Inheritance and Will in Spain

Updated on Monday 13th March 2023

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In case you have assets in Spain, regardless of their size, you should make a will ("testamento"), a process through which it is recommended to have legal assistance. Our Spanish lawyers can help you in the process of drafting a will in Spain, whether it is a standard or a more complex one.

Lexidy Law Boutique SLP is a Spanish law firm that has adhered to various organizations in order to certify its involvement in offering specialized services to local and foreign clients. We can provide legal assistance on various matters, among which inheritance is one of the most important. We can also handle other civil law legal issues in our offices in Madrid and Barcelona. All you need to do is let us know how we can help you and we will come up with a suitable tailored solution.

Among the organizations Lexidy Law Boutique SLP is part of, we mention the German-Spanish Association of Lawyers (Deutsch-Spanische Juristenvereinigung eV), the International Bar Association, the Sweden - Spain Chamber of Commerce in Barcelona (La Camara de Comercio Hispano – Sueca de Barcelona), the IMC and the Barcelona Bar Association (Il Lustre Col-Legi de L’advocaia de Barcelona).

Reasons for making a will in Spain

There are a few benefits with making a will in Spain and here are a few of them:

it is a way of avoiding expensive legal matters that the heirs will have to resolve otherwise; you can as well make a separate will in order to dispose of the other assets you have outside of this country;
if you are a foreigner you are not obliged to divide your assets equally among your heirs, but instead, you can leave your properties to whoever you prefer; the estate you own will, however, be subject to the inheritance tax in Spain;
you can get a reduction of 95% for your estate concerning inheritance tax; this is not applicable to non-residents though.

For further details on the benefits of making a will, you can ask our attorneys in Spain who will assist you in the process of drawing up a will in Spain and also in any wills-related legal issues you may encounter.

Types of wills in Spain

There are several types of wills one can make in Spain and the rules applying to witnesses are quite strict, thus, if you fail in following the procedures exactly, the will can become void or null.

The open will ("testamento abierto") is the most highly recommended type of will for the majority of people. The document has to be prepared by a notary who has to ensure that the will is legal. Also, its content must be known by three witnesses and the notary who then have to sign the will. A copy of it must be sent to the General Registry of Wills ("Registro General de Actos de Ultima Voluntad").
The closed will ("testamento cerrado") must be drawn by a lawyer in Spain who has to make sure that it complies with the Spanish law. The will has to be seen by a notary who has to sign it and seal the envelope (along with two witnesses), ultimately having to be recorded as the open will. Our law firm in Spain can ensure that all the legal steps have been completed and that the will complies with the law. If you need assistance when drafting a will in Spain, our team is at your disposal.
The holographic will ("testamento ológrafo") is made orally or with your own handwriting. In the second case, it has to be signed and no other formalities or witnesses are needed. It can also be registered with the Registry of Wills. This type of will is generally the better solution for someone with a smaller estate in Spain.

Preparing a Spanish testament

Before drafting one’s will in Spain, there are several aspects to be taken into account. Among these, one of the most important is having witnesses. In the case of a closed and open will, the testator is required to have at least two witnesses who are not closely related to the testator. The open will must be drafted in the presence of a Spanish public notary, while the closed one once ready must be sealed in an envelope and handed over to the notary. When handing the closed testament to the notary, the testator must declare that the will was prepared and signed by themselves or by a third person.

No matter the type of testament, it will be registered with the Central Registry of Will in Spain. Each will receives a registration number.

Foreign citizens preparing wills in Spain

Foreign citizens may prepare a will in which they can only provide for their assets in Spain as it will be easier for the heirs to claim the estate. However, foreign citizens owning property in Spain will also have their foreign will recognized in Spain, but only with respect to the assets held in this country. Assets or estate held abroad cannot be governed by the Spanish inheritance legislation. One must also make sure that the two inheritance laws are not in conflict when preparing two separate wills. This is also one of the most important reasons most foreign citizens request the advice of Spanish attorneys when drafting their testaments.

The legal grounds on which a will can be contested in Spain

When drafting a will in Spain, the testator will sign the document in front of a public notary, which will testify that the document was signed following the applicable procedures. In this case, the persons wishing to contest a will should have a grounded reason to proceed to this action.

The main reasons to contest a Spanish will are the following:

• the inheritor considers that the document is invalid, as a consequence of the way it was drafted;

• the testator did not have the testamentary capacity, which means that the document was never intended to be a will;

• the testator did not offer his approval on the respective document;

• fraud matters;

• undue influence – the testator was influenced or forced to specify a certain provision he or she did not wish to include in the document.

Persons who want to contest a will can only act in this sense if they have sufficient evidence that can be included in one of the above-mentioned conditions; our team of Spanish attorneys can offer an in-depth presentation on this matter.

Will legislation in Spain

Following the European Union’s Regulation 650/2012, the will legislation in Spain changed, in the sense that the applicable legislation for this document would be the national legislation where the persons’ habitual residence is. The legislation became effective in Spain since 2015. Before the enactment of the regulation, the applicable rule was the national law where the person deceased (as prescribed by Article 9.8 of the Spanish Civil Code).

Spanish inheritance law does not allow you to leave your assets to just anyone, there is a limit to it. This is done in order to make sure that the children (as they come first in Spanish law) will receive a bigger part of the assets than the spouse. For further information about inheritance, feel free to ask our Spanish lawyers.

Steps for inheritance in Spain

There are a few steps that can be followed if you want the whole process of inheritance to be completed as soon as possible and our law firm in Spain can guide you through it.

You first need to acquire the original death certificate. This is recommended to be done within the first twenty-four hours after the person's death.
Then you can apply for the certificate of last wills and life insurance. In case there is no will, you can apply for probate in order to determine the rightful inheritors.
You should also find out details about all assets of the deceased as it is better to include bank accounts, real property, vehicles etc. This is to make sure that the titles are changed for all assets to the legitimate inheritors. A Foreigners Identification Number (NIE) is required for inheritance as well as it is needed for signing the certificate of inheritance.
Then the liquidation of inheritance taxes needs to be done, as well as changing the title of all assets of the deceased to the legitimate heirs.

For all these procedures, you can receive guidance from our lawyers in Spain, who will take care of every detail so as to complete them in the shortest time possible.

Spanish inheritance taxes

The Spanish succession tax or "Impuesto sobre Sucesiones Y Donaciones" is the tax applied on gifts and inheritance, being paid by the receiver and it is only due when he/she is resident in Spain or when the asset is located in the country (real estates etc).

Rules and rates for Spanish inheritance taxes vary depending on the relationship between the beneficiary and the donor; however, step-children and unmarried couples commonly pay more than natural children and spouses. In some regions of Spain, there is almost no tax applied for children and spouses, in places like Madrid and Comunidad Valenciana. Last, the allowances, as well as the tax rates, vary according to the group the recipient falls into (natural and adopted children under 21 etc).

The Spanish legislation on the division of the inheritance

The Spanish Inheritance Law was designed to protect the family and limits a testator’s freedom when it comes to the division of assets. The law provides for the so-called “enforced heirs” who have the legal right to inherit two-thirds of the estate. The division of inherited assets under the Spanish legislation will be done as it follows:

one-third of the estate will be divided in equal shares between the children and the spouse, the so-called compulsory heirs,
one-third of the estate will be divided among the other compulsory heirs chosen by the testator,
one-third of the estate will be divided among those stipulated in the deceased’s will.

For assistance in matters related to the divisions of assets in case of inheritance, you may refer to our law firm in Spain.

Accepting an inheritance in Spain

The inheritance legislation also applies to foreign citizens living in Spain or accepting an inheritance from Spanish citizens. There are several steps one must follow in order to gain possession of the inherited assets. The first step is signing a Title Deed of Acceptance. The inheritor must know that the Spanish legislation provides for an inheritance tax. The second step will be determining the inheritance tax to be paid. In case of real estate inheritance, the last step will be registering the property with the Spanish Land Registry.

You can contact our lawyers if you need assistance with drawing up a will in Spain or other legal issues related to it.