This question may have arisen to those living in Spain for some years now. Our personal legal regulation may get a little bit blurry once residence place has changed or you are no longer sure if the nationality has changed in legal terms. In this post we will explain if you need a Spanish Will or not and what to do to make a valid one in case you need it.
First of all, it is not necessary to hold a Spanish nationality to be able to make a Spanish will. If properties or any other kind of valuable assets are based in Spain or publishes in the Spanish public registry it will be possible to make a will concerning those assets. Figuring out if you can ask for Spanish nationality may look difficult but is a simple reasoning after all. Articles concerning Spanish nationality issues are at the Civil Code (Código Civil) in the first book, title number one “Of Spaniards and foreign”. In this chapter we can find all requirements to be a Spanish national and under what requirements are you entitled to ask for the nationality. The first article of the chapter, article 17 name all circumstances under a person is consider Spaniard by origin, these circumstances are; 1º those born of a Spanish mother or father, 2º those born in Spain with foreign parents, if at least one of them was also born in Spain. 3º those born in Spain with foreign parents if they both lack nationality or any of their nationalities can be hold by their offspring. 4º those born in Spain whose filiation are not determined. In these cases are presumed born in Spain those over 18 years old whose first residence place known in Spain.
These are the cases when somebody actually born in Spain can be considered a Spanish citizen. In the cases that a foreign moved to Spain and has been living long enough to start wondering if it’s possible to opt for Spanish nationality, it will be necessary to look for it in another article, this is the article 22 of the same Act. This article establishes that Spanish nationality will be granted to those living in Spain for 10 years. It will be necessary residence of 5 years for refugees and 2 years for nationals of Spanish American countries, Andorra, Filipinas, Equatorial Guinea, Portugal or Sephardic. Among other requirements and circumstances, for residency to count, it will have to be continued (not interrupted by moving to other country. It is not necessary to be living in Spain for 10 years for those who have married a Spanish national, those born in Spain among other not so common circumstances.
Anyhow, making a Spanish Will does not have as a mandatory requirement to be a Spain national, as commented before, any properties or assets bind or placed in Spain can be included in the Spanish Will. It is recommendable to make a Spanish will for Spanish assets and another will in the home country for the assets that have remained there. When making a Will in Spain there are several important facts to bear in mind with; the existence of “legítimas”, mandatory partitions of your heritage, the mandatory requirement of handle your will before a Spanish Notary and so on. All this requirements make it hard of a non-Spanish speaker person to successfully create a will under the legalities of Spanish Laws, thus we recommend to hire a lawyer specialized on it. In this post we will explain separately all main steps to get through a will without major problems.
For making a will it will be necessary to choose witnesses in order to “certify” that the will is the one he wrote. Will is made before a Spanish Notary, and the testator will have to dictate the document or hand it written. Notary will do all procedures in a single act called “the reading of the will”, in this act the notary will identify the testator and the two witnesses, read the document – after it was dictated or handed by the testator – enouncing day, month, year, place, and time. After this, the document will be signed by the testator and witnesses.
Please note that in Spain is it common to hire an executor, although it is possible to do it. The content of the Will have to be clear and, as the article 684 of the Civil Code says, if the will is going to be made in a foreign language, a sworn translator must be hired in order to do he correct writing of the will.
When writing a Will in Spain or thinking about making one, is important to bear in mind with the Law of obligatory Heirs (Ley de herederos forzosos) this means in quick terms, that any will have to be divided in three parts. One third must be left to the children, divided between them equally, another third goes also to the family, this is called “tercio de mejora” but unlike the first one, the testator can actually decide about this one more freely that with the first third we talked about. The last third is at the complete disposal of the testator, no restrictions on this are made.
After the death of the owner of the will, if the deceased passed away in another country, the death certificate will have to be officially translated and notarized, if it takes place in Spain, a death certificate must be produced and the Inheritance Tax, derived from the heritage left has to be paid within 6 months.
Inheritances are always a sensitive issue to deal with and most of the time it takes more time than it should, whether to hand a will or to accept one before Notary, we recommend to hire a lawyer. Wills can create some difficult situations or tensions between family members, absolutely undesirable situation in such a difficult moment of loss. For your complete peace of mind, we strongly recommend to hire a lawyer. This not only will make things easier but allow you to skip long and time-consuming formalities.