As with many legal matters, Spanish wills come with their fair share of myths. At Del Canto Chambers, we’re more than used to clients’ worries about safeguarding their Spanish assets for their chosen heirs. And more often than not, this anxiety is caused by misconceptions about the law in Spain and the UK.
This article aims to debunk the most common urban myths surrounding Spanish wills and, by extension, end those worries. First, however, remember that it is always advisable to make a will for your assets wherever they are in the world to ensure your chosen heirs inherit them.
Myth about Spanish wills 1 – forced heirship is applicable if I own assets in Spain
Spanish law clearly defines how your estate should be divided and what proportion must pass to your relatives (e.g. spouse, children and other family members). The law generally applies to anyone who has assets in Spain.
However, non-Spanish nationals may specify in their wills that they want their own country’s law to apply to their Spanish assets. For example, if you’re English, you can choose the rules of English law for your assets in Spain. By opting for this route, you can leave your estate as per your home country’s rules.
How do I avoid forced heirship?
Make a will in Spain and ensure that it clearly states that English law applies to the division of your Spanish assets.
Myth about Spanish wills 2 – if I don’t make a will in Spain, the rules of my home country will apply to the division of my estate
False. If you die intestate (i.e. with no will for your assets in Spain), Spanish law automatically applies to how they are divided. As a result, this division takes place according to Spanish regulations, not those in your home country.
Myth about Spanish wills 3 – if I make a will in Spain, I can’t make one in my home country
No, you may have a separate will for your assets in Spain and another one for those in your home country, for example, in England. However, our recommendation is to have a single will in the country of residence, written in your language, instead of two separate wills. However, the foreign will should consider the Spanish inheritance law provisions, and the best tax position for the inheritance.
Take expert tax & legal advice from a professional qualified in Spain and your own country on which assets to include in your Spanish will because your heirs could make significant savings. At Del Canto Chambers, we can provide this expertise.
Myth about Spanish wills 4 – my heirs will not have to pay inheritance tax on my assets in Spain
Not true. Inheritance tax is applicable in Spain on all assets included in your estate. What is more, inheritance tax does not form part of the double tax treaties between Spain and many countries, including the UK. Unilateral tax relief should be requested in the country of tax residence.
Myth about Spanish wills 5 – if I transfer my Spanish assets to my spouse, we will avoid paying tax
Again, not true. Inter-spouse transfers in Spain are subject to tax and can be very costly if you don’t receive the correct professional advice.
Myth about Spanish wills 6 – if I’m in a same-sex relationship, I can’t leave my Spanish assets to my partner
False. You can leave your estate to your spouse or partner (married or registered), whatever their sex, as long as your Spanish will clearly states this choice.
Bottom line regarding Spanish wills and probate?
Always take professional legal advice on making a Spanish will and plan for orderly probate to ensure that you a) leave your estate in Spain to the people you want to and b) save as much inheritance tax as possible for your heirs.