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Discussion Starter · #1 ·
We are going to our lawyers next week to sort out our wills.

We have an information sheet to fill out, but I have one question - I've emailed our lawyer but -

Am I right or wrong saying that our children have to state they will not take their thirds of our goods if one of us die, or is this an expat myth ?
 

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We are going to our lawyers next week to sort out our wills.

We have an information sheet to fill out, but I have one question - I've emailed our lawyer but -

Am I right or wrong saying that our children have to state they will not take their thirds of our goods if one of us die, or is this an expat myth ?
IMHO - what you should do is to add the 'Brussels clause' stating that you wish your will to be executed under the laws of your country of birth. In that way, you get to decide who has what.

Something like;

The bequeather states that he wishes the disposition of
their assets, rights and shares to be under the provisions of the law of
the bequeathers nationality as provided for under Civil Code
Article 9(8) and the EU Succession Regulations,
650/2012 Article 22.
or
La testadora manifiesta que esta disposición que
ahora otorga, es posible con arreglo a su Ley personal
y no prejuzga ni impide cualquier otra que pudiera tener
otorgada en su país de origen o en otro distinto del de
España, declarando que es su voluntad que sean aplicadas
las normas sucesorias del país de su nacionalidad a su sucesión,
en concreto las de Inglaterra y País de Gales.

(please forgive my Spanish)
 

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Discussion Starter · #6 ·
Hola

The UK way allows you to donate whatever to whomsoever you want - the Spanish way doesn't

Davexf
Ok thanks

Basically we want to leave it all divided between our two children, so I would have thought that's the norm here in Spain?
 

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Loads of info about wills and inheritance here.
Testamentos y herencias - notariado

An extract
What happens if no will is made
The first problem that arises if a person dies without having made a will is what happens to the inheritance. Contrary to what some people believe, the inheritance is not lost, nor is it acquired entirely by the State. What happens in such cases is that as the deceased has not established who the heirs are, then they will be appointed by law, in accordance with our order of family relationship.
As in the case of wills, we will explain here the Spanish National Law principles, leaving to individual notaries themselves any further information about the Devolved Regional Laws, given their complexity and the differences that exist among the Autonomous Regions.

Who are the heirs in the absence of a will
If the deceased has children, the inheritance is divided among all of them in equal parts.
If any of the children died before the parent, the following distinction must be made:

  • f the child in turn had descendants, then they receive in equal parts the portion that would have been inherited by their father or mother.
  • If the deceased child had no descendants, then the inheritance is divided only among those children that are living at the time of death of the mother or father.
If the deceased was married, then the spouse enjoys only a usufruct over one third of the inheritance. Meanwhile, as would be expected, the spouse owns one half of the jointly held assets, since these assets are, while both are living, held in equal parts.
 

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Discussion Starter · #10 ·
Loads of info about wills and inheritance here.
Testamentos y herencias - notariado

An extract
That's fab... thanks

This us us
The most common will: “From one to the other, and then to the children”

The most common will: “From one to the other, and then to the children”
This will offers the certainty that while either of the spouses is alive, he or she will be entitled to live in the home and use the assets, and when both are no longer living, the property will be passed on to the children in equal shares, even if the widow or widower has remarried, since they will not be the owner, but a usufructuary. The system is colloquially known as 'from one to the other, and when both die, to the children'. And the fact is that this expression perfectly corresponds to the content of such a will. It is so simple, that it is no surprise that it is the model most commonly used by married couples drawing up a notarial will. Each of the spouses must draw up this will separately: they are individual documents.

The most typical case is of a married couple with children planning to make a will. The typical idea they would have is that the widow or widower should retain the greatest possible rights, and in particular be able to continue living in the home and making use of the assets during his or her life, after which they will be passed on in equal parts to the children.

The way to achieve this is for each of them to make a respective bequest of universal usufruct, in other words all assets owned by the deceased being attributed to the surviving spouse, while naming the children as heirs in equal parts.

This means that the widowed husband or wife can make use of and receive the revenue and yields from the assets of the two of them in life, which means for example that he or she is entitled to live in the home, without the children being able to refuse this. In the event of leases, the widow or widower will receive the rent and, in general, will benefit from all yields on any assets previously held by the two of them, but may under no circumstances sell anything that belonged to the deceased, unless all the children grant their consent. When the widowed parent dies, the children will receive the inheritance of both parents subject to no limitation.

The widowed parent will in all cases enjoy unrestricted rights over his or her half of the jointly owned properties (once the joint assets have been distributed between the latter and the children), since this half is not received as an inheritance from the deceased, but was owned prior to the death. The effects of the will are limited to the half of the joint assets corresponding to the deceased, plus his or her exclusive assets, in other words those that were in turn inherited, or received by donation, or those owned prior to marriage.

With this type of will, in order to avoid any possible detriment to the reserved portion of the children, what is known as the 'Socini safeguard' is included: if any of the children does not agree to the widowed father or mother receiving a usufruct over all assets (since a claim can always been made for a reserve portion applied strictly without any usufruct), that child will forfeit everything except the strictly applied reserved portion, in favour of all other siblings that do so accept. This offers greater guarantees to those children who respect the will of their parents.

The formula is very often supplemented by offering the widowed parent the option of receiving, instead of usufruct over all the assets, the maximum attribution possible by ownership, which under Spanish National Law would be one third. The widowed parent will consider, in accordance with his or her age and circumstances, whether he or she prefers a usufruct or would rather realise a portion of the inheritance in property, that can then be sold without recourse to the children.

Can I suggest that link goes into a sticky.....?:clap2:
 

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That's fab... thanks

This us us



Can I suggest that link goes into a sticky.....?:clap2:
I think it's the part that says the widow or widower cannot sell anything which belonged to the deceased without the consent of all the children which would put a lot of people off using this type of Will. Surely it would make it more difficult if the bereaved spouse decided they'd like to downsize the property they live in, or move to a different area, for example?
 

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I think it's the part that says the widow or widower cannot sell anything which belonged to the deceased without the consent of all the children which would put a lot of people off using this type of Will. Surely it would make it more difficult if the bereaved spouse decided they'd like to downsize the property they live in, or move to a different area, for example?
Hola

Yes I totally agree; the surviving person does not have the freedom to use the assets however they wish perhaps using everything to enjoy the rest of their lives and leaving virtually nothing to the kids.

A "normal" British will leaves everything to the surviving partner; if divorced people remarry I can see that some protection for all children of previous marriages would have to be made. That is why you need a solicitor to draw up a proper will.

Davexf
 

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Indeed I have a similar clause(s) written into our wills.

However, this clause partly comes under EU Succession Regulations. Will our impending departure from the EU render this clause ineffective?
Not in respect of assets domiciled in Spain because the will will be applied in Spain and therefore still under the EU Succession Regulations.
 
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