A will is a legal document made by someone who wants to give instructions of their wishes before he/she passes away. It must be made by an adult person that is free to use his/her full mental abilities and it must be fulfilled when that person is deceased. It is recommended to ask a lawyer for legal advice before you make your will.
It is by no means compulsory to make a Spanish Will, but if you are a resident in Spain or own property in Spain it is highly advisable in order to make things easier for your heirs.
The main reason to make a Spanish Will is to ensure peace of mind and know that when you pass away you will not leave your loved ones with additional stress, extra costs or numerous problems to sort out.
The European Regulation 650/2012 will be applicable to deceased EU citizens. Accordingly, concerning the aforementioned regulation, the law of succession will be that of the country the deceased had his/her habitual residence at the time of death, unless they choose expressly their national law of their own country at the time of making the Spanish Will. That meansSpanish law will govern by default the estates of all foreign residents unless a specific provision is worded in their Spanish will to avoid it.
If you are a EU citizen living in Spain your succession will be governed by Spanish Law (which is very strict and includes forced heirship rules) unless you have chosen for your will to be in accordance with your national law. Therefore, in most cases, for foreign EU residents will be advisable to draft a Spanish Will including the clause for their national law.
Anyone affected by the aforementioned European Regulation who has not signed or updated their Spanish Will accordingly, may cause devastating problems to their beneficiaries, as Spanish Inheritance laws stipulate that both descendants (children or grandchildren) and ascendants (parents or grandparents) will inherit with priority over a surviving spouse or partner. They are entitled, by law, to inherit fixed shares of the estate. So, if a resident in Spain doesn’t make a Spanish will (specifically opting that his will is governed by his own national law) his children can challenge successfully his existing Spanish will leaving his wife/husband exposed and unprotected to protracted litigation.
The European Regulation entitles you to choose freely the Inheritance law of your own nationality in lieu of Spain’s compulsory heir rules which applies by default if your residency is in Spain at the time of your death, BUT you cannot choose what Inheritance Tax Laws apply to your Spanish estate. As a rule of thumb, any beneficiary, whether resident or non-resident, inheriting assets located within Spanish territory has to pay Spanish inheritance tax. You cannot opt out or choose your own national Inheritance tax laws on inheriting assets located in Spain. Your heirs will have to pay Spain’s Inheritance Tax.
If you wish, ALTEALEX lawyers will draft your Spanish Will in double column, English (or your own language) and Spanish for you to fully understand it.
Advantages of a Spanish Will for non-residents
- A Spanish Will can save your heirs both money and hassle after you pass away.
- A Spanish Will may help your heirs mitigate their tax bill (avoiding penalties for late payment).
- Spanish wills are stored safely at no extra charge.
- Spanish wills are signed before a Notary Public and are completely secure.
- A Spanish Will is exclusive to your assets located in Spain (it does not affect any other assets in your home country).
- A Spanish Will can be governed by your own national law. Bequeath your assets to whomever you please avoiding pesky Spanish forced heirship rules (providing your national law allows it).
- Spanish wills can be worded in English or any other language
Remember: a Spanish Will can save your heirs considerable time, money and hassle and vill avoid fines, surcharges, interests for late payment of inheritance tax, expensive sworn translations, legalization of foreign documents to make them executable in Spain and lawyers fees.