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Spain - Wills

Expats who die in Spain with no will are subject to Spanish laws, particularly regarding compulsory heirs. Expats who are living in Spain and have a will are normally permitted to dispose of their estate according to the laws in their home country. If an expat has been in Spain for a long time it may be a requirement to have a legal domicile in their country of origin to ensure that this is the case. Expats should not be concerned that Spanish law will override their wishes if they have made a will. If there is any dispute then Spanish law will prevail.

The law of compulsory heirs (ley de herederos forzosos) in Spain ensures that the surviving spouse is automatically entitled to all assets that were acquired before the marriage took place, half of the assets that were acquired during the marriage and any personal gifts and inheritances made directly to them. If the deceased has children the rest of the estate is divided into three sections. One third is left to the children. No matter how many of them there are, this third is divided equally between them. Another third is also destined for the children, but the benefactor is able to determine how this is divided. The property passed on in this third cannot be disposed of until after the surviving spouse has died. The final third of the estate can be passed to anybody. If there are no children then surviving parents of the deceased are entitled to that particular share of the estate.

There are several different types of will in Spain. The regulations regarding each must be adhered to otherwise they can easily be declared null and void. It is not compulsory to have a will in Spain, although it is recommended. If the will is issued in another country then it would be necessary to wait for probate to take place there before proceedings can begin in Spain.

An open will (testament abierto) is the most common type of will used. It is not essential to go to a lawyer for this although it is recommended. A notary is able to draw up this type of will and three witnesses are required. The witnesses and the notary are required to sign the will and the person who is having the will drawn up will be given a copy. Another copy is registered with the general registry of wills located in Madrid. The original is kept at the office of the notary and will be written in Spanish, although a translation can be obtained.

A closed will (testament cerrado) is one where the contents are not known to anyone apart from the testator and the lawyer. The will is sealed in an envelope which is then signed by two witnesses and the lawyer himself. The will is then registered in the same way that an open will is.

The third type of will is known as a holographic will (testament olografo) and this is created by hand by the testator or recorded orally. A written version needs to be signed and dated and legible. There is no requirement for witnesses and the testator is able to register the will themselves with the central registry in Madrid if they so wish. An oral will must have five witnesses who then need to testify before a notary about the wishes of the testator. From this testimony the notary will draw up a written will and will certify it.

It is not usual to have an executor named separately in a Spanish will, although it can be done. Ensure that the executor speaks Spanish and if you appoint a lawyer to do this job they are able to charge up to 5% of the value of the estate as a fee. Beneficiaries of an estate must have either an original copy or an authorised copy of the death certificate before the estate can be processed. Any inheritance tax bill needs to be cleared within six months of the date of death although extensions can be applied for. Assets are not officially released until the inheritance tax bill is paid. When an estate is being processed in Spain it can take some time to complete.

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