Setting up a will is essential for any foreigners who live in Spain. Otherwise, the estate belonging to foreigners who die intestate will be disposed of under Spanish law and the law regarding obligatory heirs applied. This is why a foreigner who has lived in Spain for a long time may find it necessary to create a legal domicile in his home country in order to make a will which is applicable in that country.
There are three different types of wills , each of them with its own particular characteristics: the open, the closed and the holographic will.
In many situations, an open will is the most suitable. It is not necessary to employ a lawyer but a notary, who will be responsible for ensuring that it is legal. The contents must be shown to him and to three other witnesses. The notary will give you a copy and he will send another one to the Registry of Wills in Madrid. The original one will remain at the notary’s office.
On the other hand, the closed will needs to be drawn up by a Spanish lawyer, its contents are secret and you must bring it to a notary, who signs and seals it. Finally, a holographic will (made in handwriting or orally) may be registered in the Registry of Wills. The written one is signed and dated, and when the testator dies, it must be authenticated before a judge. The oral version must be made in the presence of five witnesses, who must testify to the notary the wishes of the deceased.
Spanish law considers that a surviving spouse should retain all assets acquired before the marriage, half the assets acquired during this period and all
the personal gifts that have come directly to the spouse. The assets remaining will be disposed under the Law of Obligatory Heirs ( Ley de Herederos Forzosos). This law determines that one third of the assets must be left to the children in equal parts, another third must also be left to the children (however, the testator decides how it should be divided) and the final third can be freely disposed of.
Either Spanish lawyers or notaries abroad can draw up Spanish wills
Is an Executor important?
An executor may be appointed, but it is not usual to do so in Spain because taxes would increase in this case. However, you can employ a lawyer as your executor, but he would charge a maximum of 5% of the estate’s value. Your beneficiaries in Spain must produce an original death certificate, but, if you die outside Spain, a foreign death certificate must be legally translated in order for it to be valid in Spain.
Inheritance taxes must be paid before the release of the assets to be inherited in Spain; this is why beneficiaries sometimes need to borrow some funds to pay the tax before they receive the inheritance. Finally, you should keep a copy of your will and your lawyer or executor must keep another one. It is not recommended to leave it in a bank deposit box because it is sealed for a period of time when somebody dies.