With around 380,000 British citizens currently living in Spain, Zeen Al Atroshi of Duncan Lewis Solicitors looks at Spanish succession laws and how to obtain probate in Spain.

What is a last will and testament?

A last will and testament is a binding document that sets out a ‘testator’s/testatrix’s’ (the person making the will) wishes on how they would like their ‘estate’ (money, property and possessions) to be administered after their death.

The last will and testament is ‘proof’ of someone’s wishes and can include gifts, legacies and the gifting of properties. If you do not make a last will and testament, intestacy laws may come into effect and your estate may be distributed in ways you do not agree with.

Should you write a ‘foreign will’?

It’s highly recommended that you draft a will in the jurisdiction where assets are held to make sure it complies with their inheritance laws, which can differ from country to country. Therefore, if you have assets in Spain, it is recommended that you draft and register a separate will in accordance with Spanish inheritance laws to deal solely with any assets you may have in Spain. This ensures the handling of your estate is kept simple and won’t interfere with other assets held in other countries.

How do you write a will in Spain?

To draft a will in Spain, the best course of action is to get specialist advice from a lawyer in Spain who is experienced in will drafting.

To make a will in Spain you must be over 14 years old, have your wishes in writing and it must be signed and certified before a ‘notary’. It will then be registered at the central registry in Madrid, known as ‘Registro General de Actos de Última Voluntad’ (Central Registry of Wills).

There are three types of will in Spain:

• An open will (testamento abierto) – this is the most secure way to make a will in Spain as it contains your wishes but is written by a notary who will be familiar with Spanish laws. It’s called an ‘open will’ as the notary knows about it, but it’s not seen by other people.
• A closed will (testamento cerrado) – this is where the will is given to the notary, but the notary is not able to see it. This can cause issues if you’re not completely familiar with Spanish regulations.
• A holographic will (testamento olográfico) – this is where the will is written by hand. It cannot be done on a computer and it must be free of any amendments/crossing outs. Holographic wills can cause problems as they are often lost and need to be proved as authentic once found.

Remember when writing a will that inheritance tax on any Spanish property is payable to the relevant tax authorities in Spain, subject to any exemptions and reliefs that may be applicable to the estate. 

What are the succession laws in Spain?

Spanish succession law requires that a certain amount of the estate is left to children. This is often called ‘forced heirship’ and descendants must inherit two-thirds of their parents’ inheritance:

• The first third must be distributed equally to all children or other descendants. For example, if there are two children, each of them will receive half of this amount.
• The second third can be allocated unequally among children and descendants. For example, if there are four children, one can receive all this amount and three can receive nothing.
• The final third can be allocated to whoever the deceased wishes.

‘Illegitimate’ children are also entitled to inheritance and if there are no descendants, the parents or any other ascendants will be considered instead.

However, other nationalities living in Spain can follow the succession law of their own country, if they wish. For UK citizens, if you wish for UK law to be applied on your will, the EU Succession Directive states that you must declare this in your Spanish will. Failing to declare this will lead to your estate being distributed in accordance with Spanish succession laws.

It should also be noted that it’s currently unknown what will happen to the EU Succession Directive after the UK leaves the European Union. However, it’s likely that it will take some time for legislation to change after Brexit, so for now, Brits should still declare it in their will if they want UK law to apply. 

What happens when someone dies without a will in Spain?

If you don’t draft a legally valid will in Spain, then your assets will be dealt with in according to Spanish laws when you die. This essentially means that the estate will be administered either through UK or Spanish intestacy laws.

Which intestacy law is applied largely depends on your ‘habitual residence’ at the time of your death. Your habitual residence can be more complicated than it sounds as it’s based on many factors, not simply where you currently live. Therefore, using a lawyer with experience in cross-border succession is recommended wherever possible.

Once it is known which laws applies and who is entitled to inherit, the following steps usually occur in Spain:

1. A ‘declaration of heirs’ document is signed. This is a document setting out the estate in Spain along with the persons entitled, stating their relationship to the deceased. Evidence must be submitted in support of this declaration. Prior to signing this documentation, it’s important to note how inheritance tax will be settled. Therefore, it’s wise to gather the assets and liabilities of the estate to calculate the inheritance due.
2. A further document, ‘acceptance of inheritance Spain’, must then be signed before a notary. Reference will be made to the ‘declaration of heirs’, in the case of an intestacy.
3. As soon as the ‘acceptance of inheritance Spain’ document is signed, any inheritance tax which is payable will become due immediately. Once the inheritance tax has been settled and the document has been stamped by the Spanish tax authorities, steps can be taken to deal with the administration of the estate, such as transferring legal titles of properties into the beneficiaries’ names (the people inheriting from the deceased’s estate).

How do you apply for probate in Spain?

In order to obtain ‘probate’ in Spain (the proof that you have the right to deal with someone’s estate), there is a lengthy and often complex process. It’s important that an ‘executor’ (the person responsible for managing the deceased's estate) abides by the laws set out in Spain, therefore using a lawyer experienced in probate is recommended.

Visits to various offices will be required when trying to obtain probate, therefore it’s normal for someone to give a power of attorney to their lawyer who can act on their behalf. This is useful for an executor/beneficiary who does not reside in Spain, as it will ensure the whole process can be carried out correctly by the appointed lawyer.

Do you need to translate British death certificates in Spain?

Any death certificates that are not in Spanish may be required to be ‘legalised’ by the Foreign and Commonwealth Office. It may also need to be translated by an official translator. The legalised death certificate will then need to be shown to the Central Registry of Wills in Madrid.

How do you search for a will in Spain?

A will search be carried out at the Central Registry of Wills in Madrid to confirm the existence or absence of a Spanish will.

What is the NIE number in Spain?

The Spanish tax number is known as the ‘NIE number’. Executors/beneficiaries are required to obtain the NIE number before they can deal with and inherit from a Spanish estate. A Spanish lawyer can obtain and assist with obtaining a NIE number for the purposes of dealing with a Spanish estate.

How is a deceased’s estate distributed in Spain?

Once the above steps have been taken/considered, the process will consist of:

• collating documentation and asset relating to the estate
• signing a Spanish inheritance deed in front of a notary in Spain
• settling any inheritance and property taxes
• transferring property titles
• releasing funds from various bank accounts and distributing accordingly

About the author

Zeen Al Atroshi is a trainee solicitor in the Wills and Probate team at Duncan Lewis Solicitors.

See also

Why you should make a 'foreign will' for assets abroad

How to write a will

Find out more

What to do if someone dies abroad (GOV.UK)

Spain bereavement: death abroad (GOV.UK)

Get your document legalised (GOV.UK)

Image: Getty Images

Publication date: 18 August 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.