Who is it indended for?
This service is intended for those who have been designated as inheritors of the assets a deceased person owned in Spain with a valid Spanish will.
What does it include?
- Request of copies of the Death Certificate, if death took place in Spain.
- Request of a Will Certificate.
- Obtaining of the Will from the Notary Public where it was signed Inheritance Acceptance
- Partition of the inheritance according to what the will states
- Inscription at the Land Registry of the new owners of the Estate inherited.
- Arrangement of payment of the levied Inheritance Tax.
This service does NOT include:
- Notary fees.
- Costs of translation of documents into Spanish.
- Property Registry Costs.
- Costs of taxes and fees involved.
- Dealing with court proceedings for the partition and distribution of the estate.(In this situation you contact with us to study your special case)
Who shall take over your home in Spain, and how much inheritance tax will have to be paid?
Is it better to make a will in Spain? We give you the facts. Lately there have been some regional changes in the deductions on the inheritance, that our readers should be aware of.
Hundreds of thousands of foreign citizens have assets in Spain. Many of them are elderly and should for that reason arrange their affairs so as to make life easier for their heirs and the change of ownership of the Spanish assets less costly. As inheritance laws are different in various countries, you should not rely on information from your neighbour from another country, who will explain the law to you as he knows it from his country. Also there are certain differences, even contradictions, between foreign and Spanish laws on inheritance that must be taken into account. Most lawyers outside Spain do not know Spanish inheritance laws and most Spanish lawyers have no knowledge of foreign law on the subject. If you have a complicated family situation we would recommend that you see a lawyer conversant with both the law of your country and Spanish law. If your case is simple and straightforward, you may feel able to take the necessary steps after having carefully read this information and maybe also the Info-files on Inheritance that FIPE has elaborated for British citizens in English, for Germans in German, for Norwegians in Norwegian, for Swedes in Swedish and for Dutch in Dutch. However, you should be aware that this is a general guide only and cannot replace professional advice on the specific circumstances of your case.
1. What happens if there is no will?
If a deceased person has assets without leaving a will, his assets will be distributed in accordance with the law. But if the person is a foreigner and some of the assets are situated in Spain, the question arises: In accordance with which law, the Spanish or the one of his home country?
The answer to this question depends on the nationality. Spanish law says that the assets of a foreign citizen should be distributed according to the inheritance laws of his home country. For instance Swedish inheritance law agrees with this and states that the inheritance of a Swedish citizen should be done after Swedish law, even if that Swede was living abroad and the assets are situated there. Norwegian inheritance law has another position, and rules that the distribution of assets of a Norwegian living abroad should be done in accordance with the laws of the country he was living in. And English law says that the distribution of real estate located abroad must be done according to the law of the country where the property is situated. So for the citizens of some countries we have diverging rules for the assets in Spain.
Spanish legislation contemplates this situation, technically called «conflict of laws» in articles 9-12.2 of its Civil Code. It states that the law applicable to foreign inheritances is the national law of the deceased. As far as the English legislator is concerned, the law of the domicile for movables and the law of the place where they are situated for inmovables (ley de situs) apply. Domicile can depend on two factors: origin and choice. For the last factor two conditions are required: residence and intention. You may have become domiciled in Spain by taking a residence permit there, but if you have in any way stated your intention to eventually go back to the UK, English courts may consider that you are still domiciled in your home country. Domicile is a very complex subject and in case of doubt a professional opinion should be obtained.
And for a Norwegian the situation becomes the following: If he has left Norway and take residency in Spain, his assets should be distributed in accordance with Spanish inheritance laws. But if he is a non-resident owner in Spain, his Spanish property will be distributed in accordance with Norwegian law, even if inheritance taxes for immovable assets must be paid to the country where the asset is situated.
2. Conflictive inheritance
If a foreigner with assets in Spain has a complex family situation, maybe with children from several marriages or outside marriage, or where the relations between the possible heirs are bad, he should study well what will or could happen when he dies. He should buy our Info-File on Inheritance, and maybe also consult a lawyer.
But for a normal foreign family with a property in Spain, where the assets will pass to spouse and children, the situation is not complicated, even if it calls for answers to some questions:
3. Is it obligatory to make a will?
No, it is not obligatory. If a foreigner with assets in Spain dies without a will, his assets will be distributed in accordance with Spanish law or the law of his home country, depending on the legal situation we mentioned earlier.
4. Will a will made abroad be accepted in Spain?
A will which is valid under the law of your home country will generally be taken to be formally valid in Spain. But if it written in another language than Spanish, the Spanish notary will demand an authorised translation.
5. Is it better to make a will in Spain?
In almost all cases it is an advantage to make a Spanish will for your assets in Spain. However, a will does not change the criteria of the law when it comes to distribution of assets. But a Spanish will for your assets in Spain in accordance with the inheritance laws of your home country is in most cases accepted by a Spanish notary making the new escritura. But if one of the heirs challenges the legality of the will, the matter will be looked into in more detail.
6. Income tax (Impuesto de la Renta)
The reasons why FIPE in all cases of a normal inheritance recommends a will in Spain, are the following:
- If your inheritance in Spain is done over a will made abroad, or decided by an inheritance court abroad in absence of a will, the heirs must prepare an authorised translation and also have an «apostille» (an official stamp verifying the signature of the judge) on the original document. This means additional work, costs and time.
- The time limit for making an inheritance tax declaration in Spain is 6 months from the death. If you are waiting for the probate from the home country to be issued, and then have to make the translation and get the «apostille» before taking it to Spain, you may easily overrun this time limit and be in for fines.
- With a will in Spain you can to a certain degree regulate the distribution of the assets. For instance you can make sure that your spouse will have the undivided users right for life, or that only one of the children is taking over the house in Spain, the others having been compensated by assets in the home country.
- You can also make an inheritance tax saving by making the right kind of will in Spain. We shall go into the details of this in a later chapter
7. Why a Spanish will?
There exist a number of different ways to make a will in Spain.
Here are the main forms:
«Testamento ológrafo» is a hand-written will, completely written and signed by the testator in such a way that there can be no doubt about its authenticity. It must also contain a date of signature.
This will is a private document which is transformed to a public document after the death of the issuer. It can be kept safe or given in a sealed envelope to a person of confidence. It needs no witnesses, nor a notarial confirmation.
This form of will ensures complete confidentiality. On the other hand it may easily be forgotten or lost . Only for very valid reasons should this form of will be chosen.
«Testamento cerrado» (closed will) is also confidential, where the issuer writes it down without any person knowing its content, and thereupon placing it in a closed envelope. He may also seal the envelope and then he takes it to a notary, or the envelope is sealed in front of the notary. The notary and 5 witnesses confirm the act by signing the envelope.
The issuer of the will may keep the sealed envelope himself, give it to a person of confidence for safe-keeping or deposit it with the notary.
«Testamento abierto» (open will) is the most used form, where you tell the notary what the contents of the will shall be, or let a lawyer make it. The notary then gives it the official form and signs it together with the issuer. A report on the will is then sent to the «Registro de las Ultimas Voluntades» in Madrid. When the issuer of the will dies and before the adjudication can be made, a search must be made in the registry in Madrid to find out if a will has been registered or not . Even if no will has been registered, written confirmation from the registry in Madrid is obligatory.
According to law number 30 of 20th of December 1991 it is only mandatory to have 2 witnesses to the signing of such a will if the issuer or the notary asks for it, or if the testator cannot read what is written, if he himself cannot write or if he is mute. If the testator can express his will in Spanish or another language that the notary understands or can have translated on the spot, or if testator can understand what is written or have it translated, then witnesses are not necessary. But if the testator cannot express his will in a language the notary understands, it is necessary to use a translator to be chosen by the testator. The will must then be written in two languages and it must be made clear in the will that the testator understands the second language.
8. Summary of Spanish inheritance rules
Again we repeat what we wrote at the beginning of this information, that Spanish inheritance rules will be applied only in exceptional cases. If you have a normal family situation and make a will for the inheritance in Spain, they will not be used.
The «legítimas», persons with legal rights in an inheritance in Spain are the children, grandchildren , spouse, parents and grandparents of the deceased. But not all of them have such a right in all cases; some of them are only subsidiary heirs.
Children (and their descendants) have a legal right that represents 2/3 of the inheritance. Half of this (i.e. one third) is unchangeable – «legítima absoluta» – while the testator in his wil l may distribute the other third – «tercio de mejora» – according to his wishes, but only among the children and their descendants, not anyone else.
Parents have a legal right if the testator has no children or grandchildren. If the testator is not married, the parents have a right to 1/2 of the inheritance. If there is a spouse, the obligatory part of the parents is only 1/3. If the parents are dead, the grandparents take over the rights. A spouse has in principle only the «life interest» as a legal right. If children exist, the spouse has only the life interest to a 1/3 part, called «tercio de mejora». If there are no children or grandchildren, but parents, the spouse has the life interest of 2/3 of the inheritance. What is left of the inheritance after the distribution of the obligatory parts, the testator can freely dispose of in his will. If there is no will, the court decides the distribution of what is left after the obligatory parts.
Children outside wedlock, from previous marriages or adopted children have the same rights as children of an existing marriage. But the children from the surviving spouse’s previous marriage have no inheritance rights. If a child with an obligatory part is dead, his children have the right to take over. A spouse from a previous marriage, where a definite divorce is completed, has no obligatory part in the inheritance. Common law spouses have no inheritance rights under Spanish law.
After the children and grandchildren (first place), parents and grandparents (second place), and spouses (third place), in fourth place come the sisters, brothers, nephews, nieces and thereafter (fifth place) other relatives. Last in the queue is the Spanish state.