In case you have assets in Spain, regardless of their size, you should make a will (“testamento”), a process for which it is recommended to have legal assistance. Our Spanish lawyers can help you in the process of drafting a will in Spain, whether it is a standard or a more complex one.
|Why make a will in Spain
– to have control over your assets after you pass away,
– to create financial security for your loved ones,
– to ensure your wishes are carried out,
– to save time and money regarding the legal process with our Spanish lawyers.
Will types in Spain
– open will,
– closed will,
Steps for making an open will
– contact a notary in Spain to prepare the will,
– ensure that the will is legal and complies with Spanish law,
– have three witnesses and the notary review and sign the will,
– make a copy of the will and send it to the General Registry of Wills
|How to make a closed will
– contact a lawyer in Spain to draft the will,
– ensure that the will complies with Spanish law,
– have the will reviewed and signed by a notary and two witnesses, record the will as an open will
– create the will orally or in your own handwriting,
– sign the will if it is in your own handwriting,
– no other formalities or witnesses are required,
– register the will with the Registry of Wills if desired,
– contact our attorneys in Spain if you need assistance
|Registration with The Central Registry of Wills (YES/NO)
Yes, in all three cases
|Wills in Spain for foreigners
Foreign citizens can prepare a will in Spain to provide for their assets in the country, but the will can only apply to the assets held in Spain.
Two separate wills may be required to address inheritance matters in multiple countries.
Many foreign citizens seek the advice of Spanish attorneys when drafting their testaments.
|Spanish legislation on wills
Following the European Union's Regulation 650/2012, the applicable legislation for a will in Spain is the national legislation where the person's habitual residence is located.
|Contesting a will in Spain
Contesting a will in Spain requires a grounded reason to proceed with the action.
Persons who want to contest a will can only do so if they have sufficient evidence.
|Steps for obtaining inheritance in Spain
– acquire the original death certificate within 24 hours of the person's death,
– apply for the certificate of last wills and life insurance or probate to determine the rightful inheritors,
– collect information on all assets of the deceased, obtain a Foreigner Identification Number (NIE) for inheritance and sign the certificate of inheritance,
– liquidate inheritance taxes,
– change the title of all assets of the deceased to the legitimate heirs
|Inheritance tax in Spain
The Spanish succession tax must be paid by the receivers of inheritance if they are residents of Spain or if the asset is located in the country (such as real estate).
There might be some exceptions to this regulation in some regions.
Contact our lawyers in Madrid for more information.
|Acceptance of inheritance in Spain
– sign a Title Deed of Acceptance,
– determine the inheritance tax to be paid
In case of real estate inheritance, register the property with the Spanish Land Registry.
|Spanish laws about the division of inheritance
The division of inherited assets under Spanish law follows a specific order:
– 1/3 of the estate is divided equally among the children and spouse (compulsory heirs),
– 1/3 of the estate is divided among other compulsory heirs chosen by the testator,
– 1/3 of the estate is divided among those stipulated in the deceased's will.
|Advantages of making a will in Spain
– dispose of your assets in Spain as desired, you can make a separate will for assets outside of Spain,
– foreigners can leave properties to whom they prefer,
– you might be able to receive a reduction of up to 95% for inheritance tax for the estate in Spain
|Inheriting a property in Spain
Under Spanish law, if no will is present, the property is usually inherited by the spouse, children, or parents of the deceased, in that order.
In the absence of these, siblings or other relatives may inherit the property.
The advantages of making a will in Spain
There are a few benefits of making a will in Spain and here are a few of them:
- It is a way of avoiding expensive legal matters that the heirs will have to resolve otherwise; you can as well make a separate will in order to dispose of the other assets you have outside of this country;
- If you are a foreigner you are not obliged to divide your assets equally among your heirs, but instead, you can leave your properties to whoever you prefer. The estate you own will, however, be subject to the inheritance tax in Spain;
- You can get a reduction of 95% for your estate concerning inheritance tax. This is not applicable to non-residents though.
For further details on the benefits of making a will, you can ask our attorneys in Spain who will assist you in the process of drawing up a will in Spain and also in any wills-related legal issues you may encounter.
Types of wills in Spain
There are several types of wills one can make in Spain and the rules applying to witnesses are quite strict, thus, if you fail in following the procedures exactly, the will can become void or null.
- The open will (“testamento abierto”) is the most recommended type of will for the majority of people. The document has to be prepared by a notary who has to ensure that the will is legal. Also, its content must be known by three witnesses and the notary who then have to sign the will. A copy of it must be sent to the General Registry of Wills (“Registro General de Actos de Ultima Voluntad”).
- The closed will (“testamento cerrado”) must be drawn by a lawyer in Spain who has to make sure that it complies with the Spanish law. The will has to be seen by a notary who has to sign it and seal the envelope (along with two witnesses), ultimately having to be recorded as the open will. Our law firm in Spain can ensure that all the legal steps have been completed and that the will complies with the law. If you need assistance when drafting a will in Spain, our team is at your disposal.
- The holographic will (“testamento ológrafo”) is made orally or with your own handwriting. In the second case, it has to be signed and no other formalities or witnesses are needed. It can also be registered with the Registry of Wills. This type of will is generally the better solution for someone with a smaller estate in Spain.
Preparing a Spanish testament
Before drafting one’s will in Spain, there are several aspects to be taken into account. Among these, one of the most important is having witnesses. In the case of a closed and open will, the testator is required to have at least two witnesses who are not closely related to the testator. The open will must be drafted in the presence of a Spanish public notary, while the closed one once ready must be sealed in an envelope and handed over to the notary. When handing the closed testament to the notary, the testator must declare that the will was prepared and signed by himself/herself or by a third person.
No matter the type of testament, it will be registered with the Central Registry of Will in Spain. Each will receives a registration number.
Foreign citizens preparing wills in Spain
Foreign citizens may prepare a will in which they can only provide for their assets in Spain as it will be easier for the heirs to claim the estate. However, foreign citizens owning property in Spain will also have their foreign will recognized in Spain, but only with respect to the assets held in this country. Assets or estate held abroad cannot be governed by the Spanish inheritance legislation. One must also make sure that the two inheritance laws are not in conflict when preparing two separate wills. This is also one of the most important reasons why most foreign citizens request the advice of Spanish attorneys when drafting their testaments.
The legal grounds on which a will can be contested in Spain
When drafting a will in Spain, the testator will sign the document in front of a public notary, which will testify that the document was signed following the applicable procedures. In this case, the persons wishing to contest a will should have a grounded reason to proceed to this action.
The main reasons to contest a Spanish will are the following:
• the inheritor considers that the document is invalid, as a consequence of the way it was drafted;
• the testator did not have the testamentary capacity, which means that the document was never intended to be a will;
• the testator did not offer his approval on the respective document;
• fraud matters;
• undue influence – the testator was influenced or forced to specify a certain provision he or she did not wish to include in the document.
Persons who want to contest a will can only act in this sense if they have sufficient evidence that can be included in one of the above-mentioned conditions; our team of Spanish attorneys can offer an in-depth presentation on this matter.
Will legislation in Spain
Following the European Union’s Regulation 650/2012, the will legislation in Spain changed, in the sense that the applicable legislation for this document would be the national legislation where the persons’ habitual residence is. The legislation became effective in Spain since 2015. Before the enactment of the regulation, the applicable rule was the national law where the person deceased (as prescribed by Article 9.8 of the Spanish Civil Code).
Spanish inheritance law does not allow you to leave your assets to just anyone, there is a limit to it. This is done in order to make sure that the children (as they come first in Spanish law) will receive a bigger part of the assets than the spouse. For further information about inheritance, feel free to ask our Spanish lawyers.
Steps for inheritance in Spain
There are a few steps that can be followed if you want the whole process of inheritance to be completed as soon as possible and our law firm in Spain can guide you through it.
- You first need to acquire the original death certificate. This is recommended to be done within the first twenty-four hours after the person’s death.
- Then you can apply for the certificate of last wills and life insurance. In case there is no will, you can apply for probate in order to determine the rightful inheritors.
- You should also find out details about all assets of the deceased as it is better to include bank accounts, real property, vehicles etc. This is to make sure that the titles are changed for all assets to the legitimate inheritors. A Foreigners Identification Number (NIE) is required for inheritance as well as it is needed for signing the certificate of inheritance.
- Then the liquidation of inheritance taxes needs to be done, as well as changing the title of all assets of the deceased to the legitimate heirs.
For all these procedures, you can receive guidance from our lawyers in Spain, who will take care of every detail so as to complete them in the shortest time possible.
How to get the NIE number required for the wills in Spain
As mentioned below, if you are an executor or beneficiary dealing with an inheritance in Spain, you need to get an NIE number. Obtaining a NIE number is an important step to ensure that you can fulfill your responsibilities and rights as an executor or beneficiary of a will in Spain.
To obtain a NIE number, you can go through a few simple steps. If you are currently in Spain, you will then need to register with the Oficina de Extranjeros (Foreigners’ Office) and submit various documents such as: the completed form, a document explaining the purpose of obtaining the NIE, and a copy of your passport.
If you are a foreigner, please contact our law firm in Spain for a detailed process.
Wills in the English language
It is crucial that your Spanish will aligns with your will in English or any other language. Both wills should be coherent and not contradict each other. Consulting our Spanish lawyers can help ensure they are properly coordinated.
It is also advisable to have your Spanish will be drafted by a specialist who understands international laws and the complexities of different legal systems to help you create your will, even though you are still required to sign it in front of a notary.
Spanish inheritance taxes
The Spanish succession tax or “Impuesto sobre Sucesiones Y Donaciones” is the tax applied on gifts and inheritance, being paid by the receiver and it is only due when he/she is resident in Spain or when the asset is located in the country (real estates etc).
According to the inheritance law, the inheritance tax has a time limit of four years. Our Spanish lawyers can explain this in detail.
There is a special case involving Spanish will and inheritance taxes, specifically if during this four-year period, the will gets lost. If the inheritors find the will and present it to the authorities within four years, they can still register the assets without having to pay any inheritance tax.
In Spain, there is an additional rule that says the inheritance tax must be paid within six months after the person’s death. This six-month period is added to the four-year time limit, making it a total of four years and six months.
Please note that inheritance taxes depend on the resident location of the deceased. For example, Madrid has its own inheritance tax regulations because the Spanish State has given the authority to collect inheritance and gift tax to the autonomous communities (Comunidades Autónomas). In this case, it is recommended to reach out to our lawyers in Madrid for a better understanding of how Spanish wills and inheritance work specifically in that area.
Rules and rates for Spanish inheritance taxes vary depending on the relationship between the beneficiary and the donor; however, step-children and unmarried couples commonly pay more than natural children and spouses. In some regions of Spain, there is almost no tax applied for children and spouses, in places like Madrid and Comunidad Valenciana. Last, the allowances, as well as the tax rates, vary according to the group the recipient falls into (natural and adopted children under 21 etc).
Revoking a will in Spain
For revoking a will in Spain, the testator must still have the mental capacity he/she had when thewill was originally created. Even if the testator had previously stated that he/she wouldn’t cancel the provisions of the will, this act can still be revoked.
This can be done by creating a new will that either changes or completely replaces the old one. The testator can also revoke the will by stating his/her intention to cancel or keep specific provisions in front of a notary. If there are multiple wills, only the last one is considered legally valid.
If you want to know how many wills the deceased person made, you can request a certificate from the Central Registry of Spanish Wills.
Persons interested in revoking or changing their Spanish wills can contact our attorneys in Spain.
The Spanish legislation on the division of the inheritance
The Spanish Inheritance Law was designed to protect the family and limits a testator’s freedom when it comes to the division of assets. The law provides for the so-called “enforced heirs” who have the legal right to inherit two-thirds of the estate. The division of inherited assets under the Spanish legislation will be done as it follows:
- one-third of the estate will be divided in equal shares between the children and the spouse, the so-called compulsory heirs,
- one-third of the estate will be divided among the other compulsory heirs chosen by the testator,
- one-third of the estate will be divided among those stipulated in the deceased’s will.
For assistance in matters related to the divisions of assets in case of inheritance, you may refer to our law firm in Spain.
Accepting an inheritance in Spain
The inheritance legislation also applies to foreign citizens living in Spain or accepting an inheritance from Spanish citizens. There are several steps one must follow in order to gain possession of the inherited assets. The first step is signing a Title Deed of Acceptance. The inheritor must know that the Spanish legislation provides for an inheritance tax. The second step will be determining the inheritance tax to be paid. In case of real estate inheritance, the last step will be registering the property with the Spanish Land Registry.
We have collected a few interesting facts and statistics about Spanish wills and their importance:
- Approximately 100 million euros are left unclaimed each year in Spain as a result of unclaimed inheritances;
- Only in the month of March 2020, a number of 19,400 inheritances were officially registered;
- In 2021, 40% of inheritances were rejected by their heirs due to various factors;
- In 2019, 0,58% of total tax revenues in Spain were from inheritance, estate, and gift taxes.
You can contact our lawyers if you need assistance with drawing up a will in Spain or other legal issues related to it.