Spain Update

Do I need a will in Spain?

Although it is not mandatory by law for foreigners to draw up a will in Spain, the absence of this document will mean that Spanish inheritance law will automatically govern the distribution of assets. This is often perceived as a restrictive legal system, as it requires a substantial portion of the estate to be passed on to certain family members.

It is therefore strongly recommended that foreigners draw up and officially register their wills in Spain so that their assets are managed according to their personal wishes.

A will serves to formally document all the assets you have in Spain, which simplifies the inheritance and bequest process for your beneficiaries. When drawing up a will in Spain, it is advisable to include: funds deposited in any Spanish bank account, real estate, life insurance policies in Spain, shares in listed and private companies, and any movable property you own, such as vehicles or jewellery.

Foreign nationals residing in Spain have the right to manage the distribution of their Spanish assets in accordance with the legal framework of their country of origin. Consequently, foreign wills are considered valid and enforceable. However, they must be officially translated into Spanish and legalised before a Spanish consul (or apostilled where applicable).

In the case of citizens of EU member states, according to the European Succession Regulation (RES), succession is governed by the law of the country in which the deceased was resident at the time of death, unless the deceased expressly chose the law of their country of origin in a will.

About wills in Spain

Considering Spain's system of forced heirship, having a will in Spain is not a legal necessity. As mentioned above Spanish law recognizes foreign wills that refer to property and assets located in Spain. However, for such wills to be enforceable in Spain, they must be officially legalized by a Spanish consul (or have an apostille affixed in signatory countries) and translated into Spanish.

This process can sometimes incur higher costs compared to drafting a will in Spain. A Spanish will can also save time, as using a foreign will from certain countries (like the United Kingdom) involves waiting for the Grant of Probate to be issued. This is an important consideration, given that the inheritance process must be completed within six months of the date of death to avoid potential penalties from the Spanish tax authorities.

It is important to note that foreigners may have several wills, formalised in different countries, such as their country of origin and Spain. A will drawn up by a foreigner in their country of origin regarding their assets in Spain is not invalidated by the mere fact that it does not distribute the assets in accordance with Spanish law.

If there is a will made in the deceased's country of origin, the law of that country also applies to assets in Spain. However, if disputes arise between the beneficiaries, Spanish law will apply.

In the case of foreign residents who have not left a will or have not specified that the laws of another country should apply, Spanish inheritance law, including the Law of Forced Heirs, will be enforced.

Spanish inheritance law

Spanish inheritance legislation mandates the transfer of your assets to your spouse and children. The Law of Forced Heirs stipulates that 50% of all joint property is reserved for your spouse.

The remaining half of the estate is divided into three equal portions. One-third is distributed equally among all surviving children (biological or adopted). Another one-third also goes to the surviving children but can be distributed equally or unequally as specified in a will.

The spouse retains the right to use and benefit from this portion (usufruct) for her lifetime, and the children do not inherit it until the spouse's death. Finally, the remaining one-third of the estate can be freely allocated according to your wishes in a will.

Creating a Spanish will is particularly recommended if you have remarried and have stepchildren, or if there are other family members you wish to include in your inheritance who receive less protection under Spanish succession law.

Inheritances of Foreigners in Spain: Which Law Applies?

When a foreign resident in Spain dies, the question arises as to whether Spanish law, the law of the deceased’s country of origin, or the law of the place where the assets are located applies to the inheritance. To resolve this matter and simplify the process for EU citizens with may have assets in different EU countries, the European Union approved Regulation No. 650/2012 of the european Parlament and of the Council, which establishes the following:

Article 21:

Unless otherwise specified in this Regulation, the law applicable to the entire succession shall be that of the State in which the deceased had their habitual residence at the time of death.
If, exceptionally, it is clearly evident from all the circumstances of the case that, at the time of death, the deceased had a manifestly closer connection with a State other than the State whose law would be applicable in accordance with paragraph 1, the law applicable to the succession shall be that of that other State.

Additionally, Article 22 regulates the possibility of choosing the law applicable to the succession:

Any person may designate the law of the State of which they have nationality at the time of making the choice or at the time of death.

Therefore, if the foreigner who passes away in Spain, where they have resided habitually, wants Spanish succession law to apply, they don’t need to do anything. However, if they want the law of their nationality country to apply, they must make a will and establish their will in that direction.

Requirements for creating a Spanish Will

Spanish succession laws outline several requirements for anyone creating a will. These requirements can vary by autonomous region; your primary residence determines which specific rules will apply to your estate. However, all wills in Spain must adhere to the following formalities to be considered valid:

The will must clearly establish your identity and your legal capacity to testate.
You must be over the age of 14, except for holographic wills, where the minimum age is 18.
You cannot delegate the creation of your will to another person.
Joint wills (where two or more people create a single will together) are not permitted.

You have the freedom to create and revoke an unlimited number of wills in Spain. Signing a new will automatically invalidates any previous ones. Wills executed before a public notary in Spain are recorded in the Register of Last Wills in Madrid. Upon your death, the most recently signed will registered will be considered valid.

Types of wills

If you decide to create a Spanish will, you will need to follow a specific format and style. For instance, the will needs to be drafted in two columns – one in Spanish and the other in your native language certified by an official translator. A solicitor or professional will writer can guide you through this process.

There are several different categories of wills recognized in Spain. The three most common types are:

Holographic Spanish will: This type of will is the simplest and least expensive to create, although it is also the easiest to challenge and takes the longest to execute. It must be entirely handwritten by the testator, signed, and dated, and can be voluntarily registered at the Spanish will registry (Registro Central de Ultimas Voluntades) in Madrid. The will's authenticity is confirmed by a judge after the testator's death.
Open Spanish will: This is the most prevalent form of Spanish will. A notary prepares the will according to the necessary legal requirements, and it is then signed by the testator and two witnesses. The will is registered with the Spanish will registry, and the testator receives a copy.
Closed Spanish will: This type of Spanish will is prepared by the testator with legal assistance to ensure compliance. It is then sealed in a signed envelope by a notary and two witnesses. The notary then registers the will.

Other less frequently used types of wills in Spain include military wills, maritime wills, and wills made by Spanish citizens in a foreign country.

Executing a Will and a Grant of Probate in Spain

Appointing an executor to manage a Spanish will is not mandatory, although you have the option to do so if you wish. Typically, the execution of the will is overseen by a notary. It is also possible to designate a Spanish solicitor as the executor, although this may involve higher costs.

You may choose to appoint one or more executors in your Spanish will. If no executor is appointed, the responsibility for executing the will falls to the heirs, as they assume the legal standing of the deceased. However, if the heirs cannot agree on how to administer the estate, they may submit these disputes to a Spanish court, which may appoint an estate administrator.

Executors are responsible for safeguarding the estate and acting as its representatives until the inheritance is distributed according to the testator's instructions. Their duties may include arranging funeral matters, paying any cash bequests, fulfilling other instructions outlined in the will, and taking necessary precautions to preserve the estate's assets.

Settlement of inheritance tax:

The general deadline is six months, with the possibility of an extension for another six months if justified. To facilitate this, your lawyer will need the following documents:

Death certificate, officially translated and legalized.
Legalized passport copy.
Tax Identification Number for Foreigners (NIE).
Power of attorney granted by the heirs.
Copies of the heirs' passports.
Birth and marriage certificates, if applicable (to prove familial relationships).
NIE numbers of the beneficiaries, if applicable.
A comprehensive list of the deceased's assets.
Up-to-date bank statements, as applicable.

If these documents were issued outside of Spain, they will need to be officially translated into Spanish and then legalized or have an apostille affixed.

Probate procedures when there is no will

When a foreign resident dies without leaving a will, his or her heirs must apply for a grant of probate within six months from the death. EU citizens can generally apply for this grant in their own country. Again, the heirs may be required to provide various documents, including those listed above, all of which will need to be legalized and apostilled as required.

A lawyer will also be able to request official confirmation from the Spanish will registry that the deceased did not have a will registered in Spain.

Can I contest a will in Spain?

While Spanish succession laws aim to minimize disputes among heirs, there are valid grounds for contesting wills in Spain.

A Spanish will can be challenged based on the following:

The will being invalid due to drafting errors or other reasons.
Being excluded from the will contrary to legal requirements.
Receiving an unfairly small share of the inheritance.
The deceased lacked the legal capacity to make a will, meaning the document was never intended as such.
Instances of fraud.
The deceased being unduly influenced or coerced into including specific provisions.
Negligence on the part of the estate administrator.

Individuals seeking to contest a will in Spain must possess sufficient evidence supporting one of these grounds. In such situations, it will be necessary to engage a Spanish lawyer to act on your behalf, who will then file a legal challenge against the will.

Beneficiaries have the option to decline a Spanish inheritance for various reasons, including the presence of debts associated with the estate or to avoid the obligation of paying Spanish inheritance tax.

Conversely, heirs can choose to accept the inheritance under a condition known as "benefit of inventory" (beneficio de inventario). In this case, any creditors must be compensated for their debts before the remaining inheritance is distributed to the beneficiary. However, this is a complex procedure, and seeking legal counsel is advisable.

How does inheritance law work if there is no will?

When a foreign resident in Spain passes away without leaving a will (intestate), Spanish civil law establishes the following order of inheritance:

Biological and adopted children, who are treated equally. If any child has predeceased the deceased, their own children inherit their parent's share.
The parents of the deceased. If they are also deceased, then the closest surviving ancestors.
The surviving spouse.
Collateral relatives, such as siblings and nieces/nephews.

If there are no relatives with a right to inherit, the estate is transferred to the state.

However, this order of beneficiaries can vary among the different autonomous regions of Spain. In some regions, for example, the spouse or registered partner takes precedence over the deceased's parents.

Any beneficiary has the right to challenge the adequacy of their inheritance in court. However, specific legal procedures apply to such claims, so it is essential to seek legal advice.

If an inheritance remains unclaimed, if there are no legal heirs, or if all beneficiaries reject the inheritance, the estate will pass to the Spanish state.

Obtaining an estate valuation

Determining the value of an estate in Spain can be a complex undertaking. While some assets, such as Spanish bank accounts or cash deposits, are relatively straightforward to value, others, like Spanish property, may require more detailed assessment. Generally, the Spanish tax authorities (Hacienda) will consider the market value of such properties, and various benchmark values exist for this purpose. However, these valuations may not always reflect current market conditions.

A lawyer can assist in obtaining an up-to-date valuation for you and provide a comprehensive financial statement. For real estate, you could also request a valuation from a local estate agent. Typically, such a valuation will consider the current market value of the property and may include a projection of potential future changes in value.

Do I have to pay Inheritance Tax in Spain?

Spanish law does not differentiate between residents and non-residents regarding inheritance tax. Also known as succession tax, this is a progressive tax that the beneficiary pays, not the estate itself.

Inheritance tax rules vary considerably between Spain's different autonomous communities and also depend on the relationship between the deceased and the beneficiary. At the national level, tax rates range from 7.65% to 36,5%.

There are various tax exemptions, the details of which also vary depending on the region and the relationship with the deceased. In many cases it is beneficial to make a donation during your lifetime. Spanish gift tax operates on a progressive system, in which the value of the gift determines the applicable tax rate.

Advice for planning your Spanish estate

Keep these additional tips in mind when planning your Spanish estate or when writing a will in Spain:

Consult a solicitor: Engaging a solicitor or tax advisor will provide you with guidance on the most suitable decisions for you and your beneficiaries, especially if you reside in different countries.
Power of attorney: Granting a power of attorney allows you to nominate someone to make legal decisions on your behalf if you become unable to do so yourself. You can decide to what extent you want them to act for you.
Gifts during your lifetime: You may be able to simplify the inheritance process for your heirs by making gifts during your lifetime. It is important to note that in Spain, recipients are taxed on the value of any gifts they receive at personal income tax rates.

Useful Resources

You may find the following links helpful regarding tax and inheritance tax in Spain:

1- Spanish Inheritance Tax, regulation for Estates

2 - Banking in Spain in 2025: A Complete Guide

3 - Having a property in Spain

Wills and estate planning in Spain