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Foreign Will in Spain

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What is a will?

A will is a legal document containing the declaration of a person's last will and testament, which establishes how the assets will be distributed after death.

Who can make a Will in Spain?

The conditions of this procedure are governed by the Civil Code, between Articles 662 to 743 and, in relation to making a will, it establishes that this is a power that is vested in all natural persons, except in the following cases:

They cannot testate:

1. A person under fourteen years of age.

2. A person who at the time of making a will is unable to conform or express their will even with the help of means or aids to do so.

Article 663 of the Civil Code

Limitations on wills in Spain

In general, limitations are regulated by the laws set out in the Civil Code, which state that:

  • One third of the assets can be distributed according to the full will of the testator, and any individual or organisation can be an heir in the form and percentage that the person wishes.
  • The second third of the inheritance is determined "de mejora" and must be granted to forced heirs or legitimated heirs -children and descendants-.
  • The last part shall be divided equally among the forced heirs who agree to receive the inheritance.

What types of wills exist in Spain? 

There are different types of willsbeing the most commonly used are holographic and open. In the following, we will explain the general requirements and characteristics of each of them:

Common wills

  • Holographic will:
    1. Handwritten and signed by the testator.
    2. It is not necessary for the testator to present the holographic will before the notary before his death.
  • Open will: 
    1. The testator expresses his or her last will before the notary and is informed of its contents.
  • Closed will
    1. The testator, without revealing his last will, declares that it is to be found in the "pliego" which he hands over to the notary.

Special wills

  • Military testament
    1. Military personnel in the field, volunteers, hostages, prisoners and other individuals employed in the army, or following the army, may make their wills before an officer of at least the rank of Captain.
  • Maritime Will
    1. A will may be made during a sea voyage when on board a warship or merchant ship before the Accountant or the Master, respectively.
  • Will made in a foreign country
    1. If the testator is outside Spain, he/she may grant a will in accordance with the rules of the country where he/she is located.

Wills in Spain for Foreign Residents: Regulation 650/2012

The  European Union Regulation 650/2012 shall apply to all successions having an international character, irrespective of whether or not the deceased is a national of a Member State, provided that they occur within the territory of the European Union. 

The application of this Regulation implies that, if you were resident in Spain and made a Will here or in your country, but did not specify that you would like the law of your country of origin to be applied, death in Spain will result in the application of Spanish inheritance laws.

For this reason, it is advisable to analyse the legal regulation in each case and optimise efforts with lawyers specialising in wills. In this way, errors can be avoided that could prejudice the fulfilment of the data subject's wishes.

Why is it important to make a will?

Making a will is highly recommended, regardless of the country in which you live. After all, it is a contract that determines how you would like all your assets to be distributed; otherwise, the law would decide for you on such distribution.

Foreigners resident and non-resident in Spain

In order to avoid inheritance problems in the case of the foreign residents in Spain, It is advisable to make a will in Spain, especially if you own property here, and to specify in it the distribution of the assets you own abroad.

On the other hand, if it is an foreigner not resident in Spain but in possession of property here, it is recommended that you make a will and include in it the rights of your heirs with regard to the property in Spain. 

What is the price of a will?

The cost of making a will may vary depending on the type of will (ordinary or special).

In any case, the best thing to do is to get the right advice and decide on the most appropriate procedure taking into account the needs and interests of each individual.

If you need advice from the best inheritance lawyers in Malagain Ódice Abogados we are at your disposal for whatever you need.

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