Making a will in Spain

by Nick Auvache 

It is often said that there are two certainties
in life – birth and death. We are not given much of an opportunity to plan the
first of those events but we have all our (hopefully long) lives to plan for
the second. For those of us who have assets in more than one country is
especially important that we plan ahead by making a will well in advance. This
can be done quite easily and cheaply. Unless the circumstances are very
complicated a will or testamento can be drawn
up without a lawyer but it will normally need to be checked by a notary. One
copy will then be sent to the Registro Central in Madrid and another copy held at the notary’s office.
If this process is completed without a lawyer it should cost between €60 and €70.

In Spain the Spanish law of succession requires
at least two thirds of the estate (possibly including a property or part of
one) of the deceased to be divided among his or her issue when a will is made.
Where no will is made the whole of the estate would be divided equally among
the surviving children. This bypasses the spouse altogether although if the
estate concerns a property then the surviving spouse would enjoy usufruct
of the property, basically meaning that the widow(er)
retains the right to live in the property for the rest of her/his life or until
the property is sold (with their permission).

This may come as a surprise to many foreign
residents, especially English people who are used to disposing of their assets
as they wish, but it should also act as a sober warning to the complacent.
Generally speaking English law grants UK citizens the right to will their property as
they see fit, however this right does not necessarily extend beyond the borders
of the UK and thus specific provision will need to be made by UK citizens in relation to their assets and
property abroad.

Spanish citizens are unable to avoid the law of obligatory
heirs thus ensuring that their estate remains in the family for ill or for
good. This also applies to foreign citizens who have assets in Spain unless they make a will. Problems can arise
especially in the cases of same sex-relationships or unmarried couples where
the surviving partner may find himself or herself in a difficult position,
having no automatic entitlement to the deceased partner’s estate possibly
leading to a situation where the surviving partner finds himself
or herself homeless. Even in the case of married partners who are UK citizens, the surviving spouse of the deceased
would only be entitled to half of the Spanish estate if no will was made to
state otherwise.

Therefore the importance of being clear about
ones intentions is vital to the surviving relatives. Although in theory the
Spanish law of obligatory heirs should be applied to all those who have
assets in Spain, article 9 of the Spanish Civil Code allows a foreign property
owner to dispose of his or her Spanish assets according to whichever country
they are citizens of (as distinct from residents). Individuals would have to
check what the specific law was with the authorities in their own country but
in the case of the UK, English law (but not Scottish) permits “free
disposal” of assets. This means that English, Welsh and Northern Irish citizens
can will their Spanish property to whomever they see fit. Most advisors state
that the best way to do this is to make two separate wills, one in the UK concerning assets just in the UK and another in Spain concerning assets and property just in Spain. Even though Spanish law requires the worldwide
assets of official Spanish residents to be considered under Spanish inheritance
laws, in practise the Spanish authorities do not question the terms of their
wills. The authorities are far more concerned with the issue of Inheritance
Tax, another area that we intend to tackle in a future article.