In many holiday destinations, it was common for foreigners living or owning property in Spain to make a will before a Spanish notary with the express indication that it „only relates to their assets located in Spain“. This is a special form of will called a „simpliciter“ because it is a supplementary will to the more general will normally drawn up in the country of origin. Spanish notaries and lawyers have often recommended that foreigners who own a holiday home or holiday flat in Spain draw up such a separate Spanish will and have it notarised by a Spanish notary. In such wills, the following or similar formulations can be found in Spanish wills:
„Es voluntad del testador limitar este testamento, única y exclusivamente, a sus bienes, derechos y acciones en España. Instituye heredera universal de todos sus bienes, derechos y acciones en España a ...“
„It is the will of the testator to limit this will solely and exclusively to his property, rights and interests in Spain. He appoints ... as heirs to his property, rights and interests in Spain.“
Even today, some Spanish notaries still recommend that foreign nationals should draw up a separate will in Spain for their assets in Spain. However, caution is advised here! In most cases, the existence of another will in Spain leads to considerable problems in the settlement of the estate. Germans who have already drawn up such a will are advised to have it checked by a German specialist lawyer for inheritance law. The background to this is that, according to the European Succession Regulation, only the court of the country in which the deceased had their last habitual residence has jurisdiction over the entire estate. If it is actually only a holiday flat or a holiday home in Spain, the habitual residence usually remains in the home country. If the habitual residence is in Germany, the probate court in Germany is responsible for settling the entire estate.
Example: A German citizen living in Düsseldorf (habitual residence) purchased a finca in Mallorca in 2001. Together with his wife, he drew up a Berlin will before a Düsseldorf notary in which the couple appointed each other as sole heirs. When he bought the holiday property in Mallorca, he was advised to draw up another will for the assets in Spain. In this Spanish will, he also appointed his wife as heir to the assets in Spain. This Spanish will is held in safekeeping by a notary based in Palma de Mallorca. After his death, the probate court in Düsseldorf is to open the Berlin will drawn up in Germany. In the proceedings before the probate court in Düsseldorf for the issue of a certificate of inheritance or a European Certificate of Succession, the probate court in Düsseldorf requires the submission of an affidavit. The heir must state all wills of which he or she is aware, including the will drawn up in Spain, which is in the custody of the Spanish notary. The probate court will then also request the submission of the Spanish will. The transmission of the Spanish will to the probate court in Düsseldorf will delay the proceedings considerably, sometimes by many months, as the German probate courts do not communicate in Spanish. Spanish notary's offices generally do not respond to enquiries in German. Spanish notaries also frequently demand compliance with special Spanish formal requirements, which are usually not observed by German probate courts because they mean additional work and are not customary in national transactions (e.g. legalisation of dispositions, application for an apostille).
In addition to the practical difficulties in transmitting wills located in Spain to German probate courts, the existence of a will drawn up by a Spanish notary can give rise to considerable inheritance law problems and conflicts. These conflicts are obvious if the provisions in the Spanish will differ from the provisions in a German will. Let us change the above example to the effect that the testator has again designated his wife as his sole heir in the German will, but in the Spanish will has designated the children as heirs to his assets in Spain instead of his wife. In this case, there are in any case two divergent inheritance provisions according to the wording, although the heirs for the entire estate are in principle only to be determined uniformly according to the European Succession Regulation.
The frequently encountered wording in Spanish wills for foreigners, namely that the designation of inheritance should only apply to assets located in Spain, clearly contradicts the European Succession Regulation. In principle, this assumes that a uniform inheritance law applies to all estate assets. In the example case described above, the German courts have jurisdiction for all decisions in the inheritance case. On the other hand, German inheritance law applies to the entire estate, regardless of where the estate assets are located. German inheritance law therefore also applies to the holiday flat in Spain or the holiday home in Spain. The heir or heirs are universal successors to the deceased's entire estate, regardless of where the assets are located. It is therefore not possible for one person to inherit the assets in Germany and another person to inherit the assets in Spain. Such a disposition made in Spain, which only names an heir in relation to the assets located in Spain („...única y exclusivamente, a sus bienes, derechos y acciones en España.“), would probably not be understood as the appointment of an heir under German inheritance law, but as the arrangement of a legacy. Even if the same person is designated as heir in the Spanish will as in the German will and there is therefore no obvious conflict, other provisions in the Spanish will will typically differ from the wording in the German will, if only because the Spanish notary is not as familiar with German inheritance law as a specialist lawyer for inheritance law or a German notary. The existence of a Spanish will therefore almost always leads to problems of interpretation and uncertainty in probate proceedings before the German probate court.
If you have assets in Spain, you should therefore seek advice from a specialist inheritance lawyer when drafting your last will and testament. Drawing up another will in Spain will only be advisable in rare cases. If you have already drawn up a will in Spain, this should be checked by a German specialist lawyer for inheritance law. As already explained, German inheritance law will ultimately also apply, at least if you have your habitual residence in Germany or, as a German national, have made a choice of law in favour of German inheritance law. For this reason, the Spanish will should also be reviewed by a specialist inheritance lawyer with experience in international inheritance law. We will be happy to advise you on the drafting of wills with reference to Spain. We will discuss the various drafting options with you in detail. We draft wills for you that take into account your family situation, the centre of your life and the fact that you have assets in different countries. Our team includes experienced German and Spanish lawyers specialising in international, Spanish and German inheritance law. We have excellent contacts with tax advisors and notaries in Spain, with whom we co-operate on a regular basis.