If you own assets in Spain, they must be in your Spanish will.
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 it can be used. A long, expensive process.
Will Contents. Only include assets located in Spain, no need to list non-Spanish assets; they go in the will of the country 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, simply ask the Spanish judge to apply it to your will.
An Illustration. USA citizen Sam is from California. He owns a flat in Barcelona where he lives with his Spanish wife Montse. They have two adult children, Alpha and Beta. Sam wants to give his Barcelona flat to Alpha alona.
Spanish Will. Upon Sam’s request, the Spanish judge will apply California law and pass 100% ownership of the flat 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 value of the gift(s) 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. There are things you can do now that will reduce the taxes your heirs have to pay.
Conclusion. Ex-Pats have some flexibility in disposing of their property in Spain. Knowing how it works and the taxes involved requires expert advice.
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]