Last will and testament

Inheritances and testament in Málaga

When a person dies in Spain, especially in Malaga (Andalusia), some procedures must be carried out to have different documents handy, which can be requested at any time by the administrative agencies if those who survive execute the last will and testament of the deceased.

Last will and testament

It is essential to be clear about who are the natural heirs (those recognized as legitimate in case of absence of a will), legal heirs (to whom the law grants at least one third of the total inheritance following an order to receive the inheritance) or volunteers (those who inherit the product of a will), all of them considered according to the mandatory norms that “limit the will of the testator” and that are administered in greater or lesser relevance according to the legal system in which they are applied.

Who cannot receive an inheritance: The guardian or curator of the deceased, the notary who wrote the will, the witnesses of the open will (in the presence or absence of the notary), the priest “who had confessed a disease” and relatives up to the fourth degree of consanguinity.

It is important to consider the following:

• In Spain the type of tax in case of inheritances (of deceased persons) or living donations, and their variations that are often due to differences in the bonuses and deductions that are applied in each case.
• As of January 1, 2015, the regional regulations on inheritances apply not only if the deceased or beneficiary lives in Spain, but also applies to all individuals who are residents in the European Economic Area.
• Since January 1, 2018, came into force an adjustment approved by the Andalusian Regional Government that sets the minimum amount exempt to inherit to one million Euros (this amount was previously 250,000 Euros). A measure that only affects inheritances to direct relatives of the deceased (groups 1 and 2: children, spouses, and parents) and that is not retroactive.

In any situation you face it is essential to know the benefits of carrying out a living donation or to inherit, considering the costs involved in both procedures to prevent the heir to be at crossroads, having to decide whether it is appropriate to accept the inheritance or renounce to it. Frequently, the amount of taxes, debts and guarantees of the deceased that must be honoured, plus the assets, turns renouncing to the inheritance into an option to avoid compromising your personal wealth.

The recent national crisis increased the number of renunciations to inheritances, especially in autonomous communities where the taxation in case of inheritance is higher.

What are the benefits of making a will in Spain?

Drafting a will (which is fairly inexpensive) is always a good idea since it prevents “multiple complications to the heirs and legatees” in the long run.

• This tool (testament) can prevent assets from being distributed according to the law and leave children and widowed spouses in a better position.
• If you do not have family members, it is convenient to write a will “since otherwise the State or an Autonomous Community will inherit the assets,” as the case may be.
• Leaving a will is a “personal and individual” act, which is why the Civil Code establishes:

“Two or more people cannot have joined testamentary capacity or appear in the same document.”

The document (testament) cannot be made through a proxy or “left at the will of a third party the appointment of heirs or legatees, or the designation of the portions of the inheritance.”

Considering the individual disposition of this act, in case of marriages, one spouse can change the testament “without the knowledge of the other spouse.”

In Spain, the testator is not always free to bequeath his/her estate as he/she pleases, due to the “legitimate” juridical figure of the descendants of the deceased, the ancestors, and the spouse,” in the order in which the law prioritizes them.

To understand the scope of the benefits of the most common types of testaments, the requirements to carry out and execute them must be known:

Open will before a notary

• In this type of will, unlike many other will documents which “require legal age,” if the person is 14 years of age, he/she can go alone (without the consent of its parents or guardians) to the notary to draft a will.
• The notary must inform the General Register of Last Wills that the testament has been made (without disclosing its content).
• The original document containing the last will of the testator be filed in the notary’s office and a copy will be granted to the testator.
• The testament before a notary can cost between 38 and 50 Euros.

Sealed will before a notary

• The testator can: Keep the will closed, entrust it to a reliable person or leave it to a Notary (to file it). In any case, where a third party is involved, the third party must “present the document to the Court as soon as he/she knows about the death of the testator,” then the corresponding judicial procedures must be followed to verify its authenticity.
• Those who are illiterate or cannot read like the blind, cannot make a sealed will.

Holograph will

• Only those who are of legal age and can write and sign can make a holograph will.
• The person who keeps the will must present it “within 10 days” after he/she knows about the death of the testator (otherwise, he/she must be liable for the damages that may cause).
• The will must be presented before the notary within a maximum period of 5 years as of the date the death of the testator.
• In any case, the document must be authenticated, and its veracity verified before proceeding to its execution. Those who are not satisfied can adhere to the legal right that assists them.

Last will and testament form

The situation of the deceased must be regulated before executing the last will. That implies everything from Social Security to the fulfilment of the tax obligations regarding the assets left as an inheritance.

If the person died in Malaga (Andalusia), you can verify the details on this page which belongs to the Regional Government (Junta) in addition to the following considerations.

Will documents:

• Death certificate
• Certificate of last wills and death insurance coverage from the Register of Last Wills
• Registration of the death before the Civil Registry
• Social Security

Inheritance deeds also consider filing a copy of the will or statement or the declaration of legal heirs.

Additionally, there is the presentation of the form of self-assessment of the tax on Inheritances and Donations (model D650 from the Tax Agency: Agencia Tributaria), which is presented by the people who are inheriting and that corresponds to the calculation of a fee on the assets and rights acquired by the taxpayer.

The presentation of the aforementioned form must be made within 6 months after the death of the deceased (or as of the date of the death certificate), at the competent liquidation office of the Autonomous Community where the main residence of the deceased is located.

In the case of payment of the municipal capital gains (which is paid at the city council where the property that has been inherited), when the estate is opened, there is a transfer of property to the heirs of the deceased, and if it is not an “onerous transmission, the municipal capital gains must be paid when the property experiences a real increase in value.”

Online forms:

Anyone who received an inheritance has the obligation to pay the tax on Inheritances and Donations before the corresponding autonomous community. This amount must be presented with the form D650 model (modelo D650).

Legal help for making a last will and testament

These procedures can be a little complicated, so the best option is to hire the services of a solicitor in Malaga specialized in inheritances and successions, who is familiar with the local requirements and can make sure to get the necessary documents on time and control them when you are considering making a will.

Although it is true that until now, the normal conditions in which one can determine how to inherit, the order, etc., have been analysed, there are some aspects that should be considered such as the effects of disinheriting a child. Even though it is possible to do so, it should not be overlooked that if said child has descendants (children) who are grandchildren of the deceased, the inheritance will correspond legitimately to them.

Another aspect is that if “the deceased was married under a community property scheme,” the corresponding inheritance is half of the total assets, rights, and obligations of the marriage.

“The surviving spouse owns half and will inherit the other half if there are no descendants or ascendants.”

Author: Rosa Vega Delgado
Biographical Info: Rosa Vega Delgado is a lawyer specialised in property law, property conveyancing and Labour Law.