Ricardo Benítez, an Argentine national, lived in Buenos Aires and owned a flat in Madrid with a reference value of 420,000 € and an account with 60,000 €, as well as an apartment in Palermo. In 2020 he made a will before a notary in Buenos Aires leaving everything in equal shares to his two children: Laura, who has lived in Madrid for ten years, and Martín, who is still in Buenos Aires. He died in January. The Madrid bank asks them for "the Spanish will", the Madrid notary asks about Argentine law and Laura does not know where to start.
Formal validity: the form of the place where it was made
A will made outside Spain is not invalid here for that reason. Spain applies the 1961 Hague Convention on the conflicts of laws relating to the form of testamentary dispositions, which accepts as formally valid a will that complies with, among others, the law of the place where it was made, the law of the testator's nationality or that of their domicile or habitual residence. European Regulation 650/2012 contains an equivalent criterion for written dispositions.
Ricardo's will, made before a notary in Buenos Aires in the Argentine form, is formally valid in Spain. Which law decides the content of the inheritance is another matter.
Which law governs the inheritance
Regulation 650/2012 applies in Spain even if the law it points to is that of a country outside the European Union. Its general rule is the law of the deceased's last habitual residence, unless in the will they chose the law of their nationality.
Ricardo lived in Argentina. The law applicable to his succession is, in principle, Argentine law, including for the Madrid flat. Whether that law in turn refers to Spanish law for property located here is a technical question that must be analysed with Argentine law in hand, and that is confirmed by an Argentine lawyer; we give no opinion on foreign law. We explain the distinction between the law of succession and tax law in which law applies to an international inheritance.
Which documents the Spanish notary asks for
To accept the inheritance in Spain and register the flat in the names of Laura and Martín, the Madrid notary will need, at a minimum:
| Document | What for | Notes |
|---|---|---|
| Death certificate | Proving the death and its date | Apostilled |
| Authentic copy of the Argentine will | Title of succession | Apostilled; sworn translation only if it is not in Spanish |
| Certificate from the register of wills in the country of origin | Checking there is no later will | Handled by the Argentine adviser |
| Certificate from the Spanish General Register of Last Wills | Checking whether there is a will in Spain | If a later one existed, it could alter the earlier one |
| Proof of the applicable foreign law | So that the notary knows what Argentine law says | A report by a lawyer from that country or a consular certificate |
| NIE of each heir | Signing and taxes in Spain | Martín must obtain one |
The NIE is the Spanish tax identification number for foreigners. Argentina is a party to the apostille convention, so consular legalisation is not needed. And since the will is in Spanish, translation is avoided; with a German or English will, the sworn translation would add weeks.
Within the European Union the process can be simplified with the European Certificate of Succession, which the Regulation created so that heirs can prove their status in other Member States. It is no use for Argentina: there you work with the local documents and prove them in Spain.
The tax does not wait for the documents
The Spanish inheritance and gift tax (Impuesto sobre Sucesiones y Donaciones, ISD) accrues on the day of death and the deadline is six months (article 67 of the tax's Regulations), with an extension of another six if requested within the first five. Gathering apostilles, foreign-law reports and NIEs takes months. Requesting the extension is almost essential in an inheritance with a foreign will; it is covered in how long I have to settle an inheritance.
Who is taxed and where, with figures
Ricardo did not live in Spain, so the tax is managed by the State's Agencia Tributaria (the Spanish tax agency), using Modelo 650. The second additional provision of Law 29/1987 allows the rules of the autonomous community where the greatest value of the assets located in Spain lies to be applied: Madrid.
- Laura lives in Spain: personal liability. She is taxed on her half of everything, including the Palermo apartment (say 200,000 €, that is, 100,000 € for her).
- Martín lives in Argentina: limited liability. He is only taxed on his half of the assets located in Spain. In addition, as he lives outside the European Union, he must appoint a representative in Spain before the filing deadline ends (article 18.4 of the tax's Regulations).
With the State scale and reduction (group II), and no regional benefits:
- Laura: 210,000 € of the flat + 30,000 € of the account + 100,000 € of the apartment = 340,000 €. Net taxable base: 324,043.13 €. Tax: 40,011.04 € + 25.5 % of 84,654 € = 61,597.81 €, from which she can deduct what she paid in Argentina in a similar tax, if any, subject to the limit in article 23.
- Martín: 210,000 € + 30,000 € = 240,000 €. Net taxable base: 224,043.13 €. Tax: 23,063.25 € + 21.25 % of 64,408.30 € = 36,750.01 €.
The Madrid rules both can apply will change those figures a great deal, but the difference in base between the siblings remains: Laura's residence pulls the Argentine apartment into the Spanish tax.
Article 25.2 of Law 29/1987 says that, for deeds authorised by foreign officials, the limitation period runs from when they are presented to any Spanish authority. If the heirs let the years go by without declaring and one day present the will in order to sell the flat, the authorities can then assess the full tax, with interest and whatever else is due. There is no silent limitation with a foreign title.
Common mistakes
- Thinking you need to "convert" the will into a Spanish one with a new will. That is not necessary: the foreign will is used with the formal requirements described above.
- Forgetting the Spanish certificate of last wills. Many foreigners with assets here make a second will in Spain, and the relationship between the two must be reviewed.
- Assuming the foreign will decides the taxes. It decides the division; the tax is decided by residence and the location of the assets.
- Waiting until you have everything before starting. The six months run from the death.
If you are inheriting under a will made in another country, send us the copy, the deceased's residence and each heir's through the inheritance form. We coordinate with the professional you appoint in the country of the will to prove its law before the Spanish notary.
Laura and Martín requested the extension in the fourth month, obtained the report on Argentine law and signed the acceptance in Madrid; Martín did so with a representative appointed in Spain.
Files that straddle two countries like these are everyday work at Salama Tax for inheritance and gifts, and the guide to international inheritances and gifts summarises the tax rules.