Spanish Inheritance Law
Spanish inheritance laws are different to those in the UK and provide that 2/3 of the estate must be left to “compulsory heirs”, primarily children and surviving spouse.This runs contrary to the principles of many foreign countries which allow the testator to freely dispose of his assets according to his wishes.
What then is the position of foreign nationals owning property in Spain?
The Spanish Civil Code allows the assets of the deceased to be distributed in accordance with the law of his home country. This means that a will drawn up by a foreigner in Spain in accordance with his home law will be valid. This allows foreign nationals to draw up a will disposing of their Spanish property freely without following the Spanish law of compulsory heirs.
Does a will relating to Spanish property need to be drawn up in Spain to be valid?
A foreign will can be recognised in Spain but a number of legal formalities are needed all of which make the process very lengthy. In addition to legalising the foreign Grant of Probate and will, all relevant documentation will need to be translated by a certified translator. All these steps can be complicated, very time consuming and costly for the heirs, particularly if they are not based in Spain.
It is therefore advisable to draw up a Spanish will relating to any property and assets in Spain. Administration of a deceased person´s estate in Spain is a relatively straightforward step if a Spanish will is in place.
What is the procedure for drawing up a Spanish will?
The most common form of will and the most convenient form for the testator is the”open will”. This is will is drawn up before a notary and is drafted in accordance with the desires of the testator as previously discussed with a lawyer. It can be drafted in two columns, one in Spanish and one in the testator´s own language. There is no need to appoint executors. A separate will should be drawn up in relation to assets outside Spain.
Once the will has been signed at the notary, it will be sent and stored at the Central Wills Registry in Madrid, although a copy will be kept on file by the Notary. This Central Wills Register can be consulted at any time by anyone wishing to know whether the deceased had made a will.
What will happen to Spanish property where a foreign owner dies intestate?
If a foreigner property owner dies without having a valid will in any country, it will usually suffice for a certificate of Law to be obtained from the deceased´s home country confirming who the beneficiaries would be in the circumstances. This Certificate would need to be legalised and translated into Spanish.
It should be noted that whilst a foreign will may be applicable to Spanish property and assets, Spanish inheritance tax cannot be avoided. There is no general spouse exemption as in many other countries. The potential liability for inheritance tax can be large especially where the deceased/beneficiary are not official residents of Spain.
It would be advisable to take advice on inheritance tax at the time of drawing up the will as there are ways in which the potential tax liability can be vastly reduced.
In summary, anyone owning property in Spain is advised to consult a lawyer and draw up a will in Spain to avoid complicating, time consuming and costly procedures at a distressing time. Our team of English speaking lawyers are experienced in drafting wills for foreigners with property in Spain.