When a person sets out to draft their will, they usually focus on how to distribute their assets among their heirs.
However, if you own property in Spain or have assets spread across more than one country, it is also essential to consider the legal and tax implications this may have for your successors.
Proper planning not only ensures that your wishes are carried out, but also avoids legal complications and unnecessary costs for your heirs.
Determine which law governs succession
One of the first questions to consider when drafting a will is: which legislation will govern the succession of my assets and property?
As a general rule, the applicable law is that of the country where the person has their residence at the time of drafting and signing the will. This means that even if you own property in Spain, if you reside in another country, your inheritance may be subject to the laws of your country of residence.
It is true that in some cases it is possible to declare that you want your will to be governed by the national law of your country of birth or origin.
However, it is essential to ensure that this choice does not conflict with Spanish law, as any contradiction can significantly complicate the process of awarding the inheritance.
Furthermore, there are situations in which the applicable law does not regulate certain aspects of succession, leaving the testator greater freedom to decide how to proceed without the need to make a formal declaration of heirs.
If Spanish law is applicable
When Spanish law governs the succession, it is recommended that the will be formalised in Spain.
Doing so greatly simplifies the probate process, as the heirs will not need to provide foreign documentation to validate the will. It also ensures that the rights of the heirs are fully respected as established by Spanish law, avoiding unnecessary conflicts and delays.
Drawing up a will in Spain also allows for clear provision for the distribution of specific assets, including real estate, bank accounts and other assets located within Spanish territory. ç
This ensures that the heirs can access the assets quickly and without additional bureaucratic complications.
If the applicable law is that of another country
If the will is to be governed by the law of another country where inheritance rights exist, it is best not to draw it up in Spain. This is because, when the inheritance is to be distributed in Spain, the heirs will have to obtain all the necessary documentation to ensure compliance with the rights established by foreign law, which may lead to delays and additional costs.
In these circumstances, it is advisable to seek the advice of a solicitor specialising in international succession, who can provide guidance on the steps to be taken, the documentation required and the most effective way to protect the rights of the heirs in both countries.
Tax considerations
In addition to legal aspects, it is essential to consider the tax implications of leaving assets in Spain. Inheritance tax may vary depending on the residence of the heirs, the value of the assets and the structure of the estate. Therefore, proper tax planning is key to minimising the tax burden and avoiding conflicts with the Spanish tax authorities.
Having the support of a professional who is familiar with both Spanish legislation and the legislation of the testator’s country of residence can help to draw up a will that complies with legal requirements and optimises the tax situation of the heirs.
MAM Solicitors: the security of having a team of highly specialised solicitors
Drafting a will when you own property in Spain requires careful planning that takes into account both Spanish law and the law of your country of residence. Choosing the correct applicable law, deciding where to formalise the will and anticipating tax issues are essential steps to ensure that the distribution of assets is carried out in accordance with the testator’s wishes, with as few complications as possible for their heirs.
A well-planned will provides peace of mind, avoids conflicts between family members and ensures that assets are transferred efficiently and legally, complying with both Spanish regulations and any applicable foreign legislation.
At MAM Solicitors, we have a team of specialised solicitors to help you draw up your will and complete all the necessary formalities with the utmost security and in accordance with current legislation.
Our team is also prepared to assist you in your own language, making the process much easier and more comfortable for you.
If you have any questions or if we can help you in any way, please do not hesitate to contact us.
