Inheritance Law and Wills in Spain for dummies
"According to Spanish law, the succession is governed by national law of the deceased at time of death" It is the well known provision 9.8 of our Napoleonic Civil Code: "La sucesión por causa de muerte se regirá por la Ley nacional del causante en el momento de su fallecimiento, cualesquiera que sean la naturaleza de los bienes y el país donde se encuentren. Sin embargo, las disposiciones hechas en testamento y los pactos sucesorios ordenados conforme a la Ley nacional del testador o del disponente en el momento de su otorgamiento conservarán su validez, aunque sea otra la Ley que rija la sucesión, si bien las legítimas se ajustarán, en su caso, a esta última. Los derechos que por ministerio de la Ley se atribuyan al cónyuge supérstite se regirán por la misma Ley que regule los efectos del matrimonio, a salvo siempre las legítimas de los descendientes" This dense provision actually set these three basic and simple rules: 1. Inheritance matters are to be governed by your National Law at the moment of your death, regardless nature of assets and country where they are located. "Your nationality will govern your inheritance” 2. Old wills or inheritance agreements made in the past under a National Law, different to the nationality you have when you die will be valid if they respect rules of reserved portions "Your foreign past wills are valid if they respect legal heirs" 3. Inheritance Law applicable to your widow will be the same as Marital Law, always respecting reserved portions of descendants. "Your foreign widow comes after your descendant legal heirs"
But who are those "legal heirs" and how much they get by Law?
You can either specify particular properties o assets to be attributed to certain person/s or just make general statements on who are your heirs. When you attribute a good to a specific person, this is called a “legacy” and the beneficiary is a "legatee". These legacies also need to respect the legal portions of legal heirs. You can also designate one or more persons to deal with the inheritance: executor/s. It is also possible to appoint guardians when there are minor children, for the case when both parents are missing. The will is always revocable, meaning that you can always change it. It does not impede you to sell your assets as the will have no legal effects till you die
If you want to leave your widow or widower with the greatest possible rights, you can bequeath him/her the “universal" usufruct, (all you had before dying) and name your children as heirs equally. The widow/ widower will be able to use and receive income and benefits of the common patrimony (if they were married under the common goods system). In no event he/she may sell anything without all the children give their consent. Once the widow/widower dies, the children will receive, without limitation, inheritance of both parents.
If you leave no will, Law will determine who are your heirs. Who are the preferent heirs for Law?
1.Your widow/widower: Law will always give to her/him the usufruct of one third of your goods 2. Your children: Law will distribute your goods among them. Shares will be equal. If one of your children had died before you, your grandsons/granddaughters would receive this portion, if there were no grandsons/granddaughters of this predeceased child, his/her brothers and sisters (yours sons and daughters) would get an increase on the portion of your inheritance. 3.Your parents will inherit all your assets if you die without children 4.Your grandparents will be your legal heirs if you are an orphan and have no children Finally, if you had no children, no parents, no grandparents….your widow/widower would be your sole heir. As you can see our system, “ inherited” from Old Roman gives prevalence to consanguinity over affinity
If you die without a will, your heirs will have to formalize what is called a”certificate of inheritance", an affidavit that formally declares who are the relatives entitled to inherit under the above explained rules. Who does need to issue the formal declaration? If, according to rules of Law, your heirs are your descendants, ascendants or spouse, this affidavit needs to be made by the local Notary where you had your last domicile. If the heirs under the law are other ones (siblings, children of brothers or more distant degree relatives), the declaration of heirs have to be made by the Judge. What documents will your heirs have to bring to the Notary? 1.Personal identification card
2.Certificate of death 3.Negative Certificate from the General Registry of last wills 4.Family Book 5.Two witnesses among friends of the deceased´s family, no relatives Costs of this process are three folded to costs of a will if the statement is made by a notary and for more than three if the statement needs to be done before the judge.