Do I need a Spanish will? Advice for expats on setting up a will in Spain

Last Will and Testament with reading glasses and pen

Wills issued by a foreign national in their own country by foreigners who own property or assets in Spain are considered to be valid under national law. But trying to validate a foreign will can be difficult and costly at a difficult time for your heirs. It is simple to properly plan for your death and the disposal of your Spanish assets, ensuring the execution of your final wishes are quickly carried out.

As always, proper planning ensures time and money is saved later on.

Your heirs are in charge of legalising a foreign will in Spain. In brief, this means identifying the inheritors, having an official translation of the will made into Spanish (or an official co-language where appropriate), and having the will apostilled under the Hague convention.

This process must be completed within six months of the death of the will’s object, as this is the period under which all taxes must be filed and paid under national law in Spain. Late filing of inheritance taxes will incur a financial penalty.

This often means that the heirs are subjected to a difficult and sometimes costly process of ensuring that they comply with Spanish law, a law and country they may be entirely unfamiliar with.

Therefore, it is often more practical to make a Spanish will that deals exclusively with the assets located in the country. It’s not difficult to draw up a will in Spain – read our guide on how to make a will in Spain.

EU legislation

EU regulation 650/2012 (4th of July 2012) is not applicable to Great Britain nor Eire, but it is applicable to their subjects who are resident in other EU countries including Spain.

The regulation states that the inheritance law applicable is that of the country of residence of the will’s author, not that of their nationality, unless the will specifically states the contrary.

In summary, this means that if an English or Welsh citizen resident in Spain with a Spanish will wants British law to govern the disposal of their assets, they must specify this desire in their Spanish will. Otherwise Spanish inheritance law will govern the disposal of their assets, including the legal right of surviving spouses and children to a percentage of your estate.

Do I need a Spanish will?

If you have assets in Spain it is advisable to have a will drawn up regulating the disposal of these assets.

It is not necessary, but it will make the path far smoother for your heirs if you plan this subject carefully.

Only two things in life are certain – taxes and death. Here at Cervantes Alarcón, we can advise you on both!

How do I adapt my will?

You must first decide what inheritance regime you want to apply to your estate: that of your nationality, or that of your country of residence at the moment of your death.

It is not always straightforward to decide this and you should consider the consequences carefully.

You need to weigh up your personal circumstances such as:

  • your marital status,
  • your number of heirs,
  • any surviving children or grand-children,
  • where the bulk of your estate is located,
  • the advantages and disadvantages of Spanish law versus your national inheritance law,
  • the desire to prioritise your partner over your children, etc.

Cervantes Alarcón Consulting is happy to discuss your requirements with you and offer advice upon your tax situation. We can also draw up the documents and have them notorised for you in accordance with Spanish law.

Is my will valid?

If your current will was issued before August 17, 2015 (which was the cut-off point defined in the EU decree mentioned above), it continues to be valid but unless you have mentioned your desired inheritance tax regime, your will is to be executed under the inheritance law of your country of residence when you die.

This can cause conflicts when the law of inheritance runs contrary to your personal desires. For example, in Spain your children and partner have certain automatic rights (known as the legítimas) to the bulk of your estates. These rights may cause portions of your will be invalid.

You should revise your will to ensure it is current, up to date and in accordance with EU and national law.

If you have a Spanish will and just want to ensure it is valid, most Notary offices will be happy to reassure you on this point.

If you wish to make changes to your will, you should consult with a professional advisor who can compare your national law with Spanish inheritance law and advise you as to the best course of action.

Contact us for an appointment.