If you own assets in Spain, they must be in your Spanish will. Learn all you need to know about the Spanish will for foreigners.
As we mentioned in this article about the Spanish will for Ex-pats, only a judge, or notary public, in Spain can only dispose of your assets located in Spain; a judge in your home country can’t do this. If you submit your ‘home-country’ will in Spain, it must be ‘authenticated’ before being used. A long, expensive process.
Will Contents. Only include assets located in Spain. There is no need to list non-Spanish assets; they go in the country’s will where they are located. Each will must comply with local law, so you’ll need a lawyer in each country.
Ex-pat Advantage. You may direct the Spanish judge to apply the law of your home country when disposing of your Spanish assets. Why this is important:
Spanish Law. Catalunya, and most of Spain, have ‘compulsory heirs’ who inherit no matter what. So if you own a flat in Barcelona where you live with your family, when you die, your spouse receives 50% of the flat and your children, regardless of age, receive 25%. It transfers as a matter of law. Your will is irrelevant.
Your Country’s Law. Some countries and most USA states have ‘free disposition’. This means you can name any heir you want, and no one is compelled. If this is the case, ask the Spanish judge to apply it to your will.
An Illustration. USA citizen Sam is from California. He owns a flat in Barcelona with his Spanish wife, Montse. They have two adult children, Alpha and Beta. Sam wants to give his Barcelona flat to Alpha alone.
Spanish Will. Upon Sam’s request, the Spanish judge will apply California law and pass 100% flat ownership to Alpha. Montse and Beta are not compelled and receive nothing.
California Will. Sam also has a house in California that he wants to give to his son Beta. Sam must have this written in his California will. If so, it transfers to Beta. The Spanish judge/will is not involved.
Spanish Inheritance Tax. In Spain, a person who receives a gift in a will must pay a tax based on the gift’s value. The tax is a percentage and increases as the gift(s) value increases. If the person is a non-resident of Spain, the tax could be doubled.
Spanish Legal Assistance. Consult a Spanish inheritance tax expert to help you prepare your will. You can do things now that will reduce the taxes your heirs have to pay.
Conclusions about the Spanish will for foreigners
Ex-Pats have some flexibility in disposing of their property in Spain. Knowing how it works and the taxes involved requires expert advice. I hope you’ve learned more about the Spanish will for foreigners with the information provided in this article.
Questions. I’m a USA-licensed attorney from California and have lived in Spain since 2001. I work with a Spanish tax attorney. We draft wills for Spanish ex-pats from a variety of countries. I’d be happy to answer your questions. Mark Carr, [email protected]