Spanish inheritance laws and why you should have a will

If you are planning to move to Spain, or already living in Spain, you should think about writing and registering a will. It is important to understand that Spanish law on inheritance may be very different to your home country. If you are an expat resident in Spain or a non-resident with assets in Spain (e.g. a property), your assets will be disposed of according to Spanish law if you do not have a will. Inheritance law is treated on a national and regional level, so it is important to understand both to avoid any unexpected surprises such as the nationwide Law of Obligatory Heirs. In this article, we will explain the main areas surrounding wills and inheritance in Spain and we advise you to seek professional legal advice on how to best plan your estate.

Inheritance law in Spain

Spanish inheritance law enforces restrictions on how you can distribute your estate. The most prominent rule is the nationwide forced heirship law. This effectively splits up the estate into three equal parts and determines how each part must be distributed amongst the heirs. However, if the deceased was married, his or her spouse would keep 50% of all property they owned together. The remainder will go towards the estate which will be split into three equal parts and distributed according to Spanish law:

• First 1/3 - Divided equally between surviving children, natural or adopted.

• Second 1/3 - Divided between all the surviving children, but the distribution can be equal or unequal according to the instructions in the will. However, the Spouse will retain a life interest - usufruct - in this part of the estate and the children will not inherit these assets until the spouse dies.

• Final 1/3 - This is the only part of the estate that can be distributed freely without any restrictions.

It is advisable to create a Spanish will if you have remarried and have step-children or family members you need to include who are not protected by Spanish law. If the deceased was receiving a Spanish pension at the time of death or had a right to one, the spouse or dependant children could claim up to 70% of it.

Under Spanish law, when there are no children to inherit the estate the deceased's surviving parents have a claim to part of the estate. If the deceased's spouse still lives, they can claim one-third of the estate and if not, 50%. In the case where the parents do not live but the grandparents do, they would have the right to that same part of the estate. Finally, if there are no children, parents, grandparents or spouse, 100% of the estate can be left to anyone by means of a will registered in Spain or abroad. Spanish law gives prevalence to consanguinity over affinity.

Although inheritance law is nationwide there are slight differences from region to region, such as the order of consanguinity in relation to the spouse. Additionally, inheritance tax is not nationwide and varies considerably from one autonomous community to another. To understand more about inheritance tax please read our article on Taxes for retirees. As such, we recommend seeking professional advice to clarify each case.

If the deceased has arranged a Spanish or international will stating that the laws of his or her home country should be applied, then no aspect of Spain's inheritance law will be considered. This includes Spanish and worldwide assets.

How do you dispute a will?

It is not common for wills to be challenged or disputed in Spain. This is mainly due to the inheritance laws favouring consanguinity. But there may be reasons a will needs to be contested and there are certain situations when a will can be contested. They are as follows:

1. Fraudulent actions
2. Lack of testamentary capacity of the testator
3. Being left out of the will contrary to the legal requirements of Spanish law
4. Not being fairly considered in the will
5. The deceased was forced or pressured against his or her wishes
6. Negligence on behalf of the administrator
7. Invalid will - it was incorrectly written

The statutory limit to dispute a will is 4 years.

What is the procedure when there is no will?

If no will has been registered by the deceased expat in Spain this can be the beginning of a very lengthy and burdensome process. Spanish law requires the inheritance process to be completed within 6 months of death. Hence it is advisable to contract a lawyer to assist in the process. To claim someone's Spanish assets you will need to apply for a grant of probate.

This can generally be applied for in your home country but needs to be translated and legalised for public notaries in Spain. You will be required to collate a long list of documents such as death certificates, marriage and birth certificates, a list of assets, up-to-date bank statements, and passports among many others. All of which, must be translated and legalised for Spanish public notaries. We recommend that you consult a legal expert on all the necessary documents you need to claim the inheritance.

Rejecting an inheritance in Spain

Heirs may decide to reject an inheritance for any reason. It is common for heirs to reject an inheritance when debts are attached to the assets or when they are unable to pay the inheritance tax.

However, there does exist a way to avoid rejecting the inheritance and it is referred to as beneficio de inventario - profit of inventory. This enables the heirs to receive their inheritance after the creditor's debts have been settled. This is a cumbersome process and we highly advise contracting legal assistance to carry out this procedure.

Unclaimed Inheritance in Spain

Unclaimed inheritance will be passed to the state if one of these three situations occurs:

1. There are no legal heirs
2. The inheritance has been rejected by all the heirs
3. The inheritance has not been claimed

Writing a will in Spain

Due to Spanish inheritance law, wills in Spain are not compulsory. As mentioned previously, Spanish law will respect a foreign will if it relates to assets in Spain. However, these wills must be translated and legalised in Spain before they can be enforced. This can sometimes be more expensive than writing up a Spanish will. A Spanish will may also save time as a foreign will may require a grant of probate to be issued. This is worth considering when the time period to claim is only 6 months from the date of death to avoid fines from the Spanish tax office.

Requirements for writing a will in Spain

Spanish law requires that certain conditions are met for a will to be valid. These conditions may vary slightly from region to region but will be determined by your main residence. However, the following conditions must be met for the will to be valid:

• The identity of the testator must be proven
• The testamentary capacity must be proven
• You must be over the age of 14 or 18 in the case of holographic wills
• Your will cannot be delegated to another person
• Joint wills are not permitted

There is no limit to how many wills can be created or revoked. When you write a new will the previous one is automatically revoked. All wills that are signed before a public notary will be registered in the National Registry of Last Will and Testaments (Registro Central de Ultimas Voluntades). The last one to be registered will be considered valid.

The most common types of wills in Spain

There are several types of wills in Spain but the most common ones are as follows:

1. Open Will: This is the most common type of will in Spain. The will is prepared by a public notary according to the legal requirements and must be signed in front of two witnesses and the public notary. It is then registered it in the national registry.
2. Closed Will: This is a will which is normally prepared secretly but with the assistance of a legal expert to ensure it meets the legal requirements and the sealed in an envelope. This envelope is signed by a public notary and two witnesses and then registered in the national registry.
3. Holographic Will: This will is the simplest and the cheapest way of creating a will in Spain but it is also the easiest to challenge and the hardest to execute. This will is handwritten and can be registered voluntarily in the national registry. When the testator dies, a judge has to authenticate the will. For this will to be enforced, the judge will need at least two of the deceased closest relatives to authenticate the testator's handwriting.

How to execute a will

In Spain, it is not necessary to employ a solicitor to administer a will. It is normally executed by a public notary. However, if the will is complicated it may be advisable to hire one, but it would be more expensive. You can find all the public notaries by visiting the official website.

How to get your estate valued in Spain

Achieving an accurate valuation for an estate is not straightforward. Naturally, cash deposits in banks and stocks and shares won't need any clarification, but property can be quite complex. The Spanish Tax Office will consider the market value of properties in alignment with benchmarks that exist to this effect. However, these benchmarks may not be an accurate representation of the property's current value within the market.

A building surveyor will be able to provide you with an up-to-date valuation and provide a financial statement to support it. If you need a non-official valuation an estate agent will be able to provide you with one. Alternatively, you can search for similar properties in the area to get a feel for the valuation before resorting to an expert.