Making a Spanish Will to settle spanish assets after death

Spanish inheritance law and procedure is totally different to that applicable to common-law systems such as the UK, the USA, Canada, Australia, New Zealand or South Africa.

Spain and many other countries apply the system of forced heirship, therefore there are compulsory heirs. One third of all the assets held has to be divided equally among their children, another third is to be left to their children in any division, the last third can be divided as they please. 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 and is still applicable. This law gives children a compulsory right over most of the deceased belongings. This right can only be taken away from them in very extreme cases such as when they have committed a serious criminal offence against the parent such as armed robbery or a murder attempt.

The Spanish Civil Code states, under provision 9, that the assets that the foreign deceased had in Spain at the time of their death will be governed not by Spanish law but by their own national law. In your Spanish Will you would have to state that your own country's inheritance law is governed by the principle of free disposition of property by testament.

It is significant to note that if you make a Spanish Will which conflicts with your national inheritance laws it will be null and void.

There are three possible situations in which clients can potentially advertently or inadvertently find themselves in, namely:

1. Making a spanish Will for your spanish assets
2. Pass away without a Will
3. Pass away with a foreigh Will where spanish assets are also included.

Each situation has advantages and disadvantages.

As a spanish lawyer I would advise any non-resident who has a property in spain to draw up a Spanish Will, as this will avoid time, legal problems, and excessive costs for your heirs.

This can easily be prepared for you by your lawyer, who can advise you on how to express your wishes on the Will and on most matters regarding Spanish inheritance legislation.
When a person dies intestate (ie. without making a Will) in Spain, a declaration of heirs must be made in the eyes of the Law. In Spain this declaration would be made by the notary, but in UK it must be done through the court, by a Probate and after this Spain would then apply the national law of the heirs. Of course all these documents will have to be translated, apostilled and recognized in Spain, thus making the procedure quite protracted and expensive.
In the case of getting a foreign Will recognized in Spain it is a slow and expensive process for your heirs to get your Spanish property transferred to their names.

The procedure will be as follows:
(1) the Spanish Consulate in your home country must legalise a certified copy of the grant of probate, which must be translated into Spanish. The foreign Will should be translated into Spanish as well.

(2) Your Spanish Lawyer must be empowered to prepare a list of your Spanish assets in order to pay the inheritance taxes in Spain.

(3) You must obtain a legal certification that the documents provided comply with the laws of succession from your home country. This certification must also confirm that the testator had legal capacity to make a will, that the will is valid and duly proved. The Spanish Consulate shall prepare this certification.

In summary the importance of obtaining Spanish legal advice on making a Spanish Will for your Spanish-based assets cannot be overstated. Independent legal advice must be sought promptly in order to avoid leaving potential problems for your loved ones – long after you are gone!

Cathy Perez, Abogada – The Gibro Group