In the next five years at least 200,000 families from other parts of Europe are expected to buy homes in the province of Malaga, initially just for visits but eventually following in the footsteps of the 65,000 foreigners already living here and settling on a permanent basis. When they die, most will leave assets in Spain that will need to be transferred to their heirs.
The step to follow for dealing with an inheritance involving assets in Spain would be to establish: what assets exist in Spain, whether there was a valid Spanish will or other covering the assets in Spain, which law should apply to the inheritance, which heirs are entitled to the assets, complete the documentation needed to transfer title of the assets in Spain to the persons entitled, pay the necessary taxes and finally register the title of the new owners.
The detailed procedures to be followed will depend upon whether or not the person who has died made a valid will, either in Spain or anywhere else. A will made abroad can cover the Spanish assets. However, because the Will is drawn up in a foreign country and under a foreign law, it inexorably leads to a very costly and time consuming exercise.
While Spaniards must follow the Spanish civil rules for disposing of their assets, foreigners are free to dispose of their Spanish possessions as long as they made a will in accordance with their own national law.
If there is no will, and the person is resident in Spain or even in another country, the Spanish succession law may apply or it may result in a legal conflict which would only be resolved by the rules of international private law.
Spanish law provides for only limited freedom of testamentary disposition. A person making a Will can say what he/she wishes in it, but certain groups of people - mainly the husband/wife and children - have priority rights (Legitima) which, if not reflected in the Will, can allow them to challenge it. In a typical case of a man with a wife and children the man will only have total freedom to dispose of one third of his estate. One third must pass to his children equally. The second third is subject to an automatic life interest in favour of his wife and can also only be distributed, after her death, amongst his children - but in such proportions as he thinks fit.
In practice, as long as there is a Spanish will, the Spanish accept that English law should apply to both land and other assets located in Spain; therefore, English nationals can dispose of their assets located in Spain as freely as they could in England.
Next month: In the second part of this two part article, Maria Luisa Blanco explains how to go about making a will.