The new rules on the choice of law applicable to succession make Spanish inheritance law particularly relevant for German nationals residing in Spain. In Spain, there are generally three different ways of making a valid will. Article 676 of the Spanish Civil Code distinguishes between the following three types of will, which also have equivalents under German law:

A) The Holographic Will

The holographic will (testamento ológrafo) is characterised by its simplicity, as the testator merely has to write his or her last wishes by hand. However, despite being simple for the testator to make, this type of will may involve a more complex procedure for the heirs and provides less legal certainty due to the subsequent authentication and probate formalities. German law also provides for the possibility of making a handwritten will in the form of an “Eigenhändiges Testament”.

Requirements:

In order to make a valid holographic will under Spanish law, the testator must be of legal age, write the entire will by hand and sign it. The will must also state the date on which it was made. Any deletions, corrections or words inserted between the lines must be expressly validated by the testator. In order to avoid formal defects, it is advisable to avoid deletions and corrections altogether. Similar requirements apply to the German “Eigenhändiges Testament”, which may likewise be made by means of a declaration written and signed entirely by the testator.

Language:

Unlike the open notarial will discussed below, this type of will makes it possible for the testator to write his or her last wishes entirely and exclusively in German.

Authentication and Probate Procedure:

Although this type of will is one of the simplest ways for the testator to record his or her last wishes, it may at the same time involve considerably more work for the heirs. As it is a private document, after the testator’s death it must undergo the corresponding authentication and probate procedure in accordance with the applicable legal requirements.

As part of this procedure, the authenticity of the will and, in particular, whether the handwriting corresponds to that of the testator must be established. For this purpose, the legally admissible means of evidence may be used and, where necessary, expert evidence may be obtained.

Once the authenticity of the will has been established, it is formally incorporated into the relevant probate records. This authentication does not, however, prevent subsequent legal proceedings concerning the validity, interpretation or content of the will.

B) The Closed Will

The closed will (testamento cerrado), like the open will, is a notarial will. Unlike an open will, however, the contents of a closed will remain unknown to the notary and are known only to the testator. As with an open will, witnesses are only required where this is expressly required by law or by the circumstances of the individual case.

As regards its form, a closed will may be handwritten by the testator, prepared mechanically or drafted by another person. If it is handwritten by the testator, it must be signed in accordance with the applicable formal requirements. If it is prepared mechanically or by a third party, the corresponding statutory signature requirements must be observed.

The particular feature of this type of will is, as mentioned above, that its contents remain secret. It must therefore be presented in a closed and sealed envelope. The testator must declare before the notary that the document contained in the envelope constitutes his or her will and represents his or her last wishes.

The notary will then verify the identity and legal capacity of the testator and execute the corresponding notarial instrument in accordance with the applicable legal requirements. The will may remain in the possession of the testator, be entrusted to another person for safekeeping or be deposited with the notary.

Following the testator’s death, the legally prescribed procedure for opening and formally recording the closed will must be carried out. This procedure has certain similarities with the procedure applicable to holographic wills.

German law also expressly provides for notarial wills. Pursuant to § 2232 BGB, a will may be made before a notary by the testator declaring his or her last wishes to the notary or by handing the notary a document with the declaration that it contains his or her last wishes. The document may be handed over either open or sealed and does not have to have been written by the testator. German law nevertheless provides for certain restrictions in specific cases.

C) The Open Will

The open notarial will (testamento abierto) is characterised by being executed before a notary, who is aware of its contents. The testator communicates his or her last wishes to the notary so that they can be recorded in the corresponding public instrument. The notary not only verifies the testator’s identity but also assesses his or her legal capacity to make a will.

As a general rule, no additional witnesses are required, except in the cases provided for by law. Where the circumstances so require, witnesses, experts or interpreters may also participate in accordance with the applicable legislation.

Safekeeping of the Will:

Unlike a closed will, an open will is retained as part of the notarial records. The testator may obtain the corresponding certified copy in accordance with the applicable rules. During the testator’s lifetime, the contents of the will remain protected from third parties. Following the testator’s death, persons legally entitled to do so may request the corresponding copies in accordance with the applicable legislation.

Costs of a Notarial Will

Notarial fees and therefore the costs associated with making a will can vary considerably depending on whether the will is made in Germany or Spain. In Germany, notarial fees depend, among other factors, on the relevant value of the estate in accordance with German fee regulations. In Spain, the notarial fees applicable to wills are not calculated in the same way on the basis of the total value of the estate. Consequently, the cost of making a notarial will may differ significantly between the two countries.

 

Summary and Recommendations

With regard to the different types of wills available in Spain, the following advantages and disadvantages can be identified:

With regard to whether a will should be made in Spain or Germany, for a person residing in Spain it may be advisable, for practical reasons and depending on the individual circumstances, to make the will before a Spanish notary.

In cross-border succession matters, it is particularly important to coordinate the place where the will is made with the law applicable to the succession. If German inheritance law is to apply, the corresponding choice of law should be properly included in the will where required. In certain cases, it may also be advisable to prepare the will in both German and Spanish and to obtain bilingual legal advice in order to avoid subsequent problems of interpretation and implementation. Further information on the choice of law applicable to succession.

Important Information for Married Couples

When planning a cross-border succession, married couples should pay particular attention to the differences between Spanish and German law regarding joint wills and testamentary arrangements between spouses. It is therefore advisable to assess the individual matrimonial and succession circumstances before making a will.

Important Information on the Choice of Law

For an estate to be governed by German inheritance law, merely making the will in Germany is not in itself sufficient where the testator resides in Spain. In cross-border succession matters, it is essential to determine the applicable law correctly and, where appropriate, to make an express choice of law in the will. Further information on the choice of law for German nationals residing in Spain can be found in our article “The Choice of Law Applicable to Succession in Spain”.

Our law firm will be pleased to analyse your individual circumstances, advise you on your estate planning and assist you with the necessary legal, administrative and tax matters. If you require further information or have any specific questions on this subject, please feel free to contact us by email or telephone.

Author: 

Christoph Sander
Lawyer and Tax Advisor
CEO, Partner, Director
info@sspartners.es
Tel: (+34) 951 12 13 06
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