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7 answers to 7 questions – making a Spanish will

Published 23/02/2011

7 answers to 7 questions – making a Spanish will

It’s a difficult but very important subject. We recommend to all our clients that at some point they make a Will in Spain, even if they have made provision in their home country. Here we list some frequently asked questions to help you take that step forward when contemplating making a Spanish will.

I have a will in Britain. Do I need a Spanish will too?

In theory, a Will made in your home country covers your world wide assets. However, on your death applying this Will in Spain will incur extra costs and take time. Your relatives will need to involve an Official Translator, the Foreign Office and Lawyers before the inheritance procedure can begin. If you make a Will in Spain it will make the process simpler for them later and sets your mind at rest now.

I understand that there are strict rules in Spain about inheritance?

There are. But these apply only to Spanish nationals or foreigners living permanently in Spain who have not expressly chosen their national laws in their Wills. Your nationality determines the rules you have to follow. In the UK and Ireland the Law allows you to decide who you want to bequeath your property to. As a national of these countries you can choose whoever you want the inheritor to be.

Do I need to involve a notary?

For a Spanish Will to be legal in Spain it must be signed before the Public Notary. You need a translator to help with this.

Can I make my own Spanish Will?

In theory you can, although you will need to make arrangements for the signing at the Notary office. Be aware that when making a Spanish will the notary will only advise you on legal issues. They will not provide you with information or advice about inheritance tax or the advisability or potential complications of any arrangements you wish to make.

If I don’t make a Will in Spain won’t my property just go to my next of kin?

Property transfer when you die is not automatic here in Spain. Whoever is to inherit your property has to pay inheritance tax on it before the Deed of the property will be handed over. There are procedures to put in place including collecting, legalising and translating several documents. Certificates have to be acquired to give to the Spanish Notary before the Title Deed can be transferred.

Can making a Spanish Will reduce the amount of inheritance tax my family will have to pay?

As with most taxes, there are ways of reducing the amount to pay, legally. It is beneficial to discuss your plans with someone who understands the inheritance tax system here in Spain. For example, who you choose as your inheritor can make a difference as to how much tax they have to pay. If they are under 21 and a close relative they will pay less tax. The more close relatives you choose to leave your property to the less inheritance tax overall that will have to be paid. Each inheritor has an allowance, the more inheritors the greater the cumulative allowance.

What is the Right of Accrual?

When making your Will in Spain you can choose for your beneficiaries to have either Right of Accrual or Right of Representation. Your choice will decide what should happen to anything you leave to them in the event that they are not able to inherit themselves.

The right of accrual means that anything you leave will be added to the portion of the other inheritors if something happens to one of them. For example, if you have three children and are bequeathing to all three of them and one died before they were able to inherit, then his / her portion might be divided between the remaining two.

Alternatively, you could choose the right of representation. This will mean that the descendents of your intended heir will be eligible to inherit instead.

It’s certainly not straight forward, which is why we recommend that you make your Spanish Will in good time and don’t bequeath problems along with your property.

Marina Lorente

Marina Lorente
Lawyer
lawyers@abacoadvisers.com



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