INHERITANCE LAW

 

WILLS AND INHERITANCES

Making a will is advisable reasons, regardless if you are Spanish or come from another country. If you own property in Spain, you should make a Spanish will. This will enable you to choose who will inherit your property and possessions.

If you are a foreigner living in Spain, and your will is from your country of origin, applying this will in Spain could be complicated, more expensive, and take longer to resolve. This is because it is necessary for foreign wills to be validated and translated into Spanish, with the corresponding apostille. This could cause a long delay in processing the inheritance. The heirs might even have to pay surcharges on the inheritance tax. This will happen if the process takes longer than six months.

Therefore, to permit the rapid resolution of an inheritance, it is advisable to make a Spanish will, which covers any property you possess in Spain. Although the areas of your foreign and Spanish wills are different, we can advise you on the best way to draft them in order to avoid any contradiction.

The Spanish law which regulates inheritance is quite different than that of other countries. In the UK, for example, you are free to leave your property to whomever you choose. If you are Spanish, however, you don’t have this freedom. It is necessary to respect the following distribution:

  • One third of your inheritance “la legítima”, must be equally divided among your children if you have any.
  • Another third, “tercio de mejora”, must be given to one of your children, who will receive this amount over and above the previously mentioned third, or it can be divided among the chosen child’s own children.
  • The remaining third, “tercio de libre disposición”, can be distributed by the person making the will, in any way they choose.
  • There are some differences depending on marital agreements, but in general, the husband or wife who survives their partner has the right to use the family home and its contents.

Nevertheless, for foreign clients, it is possible to make a Spanish will, applying the law of their country of origin, which will allow them to bypass these restrictions when leaving their property in inheritance in Spain. In order to do this, it is necessary to explicitly choose the law from your country of origin when making your will in Spain. If not, Spanish law will be applied.

At Desmon Abogados, we offer the possibility of drawing up a Spanish will for you, which will allow you to distribute your Spanish property according to your wishes. If you don’t speak Spanish, there is no need to worry. We will write your will in Spanish and in your native language, so you will fully understand what you are signing at the Notary´s Office.

Once the legal document has been drawn up, you will sign it in the presence of the Notary, who will confirm that you agree with the contents of the document you are signing.

After signing, the Notary will send a copy of the document to the Registry of Wills and Testaments in Madrid. In this way, when there is a death, the existence or not of a will can be easily proven. The heirs only need to ask for a copy of the will from the Notary where it was signed. It is also possible to change a will as many times as desired.

Finally, in regards to inheritance tax, everything the heirs inherit in Spain (bank accounts, properties, cars, stocks, pension plans, etc), will be taxed. In the case of foreigners, it is sometimes possible to compensate this tax paid in Spain, to avoid paying tax on the same property in their country of origin.