Making a Will in Spain
August 2015 Update: Regulation 650/2012
European Regulation 650/2012 will have on an impact on all foreign residents who live and own assets in Spain and who have made a Spanish will.
In force since 2012, the regulation introduces significant changes to Succession that may require you to make a new Spanish will. These changes will come into force as from the 17th of August 2015. Anyone affected by it that passes away on or after the said date and who has not updated their Spanish will accordingly may cause devastating problems to their beneficiaries (normally family). Please inform yourself about Regulation 650/2012 and take legal advice when making a Will in Spain.
1. Who can make a will in Spain?
As a general rule, the testator must be, at least 14 years of age, and legally capable to make a valid will.
2. Types of wills
2.1. Holographic will
Anyone who had come of age can make this type of will.
It shall be written entirely in the handwriting of the testator and shall be dated and signed by him on every page. It must be verified as genuine before a judge. It is required that the handwriting of the decedent be authenticated by witnesses, who must be the decedent’s closest relatives.
Once it is verified, the judge will enforce the will’s contents. The estate shall be distributed in accordance with the provisions of the will.
2.2. Open will
This is the usual form of will for most people in Spain. It is made before a Notary, who shall keep the original document in his files. The Notary will send a notification of the will to the Central Registry of Spanish Wills (Registro Central de Última Voluntad) located in Madrid.
The Notary may request the presence of 2 witnesses, who can also be required in case the testator is blind or illiterate.
It must be shown that a minor, a person who is blind, deaf, dumb, and the spouse and closer relatives of the testator cannot act as witnesses.
2.3. Closed will
Executing this will you will keep secret your provisions putting them in an envelope.
You shall declare before the notary that your provisions are contained in the envelope and declare whether you have written them by yourself or it has been written by a third person, also you shall declare whether you have signed it or it has been signed by a third person for you.
The notary then seals the envelope and signs it, then he files it and send a notification of the will to the Central Registry of Spanish Wills (Registro Central de Última Voluntad) located in Madrid.
This will cannot be made neither by blind nor by illiterate persons.
Every will has got a certification number in Spain which is kept on file to the Central Registry of Spanish wills (Registro Central de Última Voluntad) located in Madrid. The certification numbers of all Spanish wills are kept in this place in order to ensure that the estate neither be sold nor transferred illegally.
A legal copy of a will can always be found there. In case you don’t know whether the decedent made a Spanish will or not, or if the will is lost, you can request a certificate to the central registry under the deceased person’s name. If the will exists, the registry will provide you with the number and the name of the notary who made it in the first place,this will enable you to get a copy of the will from the notary.
The certificate can only be applied within15 days after the testator’s death.
4. Revocation of the will
To revoke a will the testator must have the same mental capacity as it is required in making one.
The provisions made in a will can be revoked even when the testator had previously declared his intention of not revoking these.
A will may be revoked by the execution of a new will, which may amend, replace or make ineffective all prior wills. It can also be revoked when the testator declares before a notary his intention to cancel or keep any of the provisions of the will. The alterations shall be made under the same conditions as in making the previous will.
If there is more than one will, only the last one made is legally valid. You can be informed about the number of wills the decedent made by requesting for a certificate to the Central Registry of Spanish Wills.
5. Nullity of the will
A will is null and void in any of the following cases:
The “joint will” with provisions agreed upon by two or more persons.
If the testator had no legal capacity to make it.
The will made by a testator who is subject to domination, fraud or duress.
When the testator designates as beneficiary a person who is unknown and cannot be identified.
When the testator designates as beneficiary a person who is not legally capable.
If the testator had revoked the will.
An olographic will is null if it is not filed before the Judge within 5 years after the testator’s death.
A closed will is null if its covers or the envelope containing it are damaged, or if the signatures are deleted, unless it can be proved that the testator damaged his will during a state of mental derangement.
Who shall inherit the decedent’s property in Spain and in what proportions it shall be distributed?:
a) If the decedent died leaving a valid will, the persons who shall inherit his property will be the following:
Compulsory heirs: The Spanish laws of succession determine obligatory heirs, who shall inherit at least, one third of the decedent’s assets, this portion is called “la legítima“. The obligatory heirs of the deceased are:
In the first place his children (biological children and individuals adopted) and his issue,
His ascendants, when the deceased had no descendants.
The surviving spouse shall receive the usufruct over one third of the estate, in case the testator died leaving issue. Over half of the estate, when the decedent died without issue while his ascendants were still alive, or over two thirds of the estate, if the decedent died without ascendants nor descendants.
The voluntary heirs: The testator may leave part of his assets to the persons of his choice. Beneficiaries may inherit those assets exceeding the third of the estate named as “la legítima”. The surviving spouse shall receive the usufruct over third of the assets, , or over half of the estate, when the decedent died without issue while his ascendants were still alive.
If there are no compulsory heirs, voluntary heirs may inherit all the decedent’s assets.
Along with the compulsory and voluntary heirs, the legatees will inherit specific assets that the testator may have disposed for them.
b) If the decedent died intestate:
If the decedent dies leaving no will, the Spanish law of succession determines who shall inherit. The decedent is considered to have died intestate in the following cases:
When there appear to be assets which have not been included in the decedent’s will. These assets shall be distributed in the manner that the Spanish law provides for intestacy.
When the heirs do not accept the will, or it is not accepted within the period legally required.
When the inheritor is incapable of inheriting.
When the will has being destroyed.
When the will does not include all the obligatory heirs, or includes someone considered as compulsory heir when he turns not to be.
When the will is null.
The Spanish laws of succession set out the following hierarchy of inheritors in case of intestacy:
Descendants: The decedent’s issue and their descendants will inherit in the first place. Either legitimate, illegitimate child or individuals adopted have the same succession rights.
Ascendants: They will inherit when the decedent dies without leaving issue. They will inherit in equal parts.
The spouse will inherit if the decedent has neither issue nor ascendants.
Collateral family: If the decedent had neither descendants, nor ascendants, nor spouse, his brothers and/or sisters will inherit equal parts of the estate. Nephews/nieces will inherit the portion that would have corresponded to the brother/sister deceased (brother/sister of the testator and father/mother of the nephews/nieces who shall inherit)
Cousins will inherit when there exist no one of the individuals above mentioned.
The Spanish Government will inherit when there exist no one of the individuals above mentioned.
7. Share of the inheritors in succession
If the deceased was married under community property marital regime, which is the general regime for matrimonial property in Spain (though some Spanish regions such as Catalonia, Basque Country, etc. differ from this regime), half of the decedent’s property do not form part of the estate, but continues to belong to the surviving spouse.
The other half of the estate less the charges must be divided intro three equal parts. The surviving issue will inherit at least one third of the assets, which is called “la legítima“, another third of the assets must also be left to to the children, but the testator may decide how this is to be divided. The surviving spouse shall receive the usufruct of this third of the assets, and the inheritors cannot dispose of it freely until the surviving parent dies. The testator may leave the last third of his assets to anyone he pleases.
When the decedent died without issue and descendants, the surviving ascendants shall inherit one third of the estate, if there is a surviving spouse, and half of the estate, if he has no surviving spouse. When there are neither children nor ascendants, the surviving spouse shall inherit the usufruct of two thirds of the estate.
This is the act of a person that has the effect of depriving an obligatory heir of the property that would have been distributed to that person under the Spanish laws of succession. Disinheritance can only be made by leaving a valid will.
a) In general terms, the testator may disinherit an obligatory heir on the following grounds:
When the testator’s parents had deserted, prostituted or corrupted their children.
For using any act of violence or coercion to hinder a testator from making, modifying or hiding a will.
If the inheritor had used any act of violence or coercion to force a testator to make or modify a will.
The heir may be disinherited were he condemned for having attempted to take away the life of either the testator, his spouse, descendants or ascendants.
b) Specific reasons to disinherit his descendants could be the following:
If the descendants had refused sustenance to their parents, having the means to afford it.
When having maltreated physically, or seriously insulted the testator.
c) Specific reasons to disinherit the parents to disinherit the testator’s parents are as follows::
To have been deprived of the paternal authority that belonged to the legitimate father or mother upon the testator child, owing to a sentence based on the non-fulfilment of the duties involved in paternal authority.
. Having refused to provide food and nourishment to their child.
d) Specific reasons to disinherit to his/her spouse can be the following:
To have refused sustenance to his/her child or the spouse, having the means to afford it.
If the spouse had attempted to take away the life of either parent, when there exist no reconciliation later.
If the disinherited legitimary challenges and disputes the disinheritance alleging the non-existence of the reason, the evidence that such cause did exist corresponds to the rest of the heirs.
The child and descendants of the disinherited person shall keep their rights as obligatory heirs
The reconciliation of the testator with the legitimary who has incurred in cause of disinheritance, leave the disinheritance without effect.
Acceptance is a declaration of the heir’s intention to inherit all rights and obligations that belonged to the decedent. He may accept through a public or a private document, it may also be accepted tacitly, by taking the assets he was left.
The heir may accept the inheritance in profit of inventory “a beneficio de inventario“, which means that the heir will only pay the decedent’s obligations up to the limit of the assets contained in the will, otherwise they shall pay the total amount of the debt even with their personal property. It is advisable that the heirs accept in profit of inventory when it is uncertain the deceased’s ability to pay the debts he contracted. The acceptance in profit of inventory can be made before a notary, a judge or before a consular agent, in case the heir is not in his country of origin.
The heir may renounce the inheritance by declaring it on a public deed before a notary or a judge. If the summoned individual repudiate an inheritance in prejudice of his creditors, these will be entitled to request from the judge that he authorises such creditors to accept the inheritance in the name and in lieu of the repudiating party, for the sole purposes of recovering their credits on the hereditary estate. The creditors then shall recover their credits on the hereditary estate. The remaining assets corresponding to the debtor heir, who renounced to the inheritance shall be shared among the rest of the inheritors.
Acceptance or repudiation of the inheritance shall be declared within 30 days after the death of the decedent.
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice.
This article was taken from http://iabogado.com/
iAbogado is an English-speaking firm located in Spain.