NON-RESIDENTS IN SPAIN: NEED TO GRANT A SPANISH WILL.

When it comes to non-residents in Spain, there is no doubt that it is more than known the convenience of granting a Spanish will that facilitates the procedures for the heirs at the time of decease. This recommendation is a habitual practice for all legal professionals dedicated to International Law.

Granting a Spanish will is equivalent to making an easy and cheap inheritance; quite to the contrary the not granting of a Spanish will is equivalent to a complicated and expensive inheritance.

Many clients ask us how to grant this will, approximate cost, if it is possible to grant it in their country of residence, etc. For European citizens (except Great Britain and Ireland) there is a Regulation of the European Parliament that regulates the processing of inheritances and simplifies the procedures for the legalization of Wills. However, for citizens from outside the EU, granting a will before a foreign authority involves complicating the inheritance procedures with translations, legalizations and judicial verification and validation processes. That is why it is convenient that the Spanish is granted before the Spanish authorities, either a Spanish Notary or before the Spanish Consulate.

What must this Will include? What will be the law to be applied to my succession?

This will must indicate that it refers exclusively to the assets that are in Spain. Likewise, it must also specify which law is applicable to the inheritance. In this regard, you may well choose the Personal Law, that is, the national testator’s law; or by the Spanish Law. The national law or personal law is the one that determines the way of making a will, the legitimate ones, etc … The processing of inheritance, for assets in Spain, must always be carried out under Spanish law.

It is important to clarify that the regulations of Private International Law in relation to the law that governs successions, changed after the entry into force in August 2015 of the EU Regulation nº 650/2012. For example, up to that date, the succession of a Spanish citizen residing in Sweden who died without issuing a will was subject to Spanish law on the basis of their nationality. However, from the 17^th of August 2015 (entry into force of the Community Regulation) if such Spanish citizen dies without granting a will, his inheritance will be governed by the law of his habitual residence at the time of death: that is, the Swedish law.

However, the Community Regulation allows the testator to choose the law that he wants to be applied to his succession, stating it explicitly in a will. This possibility exists even for those citizens who hold double nationality and with independence whether the will is granted before a Notary or before the Spanish Consulate.

But since the rules on succession differ from one country to another and sometimes are completely different, it is for this reason that it is recommended by legal professionals that they be involved in a succession procedure from  the 17^th of August 2015 that they contact a local lawyer specialized in the matter.

What happens if I then make another will or if I already have a will in my country of residence?

The Spanish Legislation establishes that only the last will is valid and that a Will cancels the previous one, this is the reason why it is recommended to be very careful if any other Testamentary Provision is granted in the country of residence after the granting of the Spanish Will. In case of granting such Testamentary Provision in your country of residence, you should be careful that the assets existing in Spain are excepted from the will, that is, that Spanish assets are not included in said foreign will.

That is, to avoid future conflicts with the inheritance, since at the time of processing the inheritance the Spanish authorities will request a certificate that a will has not been granted after the Spanish Will in the country of residence, or in the country of nationality of the grantor.

Who writes the will and what is the cost?

The Spanish will is prepared by the lawyer specialized in the matter, in double columns in the Spanish language and the language of the testator. This will should be subsequently revised and signed before the chosen Notary.

The cost of granting a Spanish will is usually quite cheap and the testator has to pay two expenses: Fees of the intervening Notary and the Legal fees. The total cost does not usually exceed 200 Euros (VAT excluded), normally corresponding to 80 Euros (VAT excluded) the Notary fees and 100 Euros (VAT excluded) the Lawyer’s fees for the drafting of a will, in most of the cases.

On the other hand, and in order to guarantee the administration and care of assets in Spain, this Office recommends granting a General Preventive Power of Attorney and / or a Living Will, by which a person is appointed to administer the assets in the event that, due to any circumstance, the grantor’s mental faculties deteriorate and he is not able to decide for himself, so the attorney will be useful before a possible judicial declaration of incapacity and can advise the Judge on the person to be appointed as Guardian and the person who can decide on the life of the grantor (medical treatment, life extension, etc…).

The lawyers of the team ABOGADOS MAR CONSULTORES are specialists in International Law and specifically in international inheritances, wills, inheritance planning, so we are at your disposal for any consultation regarding this matter.