In this article we will review the advantages of creating a will in Spain if you area foreign citizen or expatriate with properties or assets in Spain.
European Union regulation 650/2012 regarding successions and inheritance is applicable in Spain, even for nationals from countries that are not member states of the EU.
This establishes that the applicable Law to the succession will be the one where the deceased had their residence at the time of death unless it can be clearly proven that the deceased had stronger ties to another State.
The regulation however also allows that a Will may establish that the law to be applied will be that of the nationality of the testator or testatrix.
Why is it important to decide which Law will apply to my inheritance?
The law in some countries offers more freedom to establish a Will than others.
Specifically, Spanish legislation is very restrictive in this regard, since it forces the deceased to leave most of the estate to the so-called forced heirs (usually children or descendants, or failing this, parents or grandparents), regardless of what is stated in the Will of the testator.
The perfect counterpoint would be English legislation, which gives the testator almost full freedom to dispose of the estate as they wish.
If you are a resident in Spain, and you do not execute a Will in which you expressly state that you want the law applicable to your succession to be the one of your nationality, you must take into account that Spanish law will automatically apply, as it would be your last residence.
Therefore be aware that some of the provisions you want or stated within your Will, for example, in favour of your spouse, a friend, or a nephew, could be null and void; which is why the Will must be drawn up correctly.
Why is it important that the Will be granted in Spain?
You must take into account that, in order to be valid in Spain, foreign documents are subject to some requirements that could prolong the process. Also it is worth bearing in mind that the inheritance tax payment in Spain must be made within a maximum period of six months, extendable by a further six.
In addition, you should bear in mind that one of the essential procedures for the validity of foreign documents in Spain is the sworn translation into the Spanish language, which will make the inheritance process more expensive.
Consequently, if you are a resident in Spain, or simply own assets in Spain, it is advisable to make a Spanish Will to speed up the procedures, and most importantly, reduce costs.
Making a Will in Spain could also be useful for tax purposes.
Creating a will could help you with regards to tax planning, which could reduce the amount of Inheritance Tax to be paid in the future.
Within the will, you can state, if the applicable law allows it, to whom you want to leave your assets, establish substitutions, trusts, etc … Good planning for Spanish Inheritance Tax requires specialised advice.
If you are a resident in Spain, or have assets in Spain, it is advisable to make a Will in this country. At White Baos we have a long experience in the management of inheritances and wills, contact us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
Carlos Baos (Lawyer)
White & Baos
Tel: +34 966 426 185
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