Foreigners who intend to inherit assets in Spain should know that succession laws tend to be different from country to country.
Primarily, one needs to take into account that in Spain the national law of the deceased’s country of origin regulates succession, which applies without regard to the citizenship or origin of these assets; in other countries, such as in England, determining the law to apply to the asset is ascertained by the specific characteristic itself of the deceased’s assets. As such, the procedures to inherit these assets take into account the nationality, origin and situation of the assets themselves.
In Spain, unity and universality principles govern and are at the foundation of inheritance law; these principles are contrary to legal fragmentation where a law from one country may govern one specific asset, while a law from another country may govern another. Article 9.8 of the Spanish Civil Code, in regards to international inheritance, establishes these principles of unity and universality to apply. As such, inheritors must subrogate themselves in the same legal status as the deceased.
When a foreigner has some connection with Spanish territory, he needs to distinguish between two assumptions in regards to determining his inheritance:
1) The deceased foreigner has not drawn up a will in Spain
Within this assumption, one of two scenarios must be determined.
(a) The foreigner has not drawn up a will in another country
In most cases, an affidavit or other document exists stating the foreigner died intestate. In each case, the content of this document in question will have to be adapted to the law of the deceased’s country of origin and, at the least, will be given deference by the notorial authority with the same degree as if the document had been legalized by Spanish Notaries. An exequatur is not usually required either, since a document such as this is usually treated as an exercise of voluntary jurisdiction, and as such, the document should be legalized, and if necessary, translated.
(b) The foreigner has drawn up a will in another country
It’s one possible situation that the inheritors could be in possession of a public, foreign document which establishes that these heirs will in fact inherit from the deceased in question by virtue of an anticipated inheritance or will. Equally likely, the inheritors may be determined and named by the will and, as such, will be able to inherit from this will, as established by the Hague Convention of 5 October 1961, on the conflict of laws relating to the form of testamentary dispositions, and enforced in Spain since 10 June 1988.
2) The foreigner has drawn up a will in Spain
In this case, the most common-form will, which usually grants foreigner’s inheritance rights in Spain, functions in the same way as it does with inheritors who are of Spanish heritage and are granted inheritance rights by the power of this document.
In conclusion, drawing up a will in Spain is not necessarily imperative; but it is beneficial when saving time and money, since otherwise inheritors are required to prove which assets they will inherit and must show the certificates of inheritance before they are able to take any legal action in Spain. Furthermore, they will have to pay for official translations and the legalization of these documents. Therefore, it is in the inheritor’s best interest to contact experts in situ who are better able to follow up on any inquiries about the inheritance to insure that foreign inheritors are granted their full inheritance rights.
Mariscal Abogados, Spanish lawyers
This article is not considered as legal advice.