If a foreigner, who has assets in Spain, i.e. property, dies without having made a Spanish Will, known as dying in testate, his or her estate can be disposed of under the Spanish law of compulsory heirs, or enforced inheritance. 

Spaniards are restricted by stringent laws governing compulsory heirs. One third of their estate has to be divided equally among their surviving children, another third is also to be left to the children with the testator deciding how this is to be divided, however it must remembered that any surviving spouse retains a life interest in this third. The remaining third can be divided as seen fit. If you have a surviving spouse but no children, your surviving parents have a statutory right to one third of your estate or, in the absence of a surviving spouse, half of your estate.

This division may be neither practical nor desirable to you, therefore, in order to avoid this happening, along with simplifying the procedure, it is imperative that a Spanish Will is drawn up to specifically cover assets in Spain.

If you are a British National, resident in Spain, you are permitted to dispose of your Spanish assets according to UK law, providing of course, you have a valid Spanish Will.  If assets are retained in the UK, a second Will is necessary to cover these assets. On both Wills there should be a declaration stating that your own country's inheritance law is governed by the principle of free disposition of property by testament. You must also ensure that neither Will contradicts nor invalidates each other.

There are specific rules governing the contents and form of a Will in Spain, so it must be prepared by your solicitor. The Will must be drawn up in two columns, one in Spanish and the other in English.  It must then be notarised, normally at the same time as completion takes place on the purchase, when it becomes known as a “Testamento abierto” (an open will). This is the usual form. The notary keeps the original and registers it at the Registro Central de Ultima Voluntad, which is the Central Testament Registry in Madrid. You, as the testator, are given an authorised copy. If you wish to keep the provisions of your Will secret, it is possible to make a “Testamento cerrado” (closed will). More details about this can be obtained from your solicitor.

The laws governing Inheritance Tax in Spain are extremely complex, with considerably less generous allowances for beneficiaries. These allowances are also dependent on the beneficiary’s relationship to the deceased.

We, at Guide2Granada, strongly recommend that specialist advice is taken in this area; details of both legal and tax advisors can be found in the Business Directory.