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Inheritances in Spain: Do I need a notary?

Inheritance, testament and successions in Spain are regulated in the Civil Code. Its regulation is wide and complicated, since the legislator forces people to transmit their assets after their death following a series of pre-established laws. This means that the Spaniards do not have a free disposition to bequeath all of their properties. But what about foreigners residing in Spain? Today we speak with the notary Francisco Belda Montesinos about the role of the notary in Spanish and foreign inheritance.

 

The death of a person produces, in any place of the world, the transmission of his goods and obligations. This matter is regulated by inheritance law and each country has its own rules. Now we will explain how Spanish law regulates the main issues and the rights and obligations of foreigners in this matter.

 

What law applies to the inheritance of a deceased foreigner in Spain?

For people who have died after August 17, 2015, Regulation (EU) No 650/2012 of the European Parliament is applied, under which the law applicable to the inheritance will be the law of the place of the habitual residence of the deceased person if he had not chosen another one.

 

How can I make a law choice?

The means necessary to choose the law applicable to the succession is the testament. In that document the testator names his inheritors and beneficiaries of his inheritance and also the law that rules his inheritance. The notary intervenes in the testaments by registering the last will of people and making them appear in a public deed and ensuring that it has been done respecting the legal regulations. Whenever possible it is advisable to leave a will, as it is an economic procedure that avoids problems for the heirs.

 

What laws can I choose?

You can choose between the law of your nationality and the law of the place of your habitual residence. A person who has several nationalities can choose between any of them.

 

Guide on inheritance for foreigners

 

What happens if I die in Spain without a will?

In this case the rules of intestate succession of Spanish law will apply. The order of the heirs is as follows:

 

  1. Children and descendants.
  2. Parents and ascendants.
  3. Spouse.
  4. Brothers, nephews and other collateral relatives.

The spouse with descendants will have the usufruct of a third party. But if there are a spouse and ascendants the usufruct will be half of the inheritance.

 

Can I make a testament in favour of the people that I choose, with total freedom?

That will depend on the law you choose. The Spanish law recognises to some relatives the right to the legitimacy, a portion of the assets of the inheritance that necessarily corresponds to certain relatives. If the person has children or descendants they must receive two thirds of the inheritance. If the person does not have descendants but does have ascendants, they should receive half of the inheritance. If he only has a spouse, he or she must receive his or her legitimate usufruct. Although the regulation of the inheritance in the Civil Code is very extensive, as a summary can be established that the inheritance is divided into three parts:

 

  • The legitimacy. It is the third of the inheritance that the testator has to reserve for their forced heirs, that is, descendants, ascendants and widowed spouse. The first to inherit are the children equally.
  • The third of improvement. This is the part of the inheritance that the testator can use to benefit one or more forced heirs. If there is no express reference to the improvement in the will it will be shared equally among the beneficiaries of the legitimacy.
  • The third freely available. The testator has complete freedom to transfer this part of the inheritance to the individual or legal entity he wishes. However, if the testament does not specify who is left the free disposal third, it will be part of the legitimacy.

 

If the testator has another nationality other than the Spanish nationality he may choose the corresponding inheritance law. Each country recognises more or less freedom to their nationals to make a will. Some of the most permissive countries are England or Switzerland, while others are more restrictive, such as France or Belgium.

 

What law applies to my will if I am a foreigner resident in Spain?

 

What documentation should I provide to a notary to process the inheritance?

You will need the following documents:

 

  • Death certificate.
  • If the deceased resided abroad it will be necessary to provide the document of declaration of heirs issued by the competent authority. This document must be translated and incorporate the The Hague Apostille.
  • If he dies in Spain and does not have a will it will be necessary to process the declaration of heirs, with the addition of a family record book and the declaration of two witnesses.
  • Title deeds.
  • Bank balance certificate on the date of death.

 

The notary can help you collect this documentation, prepare a budget, process the deed and establish a fiscal cost. In addition, the notary also manages renunciations of inheritance or inheritance acceptances for the benefit of inventory.

 

If you are going to receive an inheritance or want to make a will, you will need a trustworthy notary to carry out all the necessary procedures. Once again we would like to thank the notary Francisco Belda Montesinos for his collaboration in the preparation of this article. If you need more information about what a notary can do for you, you can contact his team through the telephone numbers +34 966 42 31 11 and +34 966 43 26 19 or the email info@fbelda.com. His office is located in Plaza Jaime I, 2, in Denia.

 

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