Article 9 of the Spanish Civil Code provides that, when a foreign property owner dies, even if he holds an official residence permit, the disposal of any assets he has in Spain will be governed by his own national law, not Spanish law. This article does not free the foreigner from Spanish inheritance taxes.

If my own country's law permits free disposal of the estate, this frees me from the Spanish rule of compulsory heirs as explained. English law and United States law provide free disposition of assets. German law and Scottish law require that some portion of the estate go to surviving children.

This freedom applies only when such foreigner has an existing foreign will or Spanish will. If he dies intestate, without having made a will, Spanish law will be applied to his assets in Spain and they will be divided equally among his children. This is a powerful argument for making a Spanish will disposing of my assets in Spain according to my wishes.

For citizens of the United Kingdom, the first complication arises here. Great Britain laws state that the disposition of real property such as land, houses and apartments will be governed by the law of the country where such property is located. English law also states that other assets, such as investments, will be governed by the law of the country where the deceased is legally domiciled at the time of his death.

So Spanish law says that English law will apply, and English law says that Spanish law will apply, because that is where the property is located. English citizens in theory is subject to the Spanish law, which may mean he can freely dispose of only one-third of his assets in Spain. But, even if I am British, I can make a Spanish will leaving my Spanish property to whomever I choose. In practice, any British citizen can make a Spanish will bequeathing his Spanish property to any person of his choice as long as his own national law is ruled by the principle of free disposition of property by testament. When the time comes, the will is executed and the inheritor takes possession of his new property.

The law also says that any foreigner officially resident in Spain is subject to Spanish inheritance law on his world-wide estate. In practice the authorities simply do not ask whether the testator is an official resident or not. They accept as valid the Spanish will disposing of only the Spanish property. The only requirement enforced by Spain is the payment of Spanish inheritance tax on property or assets located in Spain.

So most foreigners will find no problem in making a separate Spanish will to dispose of their immovable property in Spain, even though the law seems to say otherwise, whether they are residents or non-residents.

FOREIGN WILL IS VALID IN SPAIN

Legally, it is not absolutely necessary  to make a Spanish will to dispose for the assets in Spain. A n englishman who owns property in Spain can bequeath his Spanish apartment in the same British will he uses to dispose of his property in England, and his will can be probated in Spain. However, there are a number of steps which must take place in order to do this.

If I have lived in Spain for a long time, it may be necessary for me to recreate a legal domicile in my home country for purposes of making a will. I may be able to do this by filing an official "letter of intent" with my lawyers. This letter states that, even though I hold a Spanish residence permit now, I really intend to return to my home country in the end. This should be sufficient for establishing a legal domicile in my home country and will allow its laws to apply.

Let us suppose that I do this. My foreign will (which can be made at my consulate in Spain as long as the proper formalities are observed) must go through the following process before it can dispose of my Spanish assets:

1. A certified copy of the grant of probate must be legalised by the Spanish consul in the testator's home country, and a Spanish translation of this certified copy prepared. A Spanish lawyer must then be empowered to prepare a list of the assets in Spain, see that the Spanish inheritance taxes are paid, and handle the rest of the paperwork involved in distributing the assets.

2. Two lawyers registered in my home country, or a Notary,or a Spanish consul-general in my home country, must prepare a certificate of law, which affirms that the testator had the legal capacity to make a will; that the will is valid; that the Spanish law of obligatory heirs and the dispositions relating to property of spouses do not exist in the law of my country; that the will has been duly proved, and that the trustees named have the correct legal powers to administer the estate.

3. Finally, my will is declared effective to dispose of my assets in Spain, and my Spanish lawyer can carry this out.

It's a complicated, time-consuming and expensive process, and it is clearly better to make a Spanish will disposing of my assets in Spain.

MAKING A SPANISH WILL

In the case of the death of one spouse, for example, I may wish to leave all possible assets directly to the other spouse, without any inheritance to the children. As a foreigner, I should be able to do this.

Even if surviving children inherit their legal portion, it is not usually necessary for the house to be sold and the proceeds divided, for example. The surviving spouse continues to live in the house and administer it for the good of the children still at home. If the house is later sold, the children can then get their legal share of the price.

The lawyer will advise I as to how the will should read in order to carry out my intentions. People sometimes say that they want their Spanish flat sold and the proceeds divided among the children, for example. My lawyer will tell I that I cannot do this. I must leave the flat to the children in equal parts. They can then sell it and divide the proceeds, but I cannot order its sale in my will. There may be other provisions on which my lawyer can advise.

The will is made out in two columns, one in Spanish and one in English, or in whatever language the testator prefers. The will is then checked by the Notario and signed in his presence. Witnesses are not necessary. This is called a testamento abierto, an open will, which is the usual form. The Notary keeps the original in his files, gives I an authorised copy and sends a notification to the central registry in Madrid, called the Registro Central de Ultima Voluntad.

The certification numbers of all Spanish wills are kept on file here to ensure that a legal copy can always be found. If the will is lost or if I do not know whether the deceased person has made a Spanish will or not, I can apply to the central registry to find out if a Spanish will exists under that name. If it does exist, the registry will give I the number and the name of the Notary who made it in the first place. I can get a copy of the will from the Notary. Having a Spanish will certainly speeds up the legal processes of inheritance.

The Notary will charge around €60 for the will and the lawyer's fee could be about the same, a total of €120, although this could go much higher if the will is complicated or involves large sums of money.

Remember that husband and wife must each make separate wills, as they each own property separately.

I can also find out almost exactly how much inheritance tax my Spanish estate will attract. My lawyer will consult the table of rates and then I will know what to expect.

All too often, the existence of Spanish inheritance tax seems to come as a complete surprise to foreign property owners. This tax is charged even when the inheritance is between spouses, with only a minimum exemption, as explained in the next section.

Should I wish to keep secret the provisions of my will, I can also execute a testamento cerrado, a closed will. It is, of course, important to have a Spanish lawyers counsel to make sure my wishes meet the terms with Spanish law. I take this closed will, in an envelope, to the Notario, who seals the envelope and signs it. He then files it, just as with the open will.

Other types of wills are also valid. I can make a holographic will, in my own handwriting, but this later has to be authenticated as genuine before a judge, which means more time, trouble and expense. I can even make a verbal will, in the presence of five witnesses. Each of the five witnesses then has to testify to the Notario that these are truly the wishes of the deceased. The Notario then prepares a written will and certifies it.