Reuters Solicitors always recommends to legalize a Will / «testamento» which covers properties and other assets based in Spain such as money in Spanish bank accounts.
Should I make a Spanish will?
As previously said, Reuters Solicitors recommend you to make a will regarding your assets in Spain.
- If you have a will: The heritage process is much simple for your heirs if there’s a Spanish will. You will save money and distress to your beneficiaries. They will ask for your will at the “Registro de Actos de Ultima Voluntad in Madrid” and they will attend a meeting with a Spanish Notary to deal with the will.
- If you do not have a will: The heritage process takes more time, a stressful administrative work, and your heirs can take the risk of losing the assets as they can be transferred to the Spanish Government, in the worst case scenario.
Which are the advantages of making a Spanish Will?
There are some reasons for making a Spanish Will:
Reason One: It avoids an incredible amount of stress and pain to your heirs as a will reduces the legal times and worries.
Reason two: The heritage expenses are lower when there is a will.
Reason three: Although Spanish people are obliged to split their assetsequally to their heirs, foreigners do not have to follow Spanish rules.
This means that you do not have to leave two-thirds of your assets to your children and you can allocate your assets to whoever you wish as long as Laws of your home country allow it. Therefore, Spanish Civil Code states that the assets that the foreign deceased had in Spain at the time of their death will be governed not by Spanish law but by their own national law.
You should take into account that the heritance process requires the payment of heritance Taxes at the Tax Authorities of Spain. The main point is that taxes rules settle that taxes are high when the beneficiaries from the heritage are not relatives.
Which are the types of Spanish wills?
There are 3 types of Spanish will:
Open Will
An open will is the usual and common legal figure of will for most people in Spain.
An open will is made before a Notary, who keeps the original document on his records and archives (database records).
The Notary will send a legal original copy of the will to the General Registry of Spanish Wills in Madrid (“Registro de Actos de Ultima Voluntad«).
Closed Will
The main characteristic of this will is that nobody, including the Notary, will know the content of the will. The stipulations of the will are secret and safe inside an envelope. Nevertheless, the testator will declare in front of a Notary that:
- The provisions of his will are enclosed in the envelope.
- He has to declare whether the testator wrote the will or it was written by a third party.
- He has to declare whether the will was signed by the testator or a third party.
After these requirements, the Notary stamps the envelope and signs it. The Notary will notify the will to the General Registry of Spanish Wills in Madrid (“Registro de Actos de Ultima Voluntad).
Holographic Will
An holographic will is the less used in Spain.
This type of will is handwritten as a whole by the testator.
A holographic will needs some requirements for his legality:
- Each handwritten page must be signed and dated by the testator.
- It must be verified as genuine before a judge.
- The deceased’s closest relatives must corroborate and certify that it is the handwriting of the testator. And once this has been verified, the Judge will enforce the will.
What assets does my Spanish will cover?
The Spanish will cover those assets located in Spain. You should have a foreign will to cover any assets that you have in other countries.
Please take into account that you should ensure that there is no legal conflict between the stipulations set in your Spanish will and your foreign will.
What does Reuters Solicitors “will service” include?
Reuters Solicitors gives a full service with your will.
In first instance, we will give you advise and full details of the process, so we can draft the will according to your wishes and conditions by taking into account Spanish law.
The draft will needs to be legalized in front of a Notary for its effectiveness.
Once the will is signed before a Spanish Notary, you will receive a copy of original document for safekeeping. The Notary will also keep an original copy of the will.
However, even if you lose it, or your beneficiaries, can access the terms through the Spanish “General Registry of Wills” in Madrid. In this Registry all Wills legally granted in Spain are recorded by the name of the testator. That way, it can be known which is the deceased’s last official will. The record is kept secret until the death of the testator. At time of asking the last will at General Registry of Wills, we can know what was the deceased’s last official will, thus avoiding possible mistakes.
Moreover, if you are not able to travel to Spain to sign your Spanish Will, Reuters Solicitors can assist you. It is possible to sign your Spanish will in the presence of a Notary Public in your home country. The will must then be registered in Spain.
Reuters Solicitors in Spain will draft the document in a bilingual version, in double column, English and Spanish, so that the notary can identify parties, witness you signing the document and give faith about it. Once it is legalized in your home country, Reuters Solicitors will deal with the registration at the General Registry of Wills in Spain.
What happens if the deceased has not left a will?
Spanish Law of Succession mandatory settles the heritage rules when the deceased does not leave a will.
The succession order is as follows:
– Firstly, the descendants of the deceased inherit in equal shares.
– Secondly, the accentors will inherit when there are no descendants.
– Thirdly, if there is no ancestor, brothers or sisters of the deceased inherit in equal shares. If a brother or sister of the deceased has predeceased and left children, the children inherit their parent’s share in equal shares.
– Fourthly, when there is not brothers or sisters, nephews or nieces, cousins will inherit.
– Finally, if none of the above family members exist, then the deceased’s estate is inherited by the Spanish Government.
Is Spanish law applicable to my property?
Following on from what we previously said, when a person dies without a will, it is mandatory to follow Spanish Law of Succession for his/her assets in Spain. This kind of succession is known as “intestate Succession” (“herencia intestada”)
The Law establishes that the diseased must leave two-thirds of the assets to his/her heirs.
The widow/er will hold a usufruct of the children’s share and he/she can live at the property until she/he dies. This usufruct makes that heirs cannot force the widow/er to sell the property. The property will be blocked until he/she passes away or the parties at a whole decide to sell the property.
Example of a heritage without a will or Intestate Succession
:- A man dies and leaves 3 kids and a wife.
- They own a property in Spain (they are half owners of the property)
- The will says that he leaves 50% of his half to the wife.
- The other half of the property will be divided between the three children in equal shares.
- The heritage deeds will say that the wife owns half of the property, and each heir owns one-sixth.
Which are the requirements to make a will?
Reuters Solicitors will provide you a will questionnaire which has been designed to help you consider some of the points you should think about in connection with your Will in Spain.
The will questionnaire should be fill with:
- personal details of the testator.
- personal information about testator´s heirs.
- particular provisions for theWill.
As previously mention the Will only affects your assets in Spain (all or part of them, according to your requirements). It will not affect the assets you may have in any other country.
The testator will only have to visit the Notary in Spain or in his home country and sign the will.
We would like to point out that the Will is a personal disposal of your assets so each person has to do his own Will. In case of a couple, each member has to legalize his/her own Will.
A will/»testamento» can be changed during the testator´s life following the same process explained above. There is no limit for changes.
If you have assets in Spain and you want to make a WILL, do not hesitate to contact REUTERS SOLICITORS.
