WILLS

Index

• Is it necessary to make a will?

• International will or a will for assets in Spain: which is better?

• Drafting a will in Spain

• Requirements to draft a will in Spain

• The most common types of wills in Spain

• Who should I appoint as executor in my will?

• Executors: choosing the right one

• How to challenge a will

• What is the procedure when there is no will?

• How to value your assets in Spain

• Our services

Is it necessary to make a will?

If you are planning to move to Spain, or already live in Spain, you should consider making a will. It is important to understand that Spanish succession law may be very different from the law in your home country.

If you are an expatriate resident in Spain or a non-resident with assets in Spain (e.g., a property), your assets will be distributed according to Spanish law if you do not have a will. Succession law in Spain operates at both national and regional levels, so it is important to be aware of both to avoid unexpected surprises, such as forced heirs at the national level.

Is making a will really necessary?

You could leave your assets in Spain to someone under a will made in your home country, but this is not advisable. The cost of administering the inheritance afterward will be higher, and it may cause issues with timely payment of inheritance tax. The additional costs and complications of having no will are significant and should be avoided.

Drafting a will in Spain does not take long or cost much, and it will undoubtedly save your heirs time, money, and complications.

Do not forget the tax implications (inheritance tax planning), which will vary depending on various factors: residence of the deceased and heirs, value of the estate, number of properties, relationship to the deceased, place of residence, etc.

Our advice is to have two separate wills: one in your home country for assets there and another in Spain for Spanish assets. Alternatively, you can make an international will in Spain covering worldwide assets.

International Will or a Will for Assets in Spain: Which Is Better?

In our professional experience, we have often seen law firms advising clients to make an international will, i.e., a will that applies not only to assets in Spain but also in other countries, whether the testator’s nationality country or other countries where the testator owns assets.

In our opinion, this is not the best advice for several reasons:

1. An international will signed in Spain may require additional formalities before it can be applied abroad. For example, in England, to execute a Spanish will, the English court may require that the inheritance has been fully processed in Spain and that the deed of acceptance of inheritance is notarized. This is crucial to consider because the deadline for paying Spanish inheritance tax is only six months from the date of death.

2. An international will must be translated and legalized to be enforceable in a foreign country, increasing costs for heirs compared to having a separate will for each country where assets are located.

Drafting a Will in Spain

It is not mandatory to make a will in Spain. As mentioned, the inheritance can be processed without a will or based on a foreign will.

However, a foreign will must be translated and legalized before it can be used in Spain. This may be more expensive than drafting a Spanish will.

A Spanish will for your Spanish assets can also save time because the foreign country handling assets in Spain may require that the inheritance is processed first in Spain before starting the succession process in the other country.

Requirements to Draft a Will in Spain

Spanish law requires the following conditions for a valid will:

• Proof of identity of the testator

• Testamentary capacity

• Minimum age of 14, or 18 for holographic wills

• The will cannot be signed by another person

• Joint wills are not allowed

There is no limit on the number of wills that can be created or revoked. When a new will is made, the previous one is automatically revoked. All notarized wills are registered in the Central Registry of Last Wills, and the last registered will is considered valid.

The Most Common Types of Wills in Spain

1. Open Will (Testamento Abierto): The most common type in Spain. Prepared by a notary, signed before the notary and two witnesses, and registered in the Central Registry of Last Wills.

2. Closed Will (Testamento Cerrado): Prepared in secret but with legal assistance to ensure compliance. Sealed in an envelope, signed by a notary and two witnesses, and registered.

3. Holographic Will (Testamento Ológrafo): Handwritten by the testator, simplest and cheapest, but easiest to contest and hardest to execute. Can be voluntarily registered. After death, a judge or notary must authenticate it, with at least two close relatives confirming the handwriting.

Who Should I Appoint as Executor?

A common mistake is appointing an executor for all worldwide assets.

For example, an English citizen making a will in Spain for assets in Spain and England may appoint a Spanish lawyer as executor for both. The Spanish lawyer will likely only be able to handle the Spanish estate, so they will subcontract an English lawyer for the UK assets, doubling costs for heirs.

Executors: Choosing the Right One

Do not choose an executor unfamiliar with the law of the country where the assets are located.

For assets solely in Spain, a Spanish law firm is appropriate. For worldwide assets, appoint an executor familiar with foreign law, or make separate wills in each country.

We are Spanish lawyers and also Solicitors of England and Wales, so we can handle inheritances governed by English law.

How to Challenge a Will

Although challenging a will is uncommon in Spain, reasons may include:

1. Fraudulent actions

2. Lack of testamentary capacity

3. Omitting a legally entitled heir

4. Failure to fairly consider heirs

5. Duress or coercion

6. Negligence by the executor

7. Invalid will

The legal time limit to challenge a will is 4 years.

Procedure When There Is No Will

If an expatriate dies in Spain without a will, the process can be long and complex. Spanish law requires inheritance tax procedures to be completed within 6 months of death.

It is advisable to hire a lawyer immediately. The applicable law must be determined (Spanish or foreign), and documents such as death certificates, marriage certificates, birth certificates, asset lists, bank statements, and passports may need to be translated and legalized.

How to Value Your Estate in Spain

Valuing an estate can be complex. Cash deposits and shares are straightforward, but real estate may be complicated.

The Spanish Tax Agency uses reference values for property, which may not reflect the current market. A real estate appraiser can provide a professional valuation. For unofficial valuations, a real estate agent or market comparison may suffice.

Valuation affects inheritance tax and municipal capital gains tax if property is sold. Consider tax brackets, relationship to the deceased, and applicable exemptions.

Our Services

We can help draft your Spanish or English will, for assets in Spain or worldwide.

• We provide guidance and draft your will in Spanish (and English if needed).

• We prepare a questionnaire about your assets, locations, beneficiaries, and conditions.

• We draft a draft will and, once approved, schedule a Notary appointment to sign the final document.

• The Notary informs the Central Registry of Last Wills in Madrid. Your lawyer can access this registry to locate the last will if lost.

• For UK wills, the process differs, and we can assist as well.

Contact us today for a feasibility assessment of your case.