Spanish will: Advantages and the process

Making plans and arrangements for when you die isn’t easy. However, it is an important process to go through and perhaps even more so when you have property in another country. There are many differences in the way inheritance works in Spain in comparison to elsewhere.

It is important that you know what it entails and have taken action to ensure that your wishes will be fulfilled and your assets are protected for those you care about.

Succession laws

Spanish succession law requires that a proportion of the estate must be left to legal beneficiaries such as your spouse and children. Children must inherit two-thirds of their parents’ inheritance. Other nationalities living in Spain can follow the succession law of their own country if they prefer. However, EU legislation means that this intention must be declared in your Spanish will. If the correct clause isn’t included then the distribution of your inheritance will automatically revert to Spanish law. If you have no will at all, then Spanish law will also apply.

Making a Spanish will

Although it isn’t obligatory to make a Spanish will, we do recommend that people with assets in Spain make one, even though they may have already made one in their home country. A will made in another country must be translated by an official translator before it will be accepted in Spain. Additional legal arrangements have to be made that can make the procedure more complicated at a time when your family could least do with it.

So, making a Spanish will helps simplify the process when beneficiaries come to inherit as there will be no need for an official translator, the Foreign Office or lawyers in your country to be involved.

Any foreigner, resident or non-resident can make a Spanish will leaving Spanish assets to anyone they choose as long as their national law allows this and they declare this as their intention on the will itself.

In the process of making a will in Spain you have opportunity to think about the best ways of distributing your property to ensure that those you leave your belongings to do not have too much Spanish inheritance tax to pay.

For example, sharing your property out between several people can mean that there is less inheritance tax as they will each have their own threshold rather than just having one.

Advantages of making a Spanish will

• it simplifies the handling of your affairs
• it ensures that your wishes comply with both, Spanish formalities and law of your nationality, and can be fulfilled
• forward planning can help to reduce the inheritance tax bill
• it will be easier for your inheritors to arrange inheritance tax payments
• it deals more effectively with your Spanish assets but will not interfere with assets in another country
• Spanish wills are stored safely at the Notary’s office where signed and registered at the ‘Registro General de Actos de Última Voluntad’
• you can be sure that everything is legal and above board

If you don’t make a Spanish will

• all document must be translated by a sworn translator and sealed with the Apostille seal of the Hague Convention
• the process will be more expensive
• it increases the likelihood of family disputes
• there is a risk that delays might lead to tax penalties being implemented

Preparing a will

A husband and wife must each make separate wills. The will is prepared as a bilingual version – one in Spanish and the other in the chosen language. The will is then taken to the Notary’s office where it is signed and certified. The Notary keeps the original and you will be forwarded a copy for your records. The will is then registered in the central will registry in Madrid (Registro Central de Ultimas Voluntades).

Any will you might grant later on in your home country should clearly state that it only refers to assets in that country.

Otherwise, it takes precedence if it includes reference to ‘everything’ and is dated after the Spanish will. This can mean that your Spanish assets are distributed in the same way as your assets in your home country, which may not reflect your wishes.

Once you have made a will you should ideally inform your inheritors about what to expect and whom to contact.

Changing your will

All Spanish wills are registered in Madrid. This has advantages and disadvantages. It does mean that a copy of your most recent Spanish will can always be located easily.

However, it also means that you can’t just make changes too it. The whole will must be re-written if you change your mind or circumstances alter. Because of this you might be advised not to specify in too much detail when you make your will.

Donating property

Some people prefer to donate their property rather than bequeath it when they die. If you do decide to do this you still need to go through the process of signing a new title deed. This process is called the ‘Donación de bienes’ and is a gift from the donor to the donee.

You will still have to declare a tax on the property that you give away. This is known as donation tax (Impuesto de Sucesiones y Donaciones). In addition, you will still have to pay fees such as notary, land registry and solicitors’ fees.

However, there are advantages to taking this approach as you can sort out your assets and ensure that all taxes are declared in your own lifetime. It can also mean that there is no need for your children to seek a power of attorney in the future if your health is deteriorating. However, you do want to be sure that it’s the right step to take for you and your family.

The prospect of Brexit means that there can be significant financial savings for British nationals taking this option now rather than waiting for Britain to leave the EU. Donating your property does not mean that you can no longer live in the property. However, officially the property no longer belongs to you and decisions relating to it will fall to those who are now the official owners.

Taking these measures sooner rather than later can make the whole process easier and cheaper for those you are bequething your property to.

In conclusion

We hope that this article has clarified how wills work in Spain. It may sound a little daunting because it is different from the process you are familiar with in your home country.

To simplify things it is well worth talking through with Ábaco staff, what your intentions are. They can then provide you with advice as well as preparing the will both in your own language and in Spanish. This will ensure that you are absolutely clear that your wishes are correctly outlined. From here, we forward the will to the Notary office, in order  to  have it in place for granting.

The appointment with the Notary is organised by Ábaco and a member of our multi-lingual staff will accompany you there. There is no need to worry about your wishes being lost in translation as they will ensure that everything is clearly translated and accessible to you.

Our will-making service includes legal and fiscal advice, preparation, translation, Notary fee and inscription in Registry. You needn’t worry about anything. However, we will need you to provide us with the relevant documentation including your passport, residency information or NIE number.

However difficult the conversation may be, once you have made your will and expressed your wishes, you should feel better knowing that your forethought will help your inheritors.