Why a Spanish will can make inheriting assets in Spain much easier

Making a will is one of those things that is usually far easier in practical terms than convincing ourselves that we should actually sit down and do it. It is particularly easy to postpone when Spain is not where most of your life or assets are located. Perhaps you simply own a small apartment by the sea which you visit for a couple of weeks every year.

In that situation, being told that it may be sensible to make a separate will before a Spanish notary – properly coordinated with any wills you may already have elsewhere – can understandably feel like something that can wait.

And no: having a Spanish will is not compulsory simply because a foreign national owns a property, a car, a bank account or other assets in Spain. An inheritance can be dealt with in Spain on the basis of a foreign will and, depending on the circumstances, even where there was no will at all.

The difficulties normally arise at a more practical level. The real question is often not “can this inheritance be dealt with in Spain?”, but rather: how long will it take, how much will it cost, and how many additional steps will the heirs have to take in another country before we can complete matters here?

What does the Spanish notary actually need to establish?

To prepare a Spanish inheritance deed, the notary needs to establish who the deceased was, which law governs the succession, what constitutes the relevant succession title, who the heirs are, what share each heir receives and, where relevant, what authority the people involved in the estate actually have.

A Spanish will can answer part of those questions in advance within the Spanish notarial system. It can identify the heirs and their shares, record the wishes of the testator and, where appropriate, contain an express choice of the law of the testator's nationality to govern the succession.

That last point is particularly important because making a will in Spain does not automatically mean choosing Spanish succession law. A person may expressly choose the law of a State whose nationality they hold. Where no valid choice of law has been made, the general rule is that the succession is governed by the law of the State in which the deceased was habitually resident at the time of death.

So the fact that the document was signed before a Spanish notary does not, by itself, tell us which substantive succession law will ultimately apply. At the same time, the less the Spanish inheritance procedure depends on foreign legal institutions, the less those institutions have to be explained and proved before a Spanish notary.

A relatively easy example is the role of an executor in common-law succession systems. It is not enough simply to translate the word into Spanish. Depending on the case, we may need to establish exactly what authority that executor has, what he or she may do with the estate and how that role fits into the transaction we need to carry out in Spain.

When the succession documents come from abroad

Now consider the opposite situation. To complete the inheritance in Spain, we need to rely on a succession document issued in another country.

A Russian Certificate of Inheritance is actually a relatively convenient example because it normally identifies the heirs and the shares to which they are entitled. Even in a comparatively straightforward case like that, however, several additional layers already appear.

The document may need an apostille, a sworn translation and international delivery of the original. We may also have to wait until the document can legally be issued under the law of its country of origin. And in the case of the Russian Federation, even physically getting an original document to Spain can, in certain circumstances, become rather less straightforward than simply putting it in an envelope.

None of these issues makes the inheritance impossible, but each additional step means more time, more expense and another point at which something may need to be clarified, corrected or obtained again.

Powers of attorney executed abroad are a separate question. They may be necessary whether or not there is a Spanish will, largely depending on whether the heirs want to participate personally in obtaining documents and attending the Spanish notary or prefer the procedure to be handled through representation.

When translating the foreign law is not enough

Foreign-law certificates and legal opinions deserve a separate mention. They are not required in every international succession, but when they are required, this is often where matters become rather more interesting.

The objective is not simply to find a foreign lawyer who can reproduce the wording of a particular section of legislation. A Spanish notary may need to establish the content of the foreign law, confirm that it is in force, understand how it is interpreted and, most importantly, obtain a clear answer to some very practical questions: who inherits, why that person inherits, and in what proportion.

This can create an oddly simple problem. The foreign lawyer works within his or her own legal system, usually in another language and using legal categories which make perfect sense within that system. The resulting opinion may be entirely correct, yet once the document has been apostilled, translated and presented in Spain, we may discover that it does not actually answer the precise question the Spanish notary needs answered.

And a sworn translator cannot fix the legal reasoning in the original document. The translator translates what is there.

Having a document does not necessarily mean having the document the notary needs.

Sometimes an existing legal opinion can be supplemented. Sometimes a new one has to be obtained. Either way, this may mean going back to the foreign professional, obtaining another apostille, commissioning another translation and arranging another international delivery.

Things can become more complicated still when the private international law rules of the foreign country come into play and the issue of renvoi arises. For lawyers working with international estates, this is a perfectly normal part of the analysis. For the heir who simply wants to know when the documents can finally be signed, it is understandably rather less fascinating.

Ultimately, every foreign document that is essential to the Spanish inheritance adds another layer to the process. And signing the inheritance deed does not always mean the matter is completely finished: once the deed reaches the Spanish Land Registry, the registrar may still consider that a particular aspect of the foreign succession title or the applicable foreign law has not been sufficiently established and suspend registration until the issue is remedied.

A Spanish will does not mean choosing Spanish law

This is worth repeating because it is a fairly common misconception. Making a will before a Spanish notary does not mean that the estate must necessarily be governed by Spanish succession law.

Subject to the applicable rules, the testator may expressly choose the law of a State whose nationality he or she holds. If no valid choice has been made, the general rules apply, normally starting with the deceased's habitual residence at the time of death.

So, for example, if your husband is considerably older, has three children from a previous marriage and wants to make a will in Spain, the mere existence of a Spanish will does not mean that the Spanish Civil Code automatically determines how the estate will ultimately be divided. First we need to establish which law applies. Then we can determine what that law actually allows.

That is part of succession planning.

Particular care is also needed where someone wants to maintain two wills: one dealing with assets in Spain and another dealing with assets in the country of origin or elsewhere. That structure can work perfectly well, but the wills need to be properly coordinated so that their respective scope is clear and, in particular, so that a revocation clause in one does not accidentally revoke the other.

Two properly coordinated wills can make an international succession considerably easier. Two wills drafted as though the other one did not exist can achieve precisely the opposite.

Not every foreign owner of Spanish assets has the same problem

Consider first a family that has lived in Spain for many years. The children went to school here, then university, and now work here. The parents' main home, bank accounts and much of their wealth are also located in Spain.

In a case like this, dealing with the assets that remain in the country of origin may eventually be more complicated than dealing with the Spanish estate itself. A Spanish will may still be very useful, but for practical purposes Spain has already become the family's main country.

Now consider a very different case.

Someone bought a holiday apartment on the Costa del Sol in 1986 for a figure that today would barely make a respectable deposit on a parking space. He spends two weeks a year there. His adult children have their own families abroad, have never lived in Spain and have no intention of moving here.

Succession planning has a very different practical purpose in that case. It is worth thinking not only about how the property will be inherited, but also about what the heirs are likely to do with it afterwards. Quite often, they will simply want to sell it without relocating to Spain or personally dealing with every stage of the process.

And at that point succession planning cannot realistically be separated from tax planning.

A succession plan that completely ignores the tax consequences is only half a plan.

Finally, we have the genuinely international cases.

Perhaps the client lives in Moscow. His children attended a private school in Marbella before studying at universities in Switzerland, the United Kingdom or the United States and now live in different European capitals. Meanwhile, the villa in La Zagaleta remains in Spain primarily as an investment asset.

Those are the situations in which I become particularly insistent about planning the succession properly in advance. Not because the situation will necessarily be impossible to solve after the owner's death – usually it will not be – but because the more countries are involved in the assets, the heirs and their places of residence, the less sense it makes to leave the heirs to discover afterwards which documents Spain requires, where those documents must be obtained and what needs to be done before they can actually be used here.

So, is a Spanish will compulsory for a foreign owner?

No.

The absence of a Spanish will does not invalidate an inheritance and does not prevent an estate from being dealt with properly in Spain. But a carefully prepared and coordinated Spanish will can be one of the most useful documents that can be put in place in advance to reduce future costs, delays and dependence on foreign documentation.

Ultimately, we come back to the question from the beginning. The difference is usually not between an inheritance that “can be done” and one that cannot.

The difference may be between an estate where much of the route was prepared in advance and one where the heirs – often living in another country and dealing with the matter at a particularly inconvenient moment in their lives – are discovering for the first time what Spain needs, who can issue it and what must be done before the document can actually be used here.

A Spanish will does not remove the need to deal with the inheritance.

But it can help prevent an international succession from becoming a chain of avoidable problems.