Have you ever thought what might happen if your spouse or partner was suddenly taken ill and you had to deal with your joint affairs? If they needed to go back to your home country for lengthy treatment and you decided to sell up and go back to be near family you would be confronted with a serious problem if your property is in joint names. In order to sell property all of the owners would need to be physically present to sign. And what if they couldn’t be there? They could execute a Power of Attorney in, for example, the U.K. which would then have to be notarised, translated officially and certified by a Spanish consulate. This process is both lengthy and costly. Fortunately, there is an inexpensive, hassle-free and painless way to avoid this: the Mutual Power of Attorney.
A Power of Attorney gives someone the right to do things on your behalf, for example to sell your share of a property or to represent you in dealings with government authorities. As its name suggests in a Mutual Power of Attorney each person gives the same rights to another. It is particularly useful for husbands and wives or long term partners.
What do I need and what will it cost?
You need a properly drafted Spanish Power of Attorney, a good English translation and an interpreter fluent in English and Spanish to explain to you, in front of the Notary, exactly what powers you are conferring on one another. Once the Power of Attorney is executed you take it home, put it in a safe place and never look at it again. Hopefully. And it will cost you less than €200 between you.
What if we fall out of love?
The easiest way to revoke (i.e. cancel) a Power of Attorney is to remove it from its safe place and destroy it. Just tear it up or put it on the fire. It would also be wise to inform the Notary where the Power was drafted of your decision just in case your spouse asked for a copy.
Death of a Partner
Even in the case of the death of one of you a Mutual Power of Attorney can be used to dispose of your Spanish property. Ordinarily the rights conferred under a Power of Attorney cease upon death but if the Notary and the buyer are unaware of the death, as is almost certainly going to be the case, then the sake will proceed smoothly. Saying “my husband is unable to travel” would not in this case be a lie! Not that anyone is going to ask, as long as you can provide a notarised Power of Attorney.
Under Spanish law a buyer who discovered that he had bought from a dead person would have the right to unwind the transaction. But why would a buyer care as long as he had good title? I can’t imagine anyone wishing to hand back the house they’ve fallen in love with because they’ve discovered that one of the owners had passed away! Using a Power of Attorney in this way would cut through the very lengthy Spanish inheritance process and may well save you money. The making of a Will might speed this process a bit but I hope, for your sake, it’s not a Spanish one.
Next month: Should I make a Spanish Will?
Allan Hilder is a specialist property search consultant with extensive legal experience both in The U.K. and Spain. He is a qualified accountant and a fluent Spanish speaker with a First Class Hons Degree in Spanish and French. If you and your wife or partner wish to execute a Mutual Power of Attorney call Allan on 629866123