Wills & Inheritance

Creating a Spanish will as an expat is an important step in ensuring that your estate is handled according to your wishes when you pass away. Spain has its own rules and legal framework for inheritance, and having a Spanish will in place can help avoid complications, especially in relation to cross-border inheritance issues between the UK (or your home country) and Spain.

Here’s a guide to creating a Spanish will as an expat:

1. Why Make a Spanish Will?

Avoiding Complications: If you own property in Spain, a Spanish will simplifies the process of passing on that property to your heirs, avoiding delays and confusion over which country’s laws should apply.
Choice of Law: Under EU regulations (prior to Brexit) and Spanish law, you can choose whether your estate is administered under Spanish inheritance laws or the laws of your home country (e.g., UK law). However, since Brexit, UK citizens may face some different rules regarding this, so it’s particularly important to be clear on your wishes.

2. Do I Need a Spanish Will if I Already Have One in My Home Country?

It’s not mandatory to have a Spanish will if you already have one in your home country, but it’s highly advisable, especially if you own assets in Spain (property, bank accounts, etc.). A Spanish will allows your estate to be managed under Spanish law and ensures that the inheritance process is straightforward for your heirs in Spain.

Without a Spanish will, the process of handling your Spanish assets may be complicated by conflicting laws, especially if you live in Spain part-time or have a permanent residence.

3. Key Features of a Spanish Will

Language: Your Spanish will must be in Spanish. While you can have it translated into your language, the official version is the Spanish one.
The Notary Public: In Spain, a will must be executed before a notary. This ensures the will is legally valid, and it is then stored at the central registry of notarial wills. A testamentary will can also be made with a lawyer, but it is usually advisable to involve a notary for added security and formal legal status.
Inheritance Law in Spain: Spanish inheritance law is different from that of many other countries. For example, Spanish law includes “forced heirship” rules (known as legítima) that require certain portions of your estate to go to specific heirs (such as children or spouse), regardless of what your will says. In general, these rules can be more restrictive than the freedom of testamentary disposition in some other countries, like the UK.

4. Inheritance under Spanish Law (Forced Heirship)

Under Spanish inheritance law, your estate is divided into three portions:

The “legítima” (forced portion): A percentage of your estate (typically two-thirds) must go to your children or other direct descendants. If you have no children, this portion is reserved for other family members like your spouse or parents.
The “mejora” (improvement portion): You can allocate a portion of your estate to a specific heir, often a child, to ensure they receive more than the statutory share.
The “disposición libre” (free portion): This is the part of your estate that you can freely distribute to anyone you wish—family members, friends, or charitable organizations.

It’s important to remember that if you’re a foreign national (like a British expat), forced heirship laws can apply to your Spanish assets. If you want to bypass or alter these provisions, you may need to specify this clearly in your will and consult a lawyer, especially post-Brexit.

5. Steps to Create a Spanish Will

a. Consult a Spanish Lawyer or Notary

It’s advisable to seek legal advice from a Spanish lawyer who specializes in inheritance law. They can ensure that your will complies with both Spanish law and your home country’s legal system. This is especially true if you own property in both countries or if you want to avoid complications with cross-border inheritance.
You will need to appoint a notary to witness the will. Many notaries in Spain offer services in English or other languages, but the actual document must be in Spanish.

b. Prepare the Necessary Information

Full identification documents (e.g., your passport, NIE, or DNI number).
Details of your Spanish assets (property, bank accounts, investments, etc.).
Information about your heirs (names, relationship to you, addresses).
You may also need information on your non-Spanish assets, especially if you want to have a unified will for all your property.

c. Create the Will

The notary will draft the will, reflecting your wishes for the division of your estate.
If you own property in both your home country and Spain, you can specify whether the will applies to only your Spanish assets or if it covers your entire estate.
Declare your wishes clearly regarding the distribution of your estate, including whether you want Spanish inheritance laws to apply to your assets or if you wish to use the law of your home country (i.e., opting out of forced heirship rules).

d. Sign and Notarize the Will

Once the will is drafted, you will sign it in front of the notary. It’s then filed with the central registry of Spanish notarial wills.
The notary will give you a copy of the will, and you can request additional copies if needed.

e. Register the Will

The notary will register the will in the central registry, which is important for ensuring your heirs can find the will after your passing.

6. Considerations Post-Brexit

Since Brexit, UK citizens are no longer able to automatically use EU regulations on inheritance, and this has an impact on the validity of foreign wills and estate administration across borders. As a UK national, you may need to take additional steps, such as:

Clearly stating in your will whether you wish to apply UK law (or another country’s law) to your Spanish assets, or if you prefer Spanish law to govern your estate.
European Succession Regulation (EU 650/2012) no longer applies to UK citizens. If you have assets in both Spain and the UK, it’s more important than ever to ensure that your will explicitly states how your estate should be divided and which country’s laws apply.

7. Review Your Will Regularly

As circumstances change (e.g., marriage, divorce, children), it’s essential to update your will to ensure it reflects your current situation and wishes. If you change your will, you’ll need to go through the process with a notary again.

8. Translation and International Wills

If you’re dealing with multiple jurisdictions, consider whether you need a separate international will or a bilingual will that will be valid in both Spain and your home country. If in doubt, a lawyer specializing in international estate law can guide you.

Summary of Steps:

Consult a Spanish lawyer or notary.
Prepare necessary documents (ID, details of your Spanish property, heirs, etc.).
Create the will specifying assets, distribution, and choice of law.
Sign and notarize the will.
Register the will in the central Spanish registry.
Consider updating your will periodically as life circumstances change.

Having a Spanish will can make the inheritance process smoother for your heirs and avoid the complications that might arise from different legal systems. If you’re unsure about anything, working with a lawyer who understands both Spanish and international inheritance laws can ensure your wishes are respected and your estate is handled properly.

Executor

It seems many miss appointing an executor of a Spanish will in Spain.
This is essential to know that when needed you will have a trusted executor who knows the law, speaks the language.
Your beneficiary relatives will need to be represented at meetings with the notary to accept the inheritance and also the correct tax submissions will need to be paid to the Spanish authorities.
Covered will make an agreement with the client when making the will to act as the executor.