Certain situations involve personal and financial consequences that one can foresee before they arise. A proactive approach entails foreseeing and regulating the consequences of death; and disability. What should I be aware of in each case? And which tools are available to me?
What are the main tools available to me in Spain to control the effects of my death, or of supervening incapacity?
There are very important personal and financial consequences attached to both death and certain life events or circumstances (like supervening incapacity), especially in the context of a family business, which can be shaped by the arrangements you make of your own free will.
Although most people are aware that they have the chance to control the use and distribution of their assets when they die, by providing a will, there are still not very many who devote the necessary time and resources to making proper plans and arrangements for their succession in all the related areas and possibilities. People often shun the idea of thinking about and controlling such a definite future event as death, and are normally even more reluctant to think about and control potential cases of supervening incapacity.
While it is not easy to embark on a thought process on these issues, if it is confronted as a responsibility, it will be an opportunity to gain a clear idea of your wishes, make sure they are fulfilled, and give peace of mind to the people in your family and business environment. This thought process will, in all likelihood, end with the signature of various legal documents which will be the means to realize your wishes.
Death generally entails the transfer of a person’s assets, rights and obligations to their heirs. A person’s legacy is guided by their wishes expressed principally in a will, or in the absence of a legal document setting out their wishes, by the provisions in the law.
While there are certain legal limits, such as forced heirship, which depend on the applicable law (and therefore on nationality and/or residence) the maker of a will has a considerable amount of freedom to make their own decisions. It is therefore crucial in succession planning to give thought to what your wishes actually are, and then make arrangements for those wishes, by asking and answering questions of the following type:
- Are there any circumstances I am particularly worried about concerning my family or financial structure? Such as, for example:
- Administration of the assets of minors or incompetents.
- Unequal treatment among my descendants.
- Special protection for my spouse or long term partner (particularly if they are not the parent of my descendants).
- Protection of assets with regard to family members by marriage.
- And so on
- Do I want certain assets to be kept in the family after the next generation?
- How and on what terms would I like to leave my assets?
- I am not Spanish but do I have considerable assets in Spain?
- Does the current structure of my assets fit the structure needed to fulfill my last wishes?
- Are my wishes legally and economically viable?
These are just some of the key general questions that must be thought about to arrange for the will maker’s wishes, which may need to be controlled using the instruments provided in the legal system, such as: special administration of assets for minors, usufructs, fideicommissary or trust-type arrangements, appointing nominees, controlling the ultimate destination for assets, codicils etc., as allowed by the applicable law.
From a strictly formal standpoint, we wish to point out that the wills of Spanish nationals executed abroad are recognized as valid in Spain provided that their form is in accord with Spanish law or with the law of the place where the will was executed. Further, for foreigners with assets in Spain, it will generally be recommendable for them to execute a codicil in Spain before a notary, which only contains provisions on the arrangements for assets located in Spain, and for that codicil to be registered at the Spanish registry of wills (Registro de Actos de Última Voluntad); in the absence of such a codicil, the arrangements for the assets in Spain will be governed by the provisions in any will executed by the foreigner which is valid according to his national law or the law of the place where it was executed.
Greater life expectancy has increased the occurrence of age-related dementia, which in many cases is degenerative, often leaving sufferers unable to make their own decisions, and the occurrence of strokes, for example, which can result in the same type of impediment, temporarily or for life.
Aware of this fact, Spanish lawmakers drew up, some ten years ago now, Law 41/2003, of November 18, 2003, on the financial protection of people with disabilities, which gave anyone with sufficient capacity to act, the ability, in anticipation of being declared incompetent by the courts, to leave instructions concerning their person or assets in a notarized deed, including the appointment of a guardian or an administrator for their assets and measures for their supervision. This is known as self-guardianship.
Under these types of arrangements, decisions that were previously the domain of judges can now be taken by anyone.
As a result, to carry out proper financial planning, you will need to answer questions such as:
- What will happen to my assets if I become incapacitated through an accident or illness?
- Who will manage them?
- Who will act on behalf of the shares in the family business?
- How and with what type of control or supervision?
- Who will take the decisions in relation to my personal care?
Further, aware of the reluctance of family members to have people suffering from those impediments declared incompetent, Spanish law allows a power of attorney granted by a person with full capacity to act to be able to continue in force, if they so wish, in the event of supervening incapacity, and also allows a power of attorney to be granted which will only come into effect if the grantor becomes incapacitated, and in which the grantor can also say how their incapacity must be determined (it is usual practice in these cases for the principal to provide that their incapacity will be determined by producing two doctors’ certificates from independent institutions declaring that there is a physical or mental failing that prevents the principal from making their own decisions).
Lastly, Spanish law allows a living will or advance directive to be drawn up so that anyone can provide instructions on their healthcare, to be implemented if they have a terminal illness (within the applicable legal limits, since active euthanasia is not permitted in Spain).
The documents described above (self-guardianship, power of attorney in anticipation of incapacity and a living will or advance directive) are registered at various registries, to make sure they will be applied if the circumstances triggering them occur.