When an individual, foreign or Spanish, dies in Spain, what happens to their assets is not always straightforward, especially if they never wrote a will.
Ultimately it is their relatives that have to take charge of their assets, with property always one of the most problematic to resolve. Having a valid will in place can save a lot of hassle for your loved ones after you die.
How is an individual’s estate calculated?
According to the Spanish Civil Code, inheritance is defined as the assets, rights and obligations of a person, which extend beyond their death. This means that everything that belonged to them must be distributed, including debts.
Generally speaking, it’s not always a question of dividing up the value of the inheritance between those named. It’s more complicated than that. Other assets such as money held in bank accounts, bonds, funds, shares etc also form part of the assets from which unpaid debts, whether public or private, must also be deducted.
All of these elements combined (all that is added and subtracted) is known as the calculation of the estate.
This can be quite problematic in the case of property, especially if:
- It is indivisible
- Only part of the property is inherited
- There is a usufruct (a person has the right legally to live in a property until they die)
The importance of having a Spanish will
If you are a national of an EU country (not including Denmark and Ireland), and Spain is your habitual residence (not the same as tax residence), Spanish law must be applied to the inheritance – unless explicitly stated otherwise. This is by virtue of a European Union Convention known as Brussels IV.
According to Spanish succession law, if the deceased left no will, by default two-thirds of your assets must go to your legal heirs. If you write a will, this will not be valid if one third if nor left to these.
Many people from other European countries are often taken by surprise by this and may find that, as a result, their wishes may not end up being respected.
This is why when, moving to reside in Spain, especially if you own property or have assets in different countries, it is worth considering having a Spanish will be written – even if it is to specify that you want your country’s inheritance law to apply to your inheritance.
Contacting a lawyer that is an expert in cross-border law is advised in order for your inheritance to be well planned.
How are Spanish wills structured?
According to Spanish law, your estate must be divided into three thirds (tercio de legítima estricta, tercio de mejora and tercio de libre disposición).
- First third: children or other family members
One-third of the estate will go to “forced heirs”. This is known as the tercio de legítima estricta. In most cases, half will go to the spouse and the rest will be distributed in equal measure between the children.
However, if there is no spouse or children, this third is inherited by the parents. If the parents are no longer alive, in this order the inheritance goes to the siblings, then nephews and nieces, then aunts and uncles.
If none of these relatives exists or is alive then this third of the deceased’s estate passes to the State. This system also applies if no will has been written at all.
- Second third: an increased share
This third (the tercio de mejora) serves as an improvement to the share of an individual that benefits in the first third (ie. a spouse or other family member). This part can never be granted to third parties.
- Final third: a free choice
This final quantity (the tercio de libre disposición) can be granted to whoever the testator decides.
Writing a will in Spain
Having your wishes respected after your death is important. This is why when dealing with complex matters such as inheritance, you should contact experts with specialist knowledge in European law.
The will should clearly state which succession law you wish to invoke to avoid painful and potentially costly complications for your loved ones when the time comes.
So, if making a Spanish will is something you’ve been putting off, get in touch with us now for a no-obligation chat and advice on how to proceed.
Maria Luisa Castro
