Wills - Inheritances

Get peace of mind signing a will in Spain that covers your Spanish assets.

Why you should make a Spanish Will: Imont Legal Services recommendation is that if you own a property in Spain, you should make a Spanish will to distribute your Spanish assets in the event of your death.

There are both practical and legal reasons for doing so. Practically, an English will covering your Spanish property would need to be entered into probate in England before it could be "legalized" and translated for use in Spain. This could cause a considerable delay to the administration of your estate in Spain and could also increase the overall costs of administration. The delay may even cause the executor of your estate to miss the deadline for paying any Spanish tax due in Spain, resulting in penalty fines. 

So in order to hasten the international private law procedure and bureaucracy after death it is, therefore, advisable to prepare a Spanish Will relating to your assets in Spain, but it is very important to get proper legal advice to ensure that you Spanish will and any UK existing will do not contradict each other or, even worse, that one does not cancel the other out.

Spanish inheritance Law and the new European regulation: Spanish inheritance Law is very different to UK law, since the Spanish citizens do not have the freedom to distribute their estate in the way English persons do.

The Spanish citizens are obliged by law to follow the Spanish Succession provision, which for a married person with children specify that :

  • One third, that they name “legítima”, has to be distributed equally among the children
  • A further third, that they name “tercio de mejora”, must also be given to any of the children or to all of them in equal shares, but with a life interests in favour of the surviving spouse.
  • The remaining third is named “tercio de libre disposición” and can be distributed by the testator in his/her will as he/she wishes.

Probably the most frequently asked question from our clients relating to Spanish succession is whether forced heir ship rules will apply to all foreigners that own a property in Spain. The answer will depend on your status of Spanish resident or not ,and also on the existence of a Spanish will or not.

If you are a non resident in Spain, the answer is that the Spanish law provides for your national law to apply, meaning the law of the country of which you were a national as at the date of death; but if you are a Spanish resident, you have to take into account the new REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 that shall apply to the succession of persons who die on or after 17 August 2015, and set as a general rule, that the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death. The article 22 of this Regulation, should enable citizens to organize their succession in advance by choosing the law applicable to their succession. That choice should be limited to the law of a State of their nationality, but a choice of law should be made expressly and the selection of the applicable Law must be included on the Will .

So the conclusion is that writing a Spanish will can be the best way to ensure that your Spanish assets are dealt with according to your wishes since the most effective way to ensure that English law applies to an estate is for you to make a Spanish will in relation to your Spanish assets, specifying that you wish English law to apply to your estate in Spain.

The Spanish Will: A Spanish will can easily be prepared for you by your lawyer by writing a document in both languages giving legal form to your instructions regarding your Spanish assets. . Once your decision has legal form, you will have to testate before the Notary, who gives faith of your identity, the authenticity of your will and your capacity to testate.

After signing the will, the Notary sends information relating to the identity of the testator and the place at and date on which he made a will to a centralized registry of wills in Madrid. The helpful result is that upon the death of the testator a certified copy of the will can be obtained from the relevant Notary’s office, a document that can then be used by the beneficiaries to administer the estate with the legal assistance of your lawyer in a very short period of time after your death.

Inheritance taxes: Unlike in Britain, there is no exemption from inheritance tax between husband and wife. A tax form must be completed and the taxes paid. In Spain it is the heir who is taxed and not the estate. Tax will be calculated on the relationship of the heir to the deceased, the amount of the inheritance he/she receives and existing wealth.

All assets will be taxed – bank accounts, property, cars, golf shares etc, in Spain, but HM Revenue & Customs will give you a credit against UK inheritance tax payable on the property to offset any tax already paid on it in Spain, which, in practice, should prevent your executors from having to pay two lots of inheritance tax.

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