THE WILL OF A NON-RESIDENT IN SPAIN

It is common for non-resident foreign citizens who own property in Spanish territory to have doubts about making a will. Making a will in Spain or in the country of origin? Which is more practical and which is better for the heirs?

Undoubtedly, for foreigners who are not resident in Spain, the option of making a will in Spain is more convenient and involves fewer complications for the inheritance procedures. But let us now analyse the advantages and answer the most common questions regarding a non-resident’s will in Spain.

What are the advantages for non-resident foreigners of making a Will in Spain?

Certainly, non-resident citizens in Spain have the option of making a Will before the competent foreign authority, and it will be a completely valid Will to bequeath assets held in Spanish territory. But is this the most convenient? Let us see.

Will of a foreign national granted in his or her country of origin

When wills are granted by foreigners in their country of origin, they involve more paperwork, time and money for the heirs when opening the inheritance in Spain. Why? Because the heirs must legalise the will, translate it, apostil it and prove that it is indeed the last will of the testator.

This is without taking into account any other complications that may arise in the succession. Furthermore, it is important to know that in Spain there is a maximum period of 6 months to settle and pay the Inheritance Tax. If the heirs do not comply with the tax obligations within this period, they will also face tax penalties.

Advantages of a Will in Spain for non-resident foreigners.

For non-resident foreigners, it is more practical to make a Will in Spain for assets located in Spanish territory. This provides the following advantages:

• It greatly speeds up the processing of the inheritance by the heirs.
• Prevents problems that can be caused by poor interpretations of wills made abroad

• It represents less associated costs, because the legalisation process is not required.

Furthermore, it is important to know that wills granted in Spain do not affect other assets that the non-resident foreign citizen owns in his/her country of origin or residence.

Which law applies in the succession.

The testator has the power to choose which law will apply to his succession: the law according to his nationality (national law or personal law) or the law applicable in the State of his habitual residence (place where he has been stable over time). But there are conditions:

• The testator’s choice must be expressly stated in the will or by a declaration of will made before a notary or competent authority.

What happens if the testator who is not resident in Spain has two or more nationalities? In this case, the testator has the option of choosing one of the nationalities to apply that law to his or her succession. Always assessing what is most appropriate for the organisation of his or her legacy.

When does the law of the State of habitual residence have to be applied?

Generally speaking, if no will is made or if the testator does not express his or her decision as to which law shall apply to the succession, the succession will be governed by the law applicable in the country of the testator’s habitual residence at the time of death. Irrespective of the country in which the assets are located and the nationality held by the testator. This is laid down in Regulation (EU) 650/2012 of the European Parliament.

Why is it important to know how to choose the law applicable to the succession?

It is important to know and know how to choose which law applies to the succession, because this legal regulation directly affects the succession:

• The distribution of the inheritance and the testator’s freedom to bequeath his property.
• Who the beneficiaries of the estate shall be.
• The powers of the heirs or administrators of the assets of the estate.
• The conditions of acceptance of the inheritance.
• The transfer of debts.
• The percentages of the reserved portion (part of the assets that legally corresponds to certain heirs).
• The possibility of disinheritance.

Inheritance tax for foreigners not resident in Spain

When the succession of a non-resident foreigner in Spain is opened, the heir who does not reside in Spain, but resides within the EU, must pay taxes in Spain on the assets transferred in Spanish territory, according to the local regulations of the Autonomous Community where the highest percentage of the value of said assets is located.

In the event that the heir is a resident of any other country outside the European Union, he or she must pay tax on the value of the assets in Spain, but at the office of the State Tax Agency (Agencia Tributaria Estatal).

After Brexit, heirs in inheritance of British non-residents must also pay inheritance tax in accordance with the state inheritance tax rules.

What happens if the non-resident foreigner does not leave a will?

In the event that the foreign citizen not residing in Spain does not leave a will, the inheritance law of the country in which he/she habitually resided will be applied. However, this is a circumstance that may involve more steps and more time in the recognition of the heirs and the adjudication of the inheritance.

How an international inheritance lawyer can help you

A lawyer specialising in international inheritance will assist you in the planning of your legacy, the making of the will in Spain and the processing of the inheritance between nations, in an agile and efficient manner.

He is a legal professional who knows the applicable laws both in Spanish territory and international law, so he will analyse your particular case and provide you with the most appropriate options, always protecting your interests.

At ABOGADOS MAR CONSULTORES we are experts in international inheritance, with more than 25 years of experience offering comprehensive legal advice to more than 6,000 foreign clients.

If you have assets in Spain, we will advise you and draft the Spanish Will, and if you already have a Will, we will help you to revise and adapt it if necessary. Contact us. At ABOGADOS MAR CONSULTORES we listen to you and offer you our best.