When a foreigner owns property in Spain, an essential question arises: is it necessary to make a will in Spain? While it is not mandatory, creating a will in Spain can be highly beneficial for non-residents as it ensures a clearer, faster, and more straightforward inheritance process. Below, we explore the reasons and process for formalizing a will in Spain if you do not reside in the country.
IS IT MANDATORY TO MAKE A WILL IN SPAIN IF YOU ARE A NON-RESIDENT?
It is not obligatory for non-residents to create a will in Spain, but doing so can prevent future legal issues for your heirs. If you have property, bank accounts, or any other assets in Spain, a will drawn up according to Spanish law will simplify the succession process, reducing bureaucracy and potential conflicts.
BENEFITS OF MAKING A WILL IN SPAIN
- Simplification of the inheritance process: If you die without a Spanish will, your heirs will face a more complicated process. This is because the inheritance laws of your country of residence may conflict with those of Spain. Having a will in Spain resolves this potential clash of laws, making asset distribution smoother.
- Clarity on applicable laws: In the will, you can choose for your home country’s laws to govern your inheritance, provided this does not violate Spanish public policy. This is crucial for those wishing to avoid the application of Spanish inheritance laws, as Spain follows the principle of “forced heirs,” meaning certain family members have a legal right to a portion of the estate.
- Reduction in costs and time: A specific will for assets located in Spain speeds up the inheritance process and avoids the need for heirs to translate and legalize foreign documents. Moreover, the inheritance process will be quicker, allowing heirs to exercise their rights without the delays that usually accompany international proceedings.
PROCESS FOR MAKING A WILL IN SPAIN AS A NON-RESIDENT
The process for making a will in Spain is relatively straightforward and requires the presence of a notary. The basic steps include:
- Visit a notary: For the will to be valid, it must be signed before a Spanish notary. The notary will guide you on how to best structure the document according to your wishes and Spanish law.
- Choice of applicable law: If you prefer that the law of your home country governs your inheritance, this must be explicitly stated in the will. This is a common option for non-residents who wish to avoid Spanish rules on forced heirs.
- Registration in the General Register of Last Wills: After signing the will, the notary will register its existence in the General Register of Last Wills, ensuring that your heirs can easily access the document after your death.
WHAT HAPPENS IF YOU DO NOT MAKE A WILL IN SPAIN?
If you do not leave a will in Spain, the inheritance process will become more complicated. Heirs will need to present several documents, such as a certificate of last wills, and if the will is from another country, it may need to be legalized and translated, adding more costs and delays.
Furthermore, in the absence of a will, Spanish law may apply intestate succession rules, meaning your assets would be distributed according to local regulations, which may not align with your wishes. This is especially relevant for non-residents, as the inheritance laws of their home country may differ greatly from those in Spain.
INHERITANCE TAX FOR FOREIGNERS WHO ARE NON-RESIDENTS IN SPAIN
Another crucial factor for non-residents is Spain’s Inheritance and Gift Tax. This tax applies to the transfer of assets and rights when they are inherited or gifted, and the rates can vary significantly depending on the autonomous region where the assets are located. For non-residents, the tax is managed by the national government rather than the regional authorities, meaning that the reductions and benefits available to residents in certain regions may not apply.
However, since a 2014 ruling by the Court of Justice of the European Union, non-residents from the EU or European Economic Area (EEA) can benefit from the same tax reductions as residents in Spain, provided they can prove their case to the tax authorities. For non-EU citizens, the tax regime is less favorable, often resulting in higher tax payments.
It is essential to seek proper advice and plan the succession process carefully to avoid unpleasant surprises for your heirs in terms of tax liabilities.
CONCLUSION
If you are a non-resident with assets in Spain, creating a will in the country is a sensible decision that ensures your heirs will not face unnecessary complications. A Spanish will simplifies the inheritance process, reduces costs, and ensures your wishes are followed according to the applicable laws of your choice. While it is not a legal requirement, it is an efficient way to manage your estate and avoid potential issues for your loved ones.
At CPG Abogados, we specialize in assisting non-residents with the preparation of their wills in Spain. We can help you ensure that your estate planning is legally sound and aligns with your wishes. Contact us today for expert guidance.
