Making a Will

Making a Will in Spain

  • The usual process in estate planning is making a will or testament.

    In some regions of Spain with particular civil legislation (Derecho Foral), joint wills, and agreement as to succession are also permitted. They can be used by Spaniards with the corresponding “ Vecindad Civil” and by foreigners as is established by the rules of international inheritance.

    In Spanish Civil law ( in force in every place but Galicia, Basque Country, Aragón, Cataluña, Navarra and Baleares) it is only possible to use the individual testament. The testament is the disposition of property upon death, which is individual and modifiable by the sole will of the testator during his or her whole lifetime. A new will revokes any previous will, unless the testator states differently in the last one, ordering that the previous one subsists in full or in part.

  • If there is no last will, joint will, or an agreement as to succession, or if no inheritor is named in any of them, the successor will be the legal inheritor.

    If the person is a foreigner, resident somewhere which has its own regulations ( Derecho Foral) the legal inheritors will be those designated by the intestacy in foral law.

  • If you are a resident in Spain and you are happy for your assets to be distributed to the legal successor as designated under the Spanish system, there is no real need to make a will. However, making a will is still advisable for the following reasons:

    .-It is much easier and cheaper for the beneficiaries to deal with the proceedings.

    .-The testator can designate a contador partidor who will share out the estate without the need for the inheritors’ agreement and liquidate the matrimonial property regime with the surviving partner, if any.

    .-As the distribution of the assets is the main function of the will, this distribution may be done naming not only heirs, but also legatees who are treated differently regarding succession and Liability on the deceased’s debts .

    .-Only in a disposition of property upon death, as the will is, can the testator opt for the law of his or her nationality to rule the succession and by doing so avoid the application of Spanish Law.

    In the testament you can name heirs and/or legatees and appoint an executor of your will.

    So the main purposes of the last will are to name a successor and to deal with the distribution of assets. Regarding this distribution, the testator must comply with certain restrictions such as those concerning the reserved share , the reserva and the the «derecho de reversion».

    In the last will you can also appoint a legal guardian and make some other statements regarding measures to be taken with minors and Disabled People.

  • Regarding the form of the will

    The last will is by its nature a serious and formal document. It is also necessary to take into account what is ruled for international inheritance and that it mainly focuses on (regarding form) the validity of the existing will.

    In Spanish law a Notarial Testament is most common but others are also possible, although not really advisable, such as the testament written directly by the testator ( The Testamento Ológrafo). Others are ruled for really extreme circumstances in which it is not feasible to find a notary, such as finding oneself in imminent danger of death and, unfortunately applicable now, the the last will in times of epidemics.

  • Assets in different countries?

    To order your succession on Spanish assets, it is advisable to make a will before a Spanish notary. However, a will made under any of the laws listed here will be valid in Spain.

    .If it is made before a Spanish notary it will be much cheaper for the testator and definitively for the beneficiaries. If the testator is abroad it can be made before the Spanish consulate in his or her place of residence.

    If you have assets in Spain and also in other countries, you can make a will only to order the inheritance of your Spanish Assets. Previously, this was the usual advice to foreign owners as a Spanish testament allows a much easier wording and therefore a simpler registration of the assets in the Land Registry and other registries.

    NOW, those reasons still make a Spanish Testament advisable, BUT you must take into account that:

    .-The Succession is considered as a whole wherever the assets are, and the named inheritor/s is/are successor/s of the entire estate of the deceased, in equal or different shares, ( sometimes including rights not yet exercised by the deceased), so it is not advisable for the testator to name one heir for his or her Spanish assets and another heir for non Spanish assets.

    If the testator wants to bequeath particular assets, perhaps the better way is ordering a legacy in the will. Also stating that the legatee can take the legated assets directly ( so he or she can make the deed themselves to inscribe in the Land Registry or, always advisable, appointing a contador partidor to do so ( very advisable if there are other interested parties).

    -In the will the testator can choose the law of his or her nationality to rule the succession, BUT the succession can only be ruled by one law. There will be no problem if the last residence of the deceased is in an EU Member State bound by EU regulation 650/2012 ( all apart from Great Britain, Ireland and Denmark) but can be a problem if the Last residence is in a different country.

    .-As the will revokes any previous will, you must save the previous will if you want to keep it in force, stating as such in the will.

    At the time of making a will you must be aware that as you can choose the law to be applied to your succession, you can only choose one law, so you can not choose a different law to order your inheritance for your Spanish Assets from that for your foreign assets. If Spanish immovable assets are included in the succession, unless there is a single beneficiary of the estate, a public deed must be made, either by all the beneficiaries or by an executor who is known in Spain as «Contador Partidor». This executor will also be capable of sharing out the assets within the matrimonial property regime with the surviving spouse with no need to involve any of the other beneficiaries.

  • Any Questions?

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