None of us likes to think about making a will, it reminds us that one day the inevitable will happen and we will no longer be here. How ever, consider for a moment all the time and effort you put into providing financial security for yourself and your family, working hard, putting money into pensions and saving to buy that dream home abroad. Then when we have achieved our ambitions, we fail to take the next step in protecting our assets after we pass on.
It is imperative that we decide what should happen to our money and possessions after our death and ensuring that those people and causes that matter most to us are provided for. Making a valid will is the only way of guaranteeing that you take control now of what happens to your assets when you die.
There are thousands of British citizens who own properties in Spain. Many of them are elderly and yet they have made no provision as to what should happen to those assets on their death. Who will take over their assets in Spain, and how much inheritance tax will have to be paid. For these reasons, it is important that you arrange your affairs to make life easier for your heirs and the change of ownership of your assets.
You should be aware that this is only a general guide and cannot replace professional advice
What will happen if there is no will?
If a foreigner dies in Spain without a will, his estate may be automatically disposed of under Spanish law.
If you are British and own a property in Spain the laws of England and Wales state that, your property should be subject to the inheritance laws of Spain.
However, in Spain the law states that property owned by a foreigner should be subject to the inheritance laws of their original country. Confusing!
For a normal British family with property in Spain, where the asset will pass to the spouse and children, the situation is not complicated, but it does require answers to some questions
a. Do I have to make a will?
The answer is no, it is not obligatory to make a will. However, if a foreigner dies in Spain without a will, his assets will be distributed in accordance with Spanish law.
b. Will a will made abroad be accepted in Spain
Generally, a will, which is valid under the law of your home country, will be taken to be valid in Spain
Currently lawyers are advising British domiciled individuals with property in Spain to write a will under Spanish law stating that they wish to have their Spanish assets disposed of in accordance with their national law, i.e., in accordance with the inheritance rules of England and Wales. They also advise such individuals to update their British will to take into account their Spanish property.
If you have lived in Spain for a long time and you want to dispose of your assets according to the law of your home country, then it may be necessary for you to create a legal domicile in your home country for the purpose of making a will
c. Is it better to make a will in Spain?
If you own a property in Spain and you want to save your heirs a lot of time and expense then the answer has to be YES. A Spanish will for the distribution of your assets as per the inheritance laws of your home country will be accepted by a Spanish notary.
The time limit for making an inheritance tax declaration in Spain is six months from the death. If you are waiting for the probate from the home country to be issued, and then have to make the translation and get the “apostille” (can be used whenever a copy of an official document from another country is needed) before taking it to Spain, you may miss this time limit and be liable for fines.
With a will in Spain, you can to an extent regulate the distribution of the assets. For example, you can make sure that your spouse will have the undivided user’s right for life, or that only one of the children takes over the property in Spain, the others having been compensated by assets in the home country.
You can also make an inheritance tax saving by making the right kind of will.
Different Types of Will
There are a number of different ways to make a will in Spain, here are the main ones:
Open Will (”Testamento abierto”)
This is the most common form of will. Here you tell your lawyer or the notary the contents of your will. The notary then signs the official form together with the issuer. The notary will give you a copy of the will and send a copy to the Registrar in Madrid. The original remains at the notary’s office. If you do not understand Spanish, you will need a translation into a language that you understand fluently. It is only mandatory to have two witnesses to the signing of a will if the notary or the issuer requests it
When the issuer dies and before adjudication can be made, a search must be made in the registry in Madrid to find if a will has been deposited there. Even if no will has been registered, written confirmation from the registry in Madrid is obligatory.
Closed Will (”Testamento cerrado”)
The contents remain secret; however, it must be drawn up by a Spanish lawyer to ensure that it complies with the Spanish law. The issuer then places it in a closed envelope. He may then seal the envelope in front of the notary and at least two witnesses. The notary records it as for an open will. The issuer may keep the envelope himself, give it to a person in confidence for safekeeping or deposit it with the notary.
Hand-written will (”Testamento olografo”)
Written and signed by the testator in such a way that there can be no doubting its authenticity, must also be dated. It must be drafted to ensure that your wishes are clear
The will is a private document, which becomes a public document after the death of the issuer. It can be kept safe or given in a sealed envelope to a person in confidence. It needs no witnesses, nor a confirmation from the notary. It can be voluntarily registered with registry of wills. On the death of the testator, it must be authenticated before a judge, which will delay its execution.
Whilst this form ensures complete confidentiality, it may easily be forgotten or lost. It should only be used in exceptional circumstances.
It is advisable to have your will drawn up by a Spanish lawyer in Spain. Keep a copy of your will in a safe place and another copy with your lawyer. The inheritance tax declaration and the payment of inheritance tax duties must be made within six months of your death if you die in Spain and sixteen months if you die elsewhere. Inheritance tax must be paid in advance of the release of the Spanish assets.
We are not qualified to give legal or financial advice we would say that if you think you might be affected then you should seek qualified professional legal advice.
