Spanish Will for foreigners
The Will is the legal document that reflects the wishes and wills of the person in which it is, clearly indicated, how the assets will be distributed when the testator is missing.
This way, any confusion that may arise after the decease is avoided and the destination of everything considered important by the author remains expressly documented.
Why is it important for foreigners to make a Spanish Will?
Regardless of whether you are considered resident or non-resident in Spain, if you have assets in the country, you should consider the importance of including them in your Spanish will.
By including your property, vehicles and other assets you own located in Spain, you are facilitating the transfer of the inheritance to those who will inherit all of them. Conversely, if none of these assets are included in this Spanish Will, once the heirs wish to claim the assets, they will have to prove before Spanish Law that they actually have that right and that the Will (drafted and legalised in another non-EU country) is valid.
This is a lengthy and complicated process in which it will be necessary the translation of the original Will, its correct apostille and to prove that it was the last one made by the testator. All of this being subject to the corresponding legal actions.
As you can imagine, these requirements make the process much more time-consuming and costly.
Legal aspects of the Will
When it comes to asserting wishes, the testator can rely on the support of a lawyer specialised in Inheritance Law to ensure that it is drafted correctly, and on a translator to legally translate the document for its probate. In the event that testator and Notary Public do not share the same language.
This eliminates the two main issues of a foreign Will: the misinterpretation of a Will in another language and the formality required for it to be considered valid. It is therefore the most recommended option for foreigners who wish to have their Will duly executed and the one most of them choose.
Spanish Will complementary to the Will of the country of origin.
Although the importance of the Spanish Will for residents and non-residents is increasingly known, not many of them know that it can be complementary to the original Will drawn up in the foreigner’s country of origin.
If we consider section 739 of the Spanish Civil Code, we will be able to see how it allows a secondary Will (for assets or properties in Spain) to be accredited without the first Will made in its country of origin being violated.
“The previous Will is revoked as of right by the subsequent perfect Will, if the testator does not express in the latter his will that the former subsists in whole or in part. However, the earlier Will regains its force if the testator subsequently revokes the later Will and expressly declares that it is his Will that the earlier will be valid.” Section 739 of the Civil Code.
Thus, the assets in Spanish territory are included in this new Will, freeing you from the aforementioned disadvantages of not including them. An ideal example to understand this is when someone has a property for holiday use.
Let´s suppose that a British tourist has his original Will drawn up in his country of origin, but spends the summer season at his home located in the Spanish coast. When the time comes, he will be able to include in his Spanish Will that property in favour of the heir he deems appropriate. Ensuring through this simple procedure, that the property is in accordance with Spanish Inheritance Law, greatly facilitating the transfer to the beneficiary.
How does Inheritance Tax affect assets not included in a Will?
In the event of decease, the Spanish Tax Agency is permissive and tolerant with the misfortune in the 6 months following the event. Once this time has elapsed, the inheritance tax has to be filed and things change.
The inheritance tax will be applied to the heirs and, depending on whether it is collected by the autonomous community or the Spanish State, the percentage of withholding tax will vary to a greater or lesser extent. The correct filing of this tax may be complicated for someone who is not familiar with this type of requirements, for this reason we encourage you to do it with the support of a lawyer expert in Inheritance Law.
As we have mentioned before, the Spanish authorities set an initial period of 6 months for the settlement of this tax which can be extended for a few months. But beware, if the payment is postponed, you will face late interest charged by the tax authorities in form of percentage increases on the final payment, which means that you will end up paying more for each month that passes without filing the tax correctly.
However, the situation with a non-probate inheritance is even worse, as the heirs will have to request additional necessary documentation from the country of origin of the deceased and it is very likely that it will not arrive in time, will be complicated to issue, and will entail extra expenses that surely were not expected at the beginning.
Considering the delicate situation involved, it is not a pleasant task to manage.
Both in the case of having to pay the tax based on the Will, and when there is no Will to prove the inherited assets, it is advisable and safe to rely on the experience of your lawyer, who will not only avoid surcharges and inconveniences with the liquidation, but will also be able to inform you of the appropriate tax benefits.
Conclusion and recommendations
Drawing up and validating a Spanish Will in the vast majority of cases is a simple and affordable procedure, and obviously, it is always a better option than not having a Will or not including your Spanish assets in it. The result of leaving the heirs claiming their assets without a concise Will is a complicated situation that involves an unwanted waste of time and funds for them.
In case you are still not convinced or want to know exactly how all of the above would apply to your particular case, we recommend you consult with your lawyer on how this option can benefit you in order to ensure the proper disposal of your assets when the time comes.
If you have any queries regarding this or any other issues, you can contact us by sending an email to info@legaliuris.eu