Making a will & inheritance law considerations for foreign owners and residents on the Costa del Sol.
General considerations on inheritance law
The fact that a foreign individual owns property or resides on the Costa del Sol will not necessarily mean that the Spanish inheritance rules will apply. For instance, in accordance with the Spanish Civil Code, the law that would normally apply to an inheritance should be the one conforming to the deceased’s nationality at the time of death, irrespective of the nature and location of the assets forming the estate.
However, the Spanish courts will have jurisdiction in respect of any Spanish assets or in the event that the deceased’s last domicile was located in Spain. Moreover, if the succession is settled in Spain and the deceased failed to execute a will, there is a risk that some Spanish rules may apply, including the forced heirship rules (i.e . the mandatory distribution of part of the estate to heirs nominated in the law, irrespective of the deceased’s final wishes). In view of this, it is advisable for foreign individuals to obtain sound legal advice prior to buying a property or when planning ahead in respect of their inheritance.
Is it necessary to execute a Spanish will?
As discussed above, the Spanish Courts would have jurisdiction in respect of assets located in Spain or if the deceased last domicile was in Spain. This would complicate matters if a foreign owner dies without a will, as there is a greater risk that aspects of the Spanish inheritance rules may apply. Moreover, in the event that the deceased executed a will in his home jurisdiction without executing a separate Spanish will, the former would need to be translated and legalised by the Spanish Consulate and then recognised by the Spanish Courts.
Therefore, it is generally advisable for individuals who own assets in Spain to execute a separate Spanish will in respect of such assets, even if there is no legal obligation to do so or if they already executed another will in their home jurisdiction. Not only would it reduce the costs in executing the estate and reduce legal risks, but it would make the process simpler, quicker and less stressful for the deceased’s heirs.
Notwithstanding the above, it should be noted that there are exceptional instances where a Spanish will may not be necessary. For example (and depending on a case-by-case basis), a Spanish will may not be necessary in respect of some lifetime arrangements to mitigate the impact of Spanish IHT, such as creating a usufruct or a holding structure overseas.
Why trust us with your will?
We specialise in advising foreign nationals (resident and non-resident) in respect of all legal and tax areas which matter to them, including inheritance law and taxation. When an individual executes a Spanish will, it is necessary for all legal formalities to be duly followed in order for the will to be valid and to reflect the testator ́s final intentions.
Moreover, foreign nationals, in particular, should obtain specialist legal advice from lawyers who are familiar with cross border matters and advising foreign nationals in Spain (resident and non/resident) to ensure that there are no conflicts of laws or issues which may result in unintended consequences.
BF Solicitors is a law firm specialised in advising private clients on the Costa del Sol on legal and tax matters.
Our partner-led practice includes Spanish Abogados and English Solicitors (registered with the Law Society of England & Wales and as EU Lawyers with the Malaga Bar). We are able to provide a tailored and comprehensive service to our clients in respect of property, tax, wills & inheritance, wealth management, commercial & corporate transactions and yacht sales & registrations.
Disclaimer & Contact Details
The above article is intended to provide a general overview on the need for foreign nationals to execute a Spanish will and should not be deemed to constitute legal advice. There are numerous ongoing legal developments in this field and legal advice needs to be bespoke in relation to one ́s particular needs and objectives. Readers are strongly advised to contact us for a free and confidential 30-minute consultation in English with one of our Partners.
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www.bfsolicitors.com / email@example.com / +34 952 000 031
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