Spanish Wills
If you are a foreigner with assets in Spain, you should make a Spanish will. This will help avoid time-consuming and legal problems for your heirs. The Spanish testament should clearly state that it disposes only of your assets in Spain. If you have other assets in the UK you should also have a will and testament drawn up there clearly stating that it disposes only of the assets in the UK.
Spanish Inheritance Taxes are payable after 15,025€ and there is no exemption from these taxes. However, if you are an official resident in Spain, and if you leave your inheritance to a spouse, you could be eligible for a 95% reduction in the value of your property for inheritance tax purposes.
Spanish law requires that two-thirds of an estate must go to the children, as compulsory heirs. However, as a foreigner, this law does not apply to you and you will be able to leave your estate to the person of your choice. You will not be exempt from paying the inheritance taxes.
The Will
The will itself is in two columns, one in Spanish and the other in English or the language of your choice. It will be checked by the Notary Public and signed in his presence, with three witnesses. This is the most common type and is called an open will [testamento abierto]. The Notary Public keeps the original in his file and gives you an authorised copy and will send a notification to the Registro Central de Ultima Voluntad, which is the Central Testament Registry in Madrid. Each will is given a certification number and kept on file to make sure that a legal copy can always be found. If you have lost your copy contact the central registry to get a copy.
Alternatively you can make a closed will [testamento cerrado], or holographic will, hand-written by you, or a verbal will, which requires the presence of five witnesses.
Tax Planning
Your lawyer will advise you of possible legal alternatives to getting around paying the maximum tax. Here are some common solutions.
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Form a family corporation or trust, in which the family's wealth passes to the company. When a family member dies, the board is reorganised and shares transferred. This is subject to a low tax rate.
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Make a gift of your property to your heirs while you are alive, keeping the (usofructo) right to continue using the property as long as you live. However the Spanish gift tax is the same as the inheritance tax.
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Sell the property to your heir, reserving the usofructo. This is a good option if your property exceeds 60,100€, but must be done at least 5 years before your death.
Key Points
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You should make a will in Spain if you have assets in Spain.
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Following death the executors must then await the settlement in your own country first.
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The settlement must then be translated into Spanish by a recognised translator.
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Your papers can then be brought to Spain for changes in title deeds and bank accounts.
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The executors have 6 months to achieve this and failure to do so often incurs fines and interest payments.
It is therefore recommended that you have a Spanish will in order to avoid these problems.
The Open Will
You, as the person creating the will, appear before a public notary and state your will. In this case you need no one else apart from the notary and if needed a translator. The notary will then keep the will while you get a 'simple' copy. He will then send a report to the "Registro de Ultimas Voluntades" which is a registry of last wills and is located in Madrid.
Married Couples
Married couples cannot make a joint will, each person must make their personal will.
Planning an Inheritance
The authority will only take over your assets if no inheritors can be found.
If both testator and heir are residents in Spain, and the inheritance is a permanent house or home, the taxable amount can be reduced by up to 95%, the condition being the heir must continue as resident and not sell the property for 10 years.
What you should do as a beneficiary
1.When someone dies, obtain 2 death certificates (in Spanish if the death occurred in Spain) or with a translation and an "apostille" if abroad.
2. If the death occurred in Spain, decide if the deceased shall be buried in Spain or if the body or the ashes shall be sent back to his home country.
3. If the burial is to take place in Spain, get in touch with a funeral company. If the body/ashes are to be sent home, you will get assistance from your consulate.
4. Find out if a will exists in Spain by getting a certificate from the Registry of Last Wills (a notary can arrange this) and then proceed to change the title deeds.
Note:
A property cannot be sold before the heir has the deed in his name.