In Spain no probate court exists corresponding the initiative to begin the inheritance process to the heir. A foreign court is not able to distribute the Spanish estate, and the assistance of a Spanish lawyer becomes inevitable. A Spanish last will saves the heir for many problems.
Before the heir can achieve ownership to the Spanish assets, enabling them to for instance sell a Property located in Spain, it is imperative agreeing on the signing of a Spanish deed dis-tributing the estate at the Spanish Notary.
Is Spanish inheritance law to be applied?
The international private law of many foreign countries appoints the law of the last domicile of the deceased or the location of a property, to be applied. Though according to Spanish international pri-vate law the inheritance law to be applied, when the deceased is a foreigner, is to be decided by the nationality of the deceased, providing most foreigners with a ‘general rule’ saying foreign inheritance law is to be applied on the distribu-tion of the estate.
EC regulation changes Spanish general rule for residents
Unfortunately for many foreigners resident in Spain in the near future recent EC regulation will change the mentioned Spanish general rule. Consequently the law in the member state, where the deceased had his habitual residence at the time of death, shall be the law applicable. The new general rule does not apply if the de-ceased has decided another applicable law in a last will.
“As a consequence of the new EC regulation all foreigners having their habitual residence in Spain shall make a Spanish last will to secure the application of their own national inheritance law instead of Spanish law.”
Who inherit under Spanish law?
Spain is divided in 17 different highly independent ’Comunidades Autonomas’, some of them with local inheritance regulations, whereby the following is according to general Spanish inher-itance law contained in the Civil Code.
“In Spanish law the spouse is not entitled to an indefeasible portion of the estate…”
How can be disposed in a Spanish will if Spanish law applies?
Only descendents and parental line are entitled to an indefeasible portion of the estate (legítima). The usufruct consisting of 1/3 (mejora) can be left by will to surveiving spouse.
” A Spanish last will secures a distribution of the estate according to own national law”
Foreign last will?
Though a foreign last will as a general rule is valid in Spain, it is necessary to be extremely cautious, because not all foreign legal figures exist in Spanish law as well as some disposition considered legal in a foreign country might not be so in Spain. The foreign last will could as a consequence be considered void in Spain.
Why make a Spanish last will?
- A Spanish last will secures a distribution of the estate according to own national law and avoid interpretation doubts in Spain.
- The existence of a Spanish last will makes the distribution of the estate a lot easier for the heir.
Special Spanish circumstancies
- No probate court exists.
- Inheritance process does not start au-tomatically.
- The estate is not a legal person.
- The heir cannot dispose of the assets until properly registered as new owners.
- Last will can always be revoked.
- Not all foreign legal figures and dispositions are recognized / valid.