The Will in Spain: Legal Requirements and How to Prepare It Correctly
The will is one of the most important documents in inheritance planning, especially for expatriates living in Spain or owning property in the country. Spanish inheritance and will legislation can be quite different from other countries, so it is crucial to understand how to draft it and the legal requirements to avoid complications in the future.
Below, we explain what you need to know to draft a will correctly in Spain and comply with legal requirements.
Why is it Important to Make a Will in Spain? In Spain, as in many countries, the will is the document that establishes how a person’s assets will be distributed after their death. Spanish legislation is quite clear regarding the requirements for validity and how assets should be distributed. For expatriates, it is essential to understand that Spanish inheritance laws apply directly, even if the deceased person is not Spanish.
Moreover, in Spain, inheritance is not always distributed freely. The law establishes a system called “legítima,” which regulates a portion of the inheritance that must go to certain family members, such as children or spouses, without the testator being able to dispose of it as they wish.
Legal Requirements to Draft a Will in Spain For a will to be valid in Spain, it must meet certain legal requirements:
- Testator’s Capacity The testator must be over 18 years old and in full possession of their mental faculties. This means the person must be capable of making decisions and understanding the content of the will when it is drafted.
- Form of the Will In Spain, there are several forms of will, but the most common are:
- Open Will before a Notary: This is the most common and recommended form in most cases. The testator appears before a notary, who drafts the will according to the testator’s instructions. The notary stores it in their archive, and the will is registered in the Register of Last Wills and Testaments, ensuring that it can be located after the testator’s death.
- Closed Will: The testator writes the will, seals it, and delivers it to the notary in a sealed envelope. The notary verifies the signature and keeps the document in the register.
- Holographic Will: This will is entirely handwritten by the testator, including the date and signature. However, this type of will has certain limitations and is less secure legally, as it is not registered before a notary, which can lead to more disputes.
- Open Will before a Notary: This is the most common and recommended form in most cases. The testator appears before a notary, who drafts the will according to the testator’s instructions. The notary stores it in their archive, and the will is registered in the Register of Last Wills and Testaments, ensuring that it can be located after the testator’s death.
- Witnesses In the case of a holographic will, two witnesses are required, who must also sign the document. The witnesses cannot be heirs or have any direct interest in the inheritance. In the case of open or closed wills before a notary, no additional witnesses are necessary.
- Legítima and Disposition of Assets One of the most important features of Spanish inheritance law is the concept of legítima. This is a portion of the inheritance that, by law, must go to certain family members, such as children, in a set proportion. Specifically, the legítima is distributed as follows:
- To the children: One-third of the inheritance must go to the children, regardless of the testator’s wishes. This third is distributed equally among the children.
- To the parents: If the testator has no children, the parents can inherit a portion of the inheritance.
- Spouse: The surviving spouse also has rights to the inheritance, but their share depends on whether there are other direct heirs (children or parents).
- To the children: One-third of the inheritance must go to the children, regardless of the testator’s wishes. This third is distributed equally among the children.
- The testator has the possibility to freely dispose of the remaining portion of the inheritance, which is the third of free disposition. This is where the testator can leave assets to other people or entities, such as friends, charities, etc.
- Register of Last Wills and Testaments Once the will is drafted before a notary, it is registered in the Register of Last Wills and Testaments. This register is crucial to ensure that the will can be accessed when the testator passes away. Heirs or any interested parties can request a certificate confirming whether or not a will is registered.
What Happens if There Is No Will? If there is no will, the inheritance will be distributed according to Spain’s intestate succession laws. This means that assets will be divided among the deceased’s direct relatives based on a priority order established by law. In general, children, spouses, and parents have the right to inheritance in different proportions, but if there are no close relatives, the assets may pass to the State.
It is important to note that for expatriates residing in Spain, Spanish law will govern the inheritance of assets located in the country, even if the testator is not Spanish or does not live there permanently. This makes inheritance planning even more crucial.
Tips for Preparing a Will Correctly in Spain
- Consult a Notary: It is always advisable to consult with a notary specialized in inheritances to ensure that the will meets all legal requirements and that your wishes are respected.
- Consider the Implications of Taxes: In Spain, inheritances are subject to taxes, and capital gains and inheritance taxes can vary depending on the region and the relationship between the testator and the heir. A lawyer specializing in succession matters can help optimize the tax burden.
- Draft a Clear and Detailed Will: To avoid confusion or disputes among heirs, it is important that the will be clear and specific. If you have assets in other countries, make sure to consider the international implications of your inheritance.
- Review the Will Regularly: Your life circumstances may change over time (new acquisitions, births in the family, etc.), so it is advisable to review and update your will periodically.