WILL IN SPAIN (“TESTAMENTO”)
If you own a property or any other assets in Spain, it is highly recommended to make a Spanish Will.
By doing a will you could save the beneficiaries of your estate from time, money and distress that may be involved in administering an estate in Spain where no Spanish Will exists.
Should I have a Spanish will?
The answer is yes, if you own a property or any other assets in Spain.
The process of transferring your Spanish assets to your heirs is much simpler if there’s a Spanish will.
However, it is a slow and expensive process to get your foreign Will recognized in Spain.
Is Spanish law applicable to my property?
When a foreign property owner dies with no will, Spanish law must be applied to their Spanish assets as a result. Be aware that this differs from countries such as the UK. The deceased in Spain must leave two thirds of their estate to their compulsory heirs.
For instance, a man or woman who dies leaving three children and a spouse, who owns just the one property where the wife or husband is in the title deeds is the half-owner, leaves 50 per cent of the property to her or him. The other half is divided equally between the three children. The title deed will then be amended accordingly to show the four names (the wife/husband owning half, each child owning one-sixth).
The widow or widower can hold a usufruct of the children’s share until she/he dies, so they cannot force through a sale (well, they can, but the wife/husband is entitled to live there until she/he passes away).
In this scenario, all parties must agree and sign the deeds if the house is to be sold. Because the husband/wife didn’t make a Will, Spanish legal system come into play, and the procedure can be time-consuming, expensive, and divisive.
If, however, the property owner makes a Will, they can bequeath their Spanish assets to anyone they please as long as the laws of their home country permit this.
The 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.
Which are the benefits of making a Spanish Will?
These are the benefits of making a Spanish Will:
BENEFIT ONE – It avoids time-consuming and expensive legal issues that your heirs will have to resolve.
BENEFIT TWO – Spaniards have to divide their assets equally among their heirs, and leave two-thirds of it all to their children. As a foreigner, you are exempt from this ruling and you can bequeath your assets to whoever you want.
What assets does my Spanish will cover?
The Spanish Will covers all assets located in Spain.
You should have a foreign will to cover any assets that you have in other countries. You must make sure that there are no legal conflicts between the application of your Spanish will and your will abroad.
What does your service include?
Once you discuss with us the full details of your intentions, we draw up the will, following your wishes to the extent possible, while adhering to requirements of Spanish law regarding wills. To be valid, this will need to be notarized.
We will need you to:
- Provide the data for you, your heirs, and anyone else mentioned in your will.
- Choose a notary (or choose the location in Spain most convenient to you, and we will contact a notary there).
- Sign the will at the notary’s office.
A copy will be given to you. The original will be kept at the notary’s office, thus avoiding risk of loss or theft.
In addition, the notary sends a report to the Ministry of Justice, simply notifying the Ministry that the will has been made, without disclosing the contents.
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.
The content of the Will can be changed during the testador´s life following the same process explained above.
Moreover, if you are not able to travel to Spain to sign your Spanish Will, we can assist you. It is possible to sign your Spanish will in the presence of a Notary Public in the UK. The will must then be registered in Spain.
What happens if the deceased has not left a will?
When the deceased has not left a will, the Spanish Law of Succession determines who shall inherit in the following order:
- The descendants of the deceased inherit in equal shares.
- If there are no descendants, the ancestor.
- If there is no ancestor, any brothers or sisters of the deceased inherit in equal shares. If any brother or sister of the deceased has predeceased and left children, the children inherit their parent’s share in equal shares.
- If there are no brothers or sisters, nephews or nieces, then cousins, if any, inherit.
- Finally, if none of the above family members exist, then the deceased’s estate is inherited by the Spanish Government
Types of Spanish wills
Open Will
This is the usual and common form of will for most people in Spain.
It is made before a Notary, who keeps the original document in his file. The Notary will send notification of the will to the Central Registry of Spanish Wills in Madrid.
Holographic Will
This type of will is handwritten entirely by the testator. It must be signed and dated on each page by the testator. It must be verified as genuine before a judge. The deceased’s closest relatives must verify the deceased’s handwriting. Once this has been done, the judge will enforce the provisions of the will.
Closed Will
The details of your will are kept secret by placing them in an envelope. The testator must then declare the following before a Notary:
- that the provisions of the will are contained in the envelope.
- whether it has been written by a third party or by the testator.
- whether it has been signed by a third party or by the testator.
The Notary then seals the envelope and signs it. It is then filed by the Notary who informs the Central Registry of Spanish Wills.
Do not hesitate to contact REUTERS SOLICITORS for free information.
