�Ķ
Tiene a mi juicio, la capacidad legal necesaria para otorgar este TESTAMENTO ABIERTO [Lawyer5] y lo hace seg��n sus instrucciones as�� mismo doy fe de que se expresa con arreglo a las siguientes,	He/She has in my judgment the necessary legal capacity to execute this OPEN WILL, which is done according to his/her instructions and which will be expressed in accordance with the following
MANIFESTACIONES	��DECLARATIONS
Que naci�� en ............. (Inglaterra),�� el�� ........... de ......., es hija de ........... (vive/falleci��) y de ........... (vive/falleci��), casada en ��nicas nupcias con Don ........................., de cuyo matrimonio tuvo y vive un hijo llamado Don ..............., soltero	That she was born �Ķ�Ķ.., England, on the �Ķ�Ķ �Ķ�Ķ., being the daughter of �Ķ.. (living/deceased) and �Ķ�Ķ (living/deceased) and married in her first marriage to �Ķ�Ķ., of whose marriage there are the following descendants: �Ķ�Ķ�Ķ, nee.
DISPOSICIONES	DISPOSITIONS
PRIMERA[Lawyer6] .�� Manifiesta que el otorgamiento de esta disposici��n es perfectamente factible con arreglo a su ley nacional y limitada a los bienes existentes en Espa��a, los que existen en otros pa��ses se regir��n por las disposiciones que al respecto de los mismos tengan hechas o hagan en el futuro con independencia de la presente.	FIRST.�� The testatrix states that this disposition is perfectly feasible in accordance with her national law and, since it is restricted to assets located in Spain, those situated in other countries shall be governed by the dispositions she has made in that respect or she may make in the future, independently of the terms hereof.
SEGUNDA[Lawyer7] .�� Instituye como ��nico heredero a su esposo/a, hijo: ...........	SECOND.�� She appoints as her only heir her Husband/ wife / son:�� Ķ�Ķ�Ķ..
TERCERA[Lawyer8] .�� Para el caso de que alguno de sus herederos premuera al�� testador o no quiera aceptar la�� herencia, nombra herederos sustitutos a�� ......	THIRD.- Should any of her heirs predecease�� the testator or not wish to accept the inheritance, he/she names as substitute heirs �Ķ...
El/La testadora que se expresa en su lengua, la inglesa, est�� acompa��ado del traductor designado por ��l mismo, Don ........, que manifiesta que el/la compareciente tiene el firme prop��sito de otorgar este Testamento Abierto, y que al no hablar la lengua espa��ola, lo hace de acuerdo con el Articulo 684 del C��digo Civil, en las dos lenguas, haciendo constar que la traducci��n al idioma ingl��s que figura a continuaci��n del texto espa��ol es traducci��n exacta del original espa��ol.	The testatrix who is using his/her own language, English, is assisted by the translator he/she has designated, Mr. �Ķ�Ķ�Ķ�� who declares that the person who appears has the firm intention of granting this Open Will and, not being conversant with the Spanish language, he/ she does it using the two languages; he/she further states that the translation into the English language shown immediately following the Spanish text is an exact translation of the Spanish original.
Leo el texto escrito en lengua Espa��ola, y el/la testador/a lee el texto escrito en su propia lengua. Se ratifica el segundo en su contenido, y firma junto con el int��rprete Identifico al testador a trav��s de su pasaporte..	I read the Spanish text and the testator reads the text written in her own language. He/She ratifies her approval regarding its contents and signs together with the translator.�� I identify, by means of her passport, the testatrix.
Del conocimiento del testador e int��rprete, de haberse observado la unidad de este acto y todas las formalidades legales que para los testamentos abiertos precept��a nuestro C��digo Civil, y de todo lo contenido en este Instrumento P��blico redactado en dos folios serie OE , de clase octava, n��meros 5455597 y 5455598	Having cognisance of the testatrix and the translator, having observed unity in this act and all the legal formalities set forth in our Civil Code for Open Wills, as well as the entire contents of this Public Instrument drawn on stamp duty paper series OE, class 8��, folios numbered 5455597�� and 5455598.
DOY FE.	I, THE NOTARY, ATTEST.

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RELATED LAWS

Spanish Civil Code

Article 684.

When the testator expresses his testamentary intentions in a language with which the Notary is not conversant, an interpreter chosen by the testator shall require to be present to translate the testamentary provisions to the notary in the place used by him for certifying deeds.�� The document shall be written in both languages with an indication as to which language the testator has used.

Open wills and certificates of sealed wills shall be written in the foreign language used by the testator and in the official one used by the Notary, even when the latter is conversant with such foreign language.

Article 685.

The Notary must know the testator personally or, failing that, identify him by means of two witnesses who know him and are known to the Notary or of documents issued by public authorities for the purposes of identifying persons.�� In addition, the Notary shall ensure that in his judgement the testator has the necessary legal capacity to make a will.�� In cases governed by Articles 700 and 701, the witnesses must know the testator and ensure his legal capacity.

Article 686.

If the testator cannot be identified in the manner provided for in the preceding article, the Notary or the witnesses, as the case may be, shall state this circumstance and describe the documents produced by the testator to that effect and his personal distinguishing marks.�� In the event that the will is challenged for such reasons, the burden of proof as to the identity of the testator shall fall on the party affirming the validity of the will.

Article 687.

Failure to observe the formalities set out in this Chapter as to the granting of wills shall render such a will null and void.

Article 694.

Open wills shall be executed before a Notary with jurisdiction to act in the place where the will is made, with the exception only of those cases expressly provided for in this Section.

Article 695.

The testator shall express his testamentary intentions orally or in writing to the Notary.�� Once the Notary has drafted the will in accordance with such instructions, stating the place, year, month, day and time of its being granted, and the testator has been advised of his right to read it himself, the Notary shall read it out loud so that the testator may affirm whether or not it represents his intentions.�� If so, the will shall be executed at once by the testator with capacity to do so and shall be signed by such witnesses and other persons as are required to be present, according to the circumstances.�� In the event that the testator affirms that he is not able to sign, one of the witnesses shall sign it at his request and on his behalf.

Article 696.

The Notary shall certify either that he knows the testator or that he has duly confirmed his identify, failing which he shall affirm in accordance with the provisions of Article 686.�� In addition, he shall certify that, in his judgement, the testator possesses the necessary legal capacity to make a will.

Article 697.

Two suitable witnesses must be present at the execution of the will:

When the testator declares that he is not able to sign it;

When the testator, although capable of signing, is blind or states that he is not able to read the will by himself;

In the event that a testator is not able to read and is completely deaf, the witnesses shall read the will in the presence of the Notary and must affirm that its terms coincide with the declared intentions of the testator;

When the testator or the Notary so require.

Article 698.

The following persons should also be present at the execution of a will:

Identifying witnesses, if necessary, who may also act as attesting witnesses;

Professional persons who declared the incapacity of the testator, if appropriate;

The interpreter who translated the intentions of the testator into the official language used by the Notary, if appropriate.

Article 699.

All the formalities provided for in this Section shall be carried out in a single process, beginning with the reading of the will.�� Any interruption of the process shall be unlawful, except in the case of chance accident.

Article 700.

If the testator should find himself in imminent danger of death, he may grant a will before five suitable witnesses, without the need for a Notary.

Article 704.

Any will made without the authorization of a Notary shall be deemed to be invalid unless it is recorded in a notarial instrument and entered into record in the manner provided for in the Civil Proceedings Act.

Article 705.

In the event that a will be declared invalid by reason of failure to abide by the formalities provided for in each case, the Notary who authorized it shall be liable in damages for any prejudice caused thereby, provided such failure was due to malice or inexcusable negligence or ignorance.

Inheritance Tax:�� Royal Decree 1629/1991 8^th November - Law 29/1987 18^th December

Article 67. Time limits

1. Documents or declarations shall be presented within the following time limits:

�ݬ� In the case of acquisitions mortis causa, including acquisitions by the beneficiaries of life insurance policies, within the period of six months counting from the date of death of the deceased or from the date of confirmation of the declaration of death.

�ݬ� The same period shall apply in the case of acquisitions of usufruct which depend on the death of the usufructer, even though the property may have been broken up by an inter vivos act.

�ݬ� In other cases, within thirty working days counting from the day following the date of the event or contract.

Article 68. Extension of time limits

1. The office with jurisdiction over the receipt of documents or declarations may grant an extension of the period for presentation of documents or declarations relating to acquisitions mortis causa equal to the period originally indicated for presentation thereof.

2. An application for extension shall be presented by the heirs, executors or administrators of the deceased��s estate within the first five months of the period for presentation.�� The certificate of death of the deceased shall be presented along with the application, which shall include statements of the names and addresses of the declared or presumptive heirs and their degrees of relationship with the deceased, if known, of the approximate value of the assets and rights of the estate, and of the reasons for the application.

3. In the event that no authorization is received within one month of the date of the application, the extension of time shall be deemed to be granted.

4. No extension of time shall be granted when the application thereof is presented outwith the first five months of the period for presentation.

5. In the event that the requested extension of time is not granted, the period for presentation shall be deemed to be extended from the day following the date of the application to the date of notification of the refusal of the application.

In the event that, as a result of such extension, the application is presented outwith the period of six months from the date of accrual of the tax, the taxpayer shall be liable to pay interest for the period of time elapsed since the expiry of said six month period.

6. Any extension of time granted shall be deemed to begin on the expiry of the six month period stipulated in Article 67.1, a).�� Interest shall be due up to the date of presentation of the corresponding document or declaration.

7. In the event that the corresponding documentation is not presented within the extension of time granted, provisional settlement may be calculated on the basis of such information as the Administration may have at its disposal, without prejudice to any penalties which may be imposed.

Article 69. Suspension of time periods for presentation of documents.

1. In the event that probate proceedings are instituted in relation to taxable transactions or contracts in terms of Inheritance and Donation Tax, the time periods stipulated for the presentation of documents and declarations shall be interrupted and shall be deemed to recommence as from the day following the date of the final judgement which puts an end to such judicial proceedings.

2. When proceedings are brought after the presentation, within the corresponding time period, of documentation or a declaration, the Administration shall suspend settlement until final judgement is issued.

3. In the event that proceedings are brought subsequent to the expiry of the presentation period or of any extension thereof without the corresponding documentation or declaration having been lodged, the Administration shall require such presentation but may suspend settlement until final judgement, without prejudice to any penalties that may be imposed.

4. If proceedings are brought subsequent to settlement, parties may agree to the postponement of payment in accordance with the terms of articles 84 and 90 of these Regulations.

5. Procedural steps taken for the purposes of opening wills or recording them in notarial instruments; the drawing up of inventories for the purposes of accepting or considering acceptance of an inheritance; the avoidance of intestacy or probate proceedings; the declaration of heirs without challenge; and, generally, voluntary legal actings lacking a litigious nature, are not to be considered judicial proceedings for the purposes of the suspension of time limits referred to in the preceding paragraphs.

The claiming of rights of pre-emption or of free redress, or demands for payment of debts against the estate or intestacy, shall not result in suspension of time limits, provided the creditor has not instituted proceedings in court.

6. The bringing of probate proceedings shall interrupt the stipulated time periods, which shall be deemed to recommence as from the day following the date of final judgement ordering division of the estate or putting an end to a contested action, or from the date when all interested parties abandon litigation.

7. For the purposes of this article, judicial proceedings shall be deemed to commence on the date of lodging the corresponding claim.

��

8. Similarly, criminal proceedings concerning falsity of the will or of the deed of transmission shall be deemed to be judicial proceedings for the same purposes.

9. In the event that parties to litigation fail to proceed with the case during a period of six months, the Administration may require the presentation of the corresponding documentation and proceed with settlement relative to the actings or contract in dispute, without prejudice to any reimbursement that may be due in the event that the court so declares on the termination of such litigation.�� In the event that the court declares the proceedings abandoned, the corresponding time periods shall be deemed not to be suspended and the Administration shall require payment of the penalties and interest involved as from the day following the date on which the stipulated time periods for lodging documentation would have expired.�� In the case of suspension of proceedings by agreement between the parties, the interrupted period for presentation shall be deemed to recommence as from the date on which such suspension is sought.

Article 70. Geographical Jurisdiction

Documents and declarations shall be lodged at the following offices:

�ݬ� In the case of acquisition of goods and rights mortis causa, in the office corresponding to the territory where the deceased had his habitual domicile.

�ݬ� If the deceased was not habitually domiciled in Spain, in the Office of the Treasury (Delegaci��n de Hacienda) in Madrid, except in cases where one or several heirs habitually domiciled in Spain decide, by agreement among those interested, to lodge them in the office corresponding to the territory where any one of them has his habitual domicile.

�ݬ� All documents and declarations relating to a single estate must be lodged in the office which has jurisdiction in accordance with the terms of the two preceding paragraphs.

�ݬ� In the event that a single document concerns the acquisition of goods and rights from different estates, it shall be lodged in the office with jurisdiction over the last estate to be created.