Tenerife Solicitors

Information on Spanish Wills


N.B. IMPORTANT NOTE:

Most English Wills specify at the beginning that the person making the Will hereby cancels all previous Wills made by him or her. Unless this is stated to exclude Spanish wills, making a new English Will could inadvertently cancel your Spanish Will. If you subsequently make or revise an English Will, please ensure that the person drafting the English Will is aware of the existence of your Spanish Will.

Likewise, a marriage or divorce in either country MAY REVOKE or SUBSTANTIALLY ALTER your existing English and Spanish Wills. In the event that you get married or divorced, it is strongly recommended that you prepare new Wills in each country that you hold assets.

TENERIFE SOLICITORS CAN ALSO ASSIST WITH PREPARATION OF YOUR ENGLISH/WELSH WILL.

1. Who can make a will in Spain?

The testator (the person making the Will) must be over 14 years old and legally capable in order to make a valid will.

2. Types of wills

The two most common types of Will are:

(a) Open Will

This is the standard form of Will for most individuals in Spain. It is signed before a Notary, who keeps the original document at his office. The Notary will send a notification of the will to the Central Registry of Spanish Wills located in Madrid.

The Notary will usually request the presence of 2 witnesses. This is particularly required where the person making the Will is blind or illiterate.

Minors, persons who are blind, deaf, dumb, or spouses or close relatives of the testator cannot act as witnesses.

(b) Closed Will

The contents of this type of Will are kept secret by sealing them in an envelope.

You must declare before the Notary that the provisions of your Will are contained in the envelope and you must also declare whether you have written them yourself or whether a third party prepared the Will. Also you must declare whether you have signed it or it has been signed by a third person on your behalf.

The Notary then seals the envelope and signs it. It is then filed at the Notary’s office and a notification of the will is forwarded to the Central Registry of Spanish Wills located in Madrid.

The blind or illiterate individuals cannot make this type of closed Will.

3. The Central Registry of Spanish wills

Each Will is assigned a registration number in Spain which is retained on file at the Central Registry of Spanish wills in Madrid. The registration number ensures that the possessions and estate of the person making the Will cannot be sold or transferred illegally.

A legal copy of a Will can also be found at the Central Registry. In circumstances where it is now known if the deceased had made a Will, or if a known Will is lost, one can simply request a certificate from the Central Registry. If a Will exists, the Registry will provide you with the number and the name of the Notary who is holding it. One can then contact the Notary to obtain a copy of the Will.

4. Who inherits what?

The starting point is the Nationality of the deceased at the time of death. If the deceased was of Spanish Nationality (regardless of any dual nationality) then his or her estate will be administered in accordance with Spanish law.

If however the deceased was a British National (regardless of where he was most recently living) then the Spanish Courts will wish to apply the relevant English or Scottish law to his estate.

There is still some legal uncertainty regarding the above rule and there is the prospect of someone challenging the rule in the Spanish Supreme Court in an attempt to apply Spanish law. However, the above rule is currently accepted and adopted by local Judges and hence should be considered legally binding at this point in time.

For BRITISH NATIONALS, please proceed to paragraph 5 below.

For SPANISH NATIONALS please proceed to paragraph 6 below.

5. Estates Proceeding in accordance with English or Welsh Law (i.e. deceased was a British National)

a) Where the deceased made a Will:

The following information is intended for those governed by the laws of England & Wales. As English Solicitors, we do not provide advice regarding Scottish law. We can however put you in touch with a Scottish Lawyer should you require additional advice or assistance.

Under English or Welsh Law, individuals are free to leave their property to whosoever they choose in their Will (Spouse, children, milkman, the cat etc).

Please note that in England and Wales under the Inheritance (Protection for Family and Dependents) Act, anyone who was financially dependant on the deceased prior to his death (e.g. a child from another relationship, or a mistress etc) may be able to make a claim against the estate for maintenance where the Will does not make sufficient provision for their needs.

b) Where the deceased dies intestate (without leaving a Will) – BRITISH NATIONALS

If there was no Will (or if all or part of a Will is deemed void or unenforceable) the following rules will apply.

When a person dies without having left a valid will, he or she has died "intestate".

The following is intended as a guide and not a definitive account of the law. There may be exceptions to the following rules which are not specified here.

Deceased was married with children

  • Spouse gets everything up to £125,000 & all personal possessions.
  • Anything remaining is divided into two:-
    • Half to the children at 18 or earlier marriage.
    • Half stays in trust for spouse's lifetime - he or she gets the income but cannot sell or dissipate the assets. On spouse's death this half goes to the children.
If a child predeceases, leaving issue (children), his issue will take his share (equally between them if more than one child).

Deceased was Married but with No Children

  • If there are parents, brothers or sisters of the whole blood, nephew or nieces:
    • Spouse gets everything up to £200,000 & all personal possessions.
  • Anything remaining is divided into two:-
    • Half goes to spouse
    • Half goes to the parents. If no parent is living then it goes to brothers or sisters (or to their children).
Deceased was Married with no children or surviving parents, brothers or sisters of the whole blood, nephew or nieces

  • Spouse takes whole estate.
Deceased had children but was NOT Married

  • Estate goes to children at 18 or earlier if they legally marry.
  • If a child predeceases, leaving issue, his issue takes the same share.
Deceased was NOT Married and had NO children

  • Estate goes to parents.
  • If none, then to siblings of the whole blood or their issue.
  • If none, then to siblings of the half blood or their issue.
  • If none, then to grandparents.
  • If none, then to uncles and aunts of the whole blood or their issue.
  • If none, then to uncles and aunts of the half blood or their issue.
  • If there are no parents, siblings (whole or half blood), issue of siblings, grandparents, uncles and aunts (whole or half blood), or issue of uncles or aunts, estate goes to the Crown (or to the Duchy of Lancaster or the Duke of Cornwall).
6. Estates proceeding under Spanish Law (where deceased had Spanish Nationality – N.B. THE FOLLOWING RULES DO NOT APPLY TO THOSE WITH BRITISH NATIONALITY – PLEASE SEE SECTION 5. ABOVE FOR BRITISH NATIONALS)

a) If the deceased died leaving a valid will, there are statutory rules governing distribution of the assets.

The starting point is the surviving Spouse (if applicable). Where standard Community Property regime applies (the most commonly selected (or default) marital regime in Spain (Excluding Catalonia, Basque Country and other autonomous regions), the Spouse will automatically get to keep 50% of all the shared assets acquired during the marriage. Such assets are deemed to simply stay with the Spouse and hence they do not need to actually ‘pass’ to the Spouse after the deceased dies.

In addition, the Spouse gets to keep all of his or her own assets (that were held exclusively by the Spouse prior to the marriage). Finally, the Spouse may keep 100% of any of his or her own personal inheritance or gifts received from 3rd parties, regardless of when the spouse received them.

The remainder of the estate (or all of the estate if there was no surviving spouse) is divided up into 3 shares as follows:

The First 1/3 share

This share goes automatically and immediately to the children (in equal shares if more than one child). Should any of those children have died before the deceased died, then that child’s children (i.e. the deceased’s grandchildren) will take that child’s share by substitution. Such substitution to any grandchildren will also apply to the Spouse’s life interest when it eventually reverts to the children after the Spouse’s death.

If there are no such children or grandchildren, the deceased’s parent(s) will take the said share (split equally if both parents are still alive).

The Second 1/3 share

The Spouse retains a ‘life interest’ in this share, meaning that the spouse may enjoy such assets, live in any property, invest any money and keep the interest etc, but she may not dispose of the starting assets.

Upon her death (or immediately if there is no Spouse), this 1/3 share goes directly to the deceased’s children (in amounts to be specified in the Will, or if not specified, in equal shares. The survivorship/substitution to grandchildren rule also applies to this 1/3 share, as does the Parents’ entitlement if there are no children or grandchildren.

If there are neither children, grandchildren or parents surviving, then a surviving spouse will take this share permanently from the outset rather than waiting until the end of the ‘life interest’.

The third 1/3 share

This share can be left to Voluntary Heirs, namely anyone the deceased chooses in his Will (as one would typically do under an English Will).

If there are no compulsory heirs, the Voluntary Heirs may inherit all the deceased's assets.

b) If the deceased died intestate (without a Will) (SPANISH NATIONALS ONLY) – If the deceased dies leaving no will, the Spanish law of succession determines who shall inherit. The deceased is considered to have died intestate in the following cases:

  • When there appear to be assets which have not been included in the deceased's will. These assets shall be distributed in the manner that the Spanish law provides for intestacy (see below).
  • When the heirs do not accept the will, or it is not accepted within the period legally required.
  • When the inheritor is incapable of inheriting.
  • When the will has been destroyed.
  • When the will does not include all the obligatory heirs, or includes someone considered as compulsory heir when he turns not to be.
  • When the will is null and void.
The Spanish laws of succession set out the following Order of Entitlement in case of intestacy:

Once again, the Spouse is usually entitled to 50% of the estate under Community Property rules. Thereafter, the other 50% is given entirely to the first eligible person/group in the following list.

  1. Children (whether legitimate, illegitimate or adopted). If any child dies before the deceased, then any children of that child (i.e. grandchildren of the deceased) will share that child’s share (equally if more than one)
  2. Parents – If no children or grandchildren, the Parents have the next right to inherit (in equal shares if both are alive)
  3. Spouse – If no children, grandchildren or parents, then a surviving Spouse will inherit.
    Thereafter, the remaining order is as follows:
  4. Brothers and Sisters.
  5. Nephews / Nieces corresponding to the Brother and Sister at 4. above.
  6. Cousins
  7. Spanish Government.


To obtain a no-obligation quotation for preparing your Will, please complete and return the form below. You can do this online or you may print the form to complete and return at your leisure. You will then be contacted as soon as possible with a quotation.

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