Making a Will

Making a Will in Spain

By Making a will someone who is a resident in Spain can avoid their inheritance going to the inheritor designated by Spanish law who is known as the legal inheritors or «herderos abintestato».

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

Once the succession is opened ( it will be opened on the day of death) the corresponding beneficiaries will be considered heirs and Spanish Law will be applied and so heirs will be liable for all the existing debts , not only with the inherited assets, but with their own assets unless they ask for “beneficio de inventario”.

If there are more than one inheritor, they will inherit by equal parts and will need to share out the estate by a joint agreement ( also with the surviving partner if any). If an agreement is not reached they will face court proceedings

If you are a resident in Spain and you are happy for you 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 for 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.

The will can be drawn up in the form established by Spanish Law or in any of the forms allowed by the nationality, domicile, residence of the testator or the place where it is drawn up, or the place where the immovable assets are located.

In Spanish law a Notarial Testament is most common but others are also possible, although not necessarily advisable, such as the testament in imminent danger of death and unfortunately for these days a Last Will in times of epidemics and a testament written directly by the testator ( The Testamento Ológrafo)

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, so the testator can not name an heir for his or her Spanish assets and an heir for other assets. If the testator wants to dispose solely of some assets, maybe the better way is ordering a legacy in the will.

-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.

.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.

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