How to plan your will and estate in Spain

Spanish wills and estate planning

A significant number of foreign residents in Spain neglect to create Spanish wills, a decision that could lead to their assets being distributed according to Spanish inheritance regulations.

It is highly recommended that expatriates draft and officially register their wills within Spain if they wish their possessions to be handled according to their personal desires and in accordance with the legal framework of their home country.

Although it is not legally obligatory for foreigners to make a will in Spain, the absence of one will mean that Spanish inheritance law will automatically govern the distribution of assets. This is often perceived as a restrictive legal system, as it mandates that a substantial portion of the estate must be passed on to specific family members.

Generally, a non-Spanish individual residing in Spain has the right to determine the disposal of their Spanish assets based on the laws of their native country. This guide addresses the crucial aspects surrounding wills and estate matters in Spain, covering topics such as:

Do I need a will in Spain?
Spanish inheritance law
Inheritance Law on Pensions in Spain
Foreign inheritance laws applicable in Spain
Rejecting Assets in Spain
Can I contest a will in Spain?
How does inheritance law work if there is no will?
Unclaimed inheritances in Spain
Making gifts during one's lifetime
About wills in Spain
Requirements for creating a will in Spain
Types of wills in Spain
Creating a Spanish Will
The procedure for writing a will in Spain
Appointing executors for Spanish wills
The execution of a will and obtaining probate in Spain
Probate procedures when there is no will
Valuing an estate in Spain
Spanish inheritance tax
Advice for planning your Spanish estate
Useful resources

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Do I need a will in Spain?

Industry estimates suggest that a considerable majority, exceeding 50%, of non-Spanish property owners in Spain have either not made a will in Spain or have failed to update their existing wills to reflect their current wishes. The proportion of British owners with Spanish properties in this situation appears to be even higher, although concrete figures to support these estimations are lacking.

A Spanish will serve to formally document all your various assets located within Spain, thereby simplifying the process of bequests and legacies for your beneficiaries. When drafting a will in Spain, it is advisable to include: funds held in any Spanish bank accounts, real estate, life insurance policies in Spain, shares in both publicly traded and private companies, and any tangible personal belongings you own, such as vehicles or jewelry.

Foreign nationals living in Spain have the right to manage the distribution of their Spanish assets according to the legal framework of their home country. Consequently, foreign wills are considered both valid and enforceable. However, they must be officially translated into Spanish and legalized by a Spanish consul (or have an apostille applied where applicable). For citizens of EU member states, the inheritance will be governed by the law of the country where the deceased was residing at the time of death, unless the deceased specifically chose their national law instead.

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 their 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.

Read our detailed guide to inheritance law and tax in Spain.

Inheritance Law on Pensions in Spain

If you are entitled to a pension in Spain, upon your death, your surviving spouse or dependent children may claim up to 70% of your Spanish pension benefits.

Finance

A guide to the Spanish pension system

Foreign residents in Spain are limited in how much of their estate they can freely dispose of, as the majority must be reserved for legal heirs. However, if an international or Spanish will explicitly states that the laws of the deceased's home country should apply, then no aspects of Spanish inheritance law will govern either the Spanish or worldwide assets in that situation.

Changes to EU regulations introduced in 2015 have enabled EU citizens living in Spain, as well as individuals from several non-EU countries, to choose whether the inheritance laws of their home country or their country of residence will apply to their estate. Furthermore, the updated rules concerning Spanish inheritance and gift tax ensure that non-residents from within the EU/EEA are treated the same as residents.

Rejecting Assets in Spain

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.

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 lacking 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.

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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.

Unclaimed Inheritance in Spain

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.

Making gifts during one's lifetime

Spanish gift tax operates on a progressive system, in which the value of the gift determines the applicable tax rate. If your net worth increases due to the receipt of a gift from a living person, you will be obliged to pay the corresponding gift tax.

Read our guide to gift taxes in Spain for more details.

About wills in Spain

Considering Spain's system of forced heirship, having a will in Spain is not a legal necessity. 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 foreign individuals can have multiple wills. These wills must be executed in separate countries, such as their home country and Spain. A will created by a foreigner concerning their Spanish assets is not invalidated simply because it does not distribute property according to Spanish law. Spanish law typically does not apply to the inheritance of property (buildings or land) in Spain by foreigners; instead, the law of the deceased's home country governs this. However, if disputes arise among the beneficiaries, Spanish law will be applicable.

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.

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 in Spain

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

Holographic will: A Spanish will that is entirely handwritten, signed, and dated by the testator. It requires authentication by two witnesses and verification by a judge.
Open will: A Spanish will made verbally before two witnesses and a notary, who then records and registers it.
Closed will: A Spanish will prepared in secret by the testator, sealed in an envelope and then presented to a notary for registration.

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

How to write a Spanish Will

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.

The general process for drafting the three main types of wills in Spain is briefly outlined below:

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.

Executors for Wills 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.

Executing a Will and a Grant of Probate in Spain

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 disagree on how to administer the estate, they can bring these disputes before a Spanish court, which may then appoint an inheritance administrator for the estate.

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.

Spain requires that the inheritance process be completed within six months of the date of death. 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 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.

Getting an Estate Valued in Spain

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.

To make things easier, it is advisable to hire a lawyer who speaks your language

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 regulations vary significantly between the different autonomous regions of Spain and are also dependent on the relationship between the deceased and the beneficiary. At the national level, tax rates range from 7.65% to 34%. Various tax-free allowances are available, the specifics of which depend on the region and the relationship to the deceased.

Check Inheritance tax in Spain: rules for estates

Tips on Planning Your Estate in Spain

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.