Spanish inheritance law is decidedly different from the laws of the US and the UK.
- Children have a statutory right called legitima to a big part of the estate. They cannot be disinherited or excluded except in very rare circumstances.
- Surviving spouses do not automatically inherit the holiday home foreigners often purchase in Spain.
- Spanish wills are drawn up in a different form and probate can get very complicated.
Overview of Spanish Inheritance Law
Children have a very strong position in Spanish inheritance law. The basic rules and laws are contained in the Codigo Civil, which came into force in 1889 iand is still applicable in the modernised version.
It gives children a compulsory right to the biggest part of the estate of a deceased parent. This right can only be taken away from them and their legitima be overruled, if the child in question has committed a serious criminal offence against the parent such as armed robbery or a murder attempt. It can easily be seen, that such cases will be very rare.
Likewise, the surviving spouse has a right only to part of the estate together with the children. A foreign property owner who has for instance acquired a holiday villa or apartment, often in joined names with a spouse, may wish that the property goes straight to the surviving spouse and not to the children. The only way to achieve this is to make a Spanish will.
How to Make a Spanish Will
Spanish law does recognise a hand-written will, but the formalities are very strict and a foreigner will not know about them. Additionally there is the problem of language, witnesses and, in the case of demise, how the handwritten will can be probated. This involves the court, translators and often legal experts, which alone shows the problems, costs and time the probate of such a will requires.
The best and easiest way to ensure that a valid Spanish will which reflects the wishes of the testator and complies with Spanish law is to make a testamento abierto before a Spanish notary public. The notary public plays an important role in Spanish legal life, not only with the acquisition of a Spanish property but also with the making of a valid will and its execution.
In practice, the Spanish lawyer will meet with the client, draft the will and then present it to the notary where the document will be checked, copied onto numbered paper and executed in the presence of the notary and the necessary witnesses whom the notary will often provide.
A valid Spanish will, executed in this form, will include the crucial clause that the testator has taken care of the legitima in a separate will made in the country of origin and that the Spanish will is restricted to his or her Spanish assets, be they real estate, chattels or money in the bank. The will is written in two columns, one in Spanish and the other in the testator language and an interpreter will be present and confirm a valid translation with his signature.
The notarial will has the added advantage that the notary will lodge a copy with the Registro Central de Ultimas Voluntades in Madrid.
Probate Procedure In Spain
Any probate procedure starts with the application for a certificate from the above register to see, if the testator has made a will. The notarial testament will of course show up and the beneficiaries can proceed with their probate without delay. Again, this is done by the notary in what’s called Escritura de Acceptacion y Adjudicacion de Herencia. Once this document has been executed and death duty, if applicable, has been paid, the beneficiary will be registered as the new owner in the appropriate land registry.
The foreign will has no bearing on this procedure and probate will be dealt with in the deceased’s country of origin.
Considering the problems which can occur, not to mention the time and possible costs, it makes great sense and gives every foreigner owning property in Spain peace of mind to make the effort and pay the small fees to execute a valid Spanish will at a notary’s office.