Wills for non-resident: inheritance of foreigners in Spain

29 de March de 20170

Wills granted in their country of origin by foreign citizens with properties in Spain are valid, although their heirs must legalize them, prove that it is the last testament granted, translate and apostille them.

This can take time and more costs for the heir, especially if the inheritance presents some complication, and it must be taken into account that in Spain the term to liquidate the Inheritance Tax is six months from the death, after which Tax penalties are imposed.

For thesereasons it may be more practical to make a will in Spain in relation to the assets located in this country.

The European Regulation No 650/2012 of 4 July 2012, on successions does not apply in Britain and Ireland, but if a British or Irish citizen are residents in any country signatory of this regulation, including Spain, the applicable law to their succession will be the one of the habitual residence of the testator and not his nationality, unless otherwise is stated in his/her will. That is, the testator must state in his testament what rule he wishes to apply to his succession, or will be applied, if he is resident in Spain the Spanish rules, among them, those relating to legitimate obligations in favor of the children.

It is advisable to grant a will in which a clause specifying the applicable law is included, for example, in the case of the British, personal law, which allows total freedom of testing.

What needs to be done to adapt a will to the European Regulation?

In the first place, it must be decided which law is desired to apply to the succession itself: The law of habitual residence upon death or the law of the state of its nationality at the time of making the election or at the time of death.

In order to carry out this election, you must assess your personal circumstances such as marital status, the existence of descendants, children or grandchildren, where your property is located, the greater or lesser freedom to organize the succession in the law of your nationality, costs for heirs, the desire to prioritize the spouse in front of the children, etc.

If the will has been granted prior to August 17, 2015 (date of entry into force of the EU Regulation), the will remains fully valid, but if you have not chosen any of the laws mentioned above, the EU Regulation provides as Law applicable to the entire succession the one of the State in which the deceased person had his habitual residence at the time of death. And it is noteworthy that under Spanish Law restrictions exist on freedom of disposition of property upon death for the children, called legitimate (the law reserves a portion of the inheritance in favor of children), which can lead to distort the will of the Testator, if he wishes his spouse to benefit more than his children, or if they inherit after the spouse, or only inherit one of them, for example.

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