Probate in Spain08/08/2013
With an estimate of around 250,000 British owning (and in many cases residing in) properties in Spain, it is quite common to encounter their relatives, descendants and potential beneficiaries of the estates of the owners, facing difficult circumstances when those pass away leaving a property and some other assets in his or her estate.
It means that, in addition to bereavement and grief, the relatives and potential beneficiaries of the deceased find themselves not exactly knowing what to do and in the middle of a legal situation in which the succession of the estate is partially ruled by two completely different legal systems or jurisdictions, the Spanish and the English.
On top of this, some factors add even more confusion to the process, such as a foreign language related to an intricate matter, the distance (for most of beneficiaries reside in the UK while the assets they will inherit are in Spain), the fact that on many occasions there is no will (neither Spanish nor English) validly granted and in place, or that even if granted, one or both wills are lost or their whereabouts are uncertain.
The process to follow for the inheritance, even if it cannot be considered simple, is quite straightforward and thoroughly detailed and set by the rules solving the conflict of jurisdiction between Spanish and English Law.
There are two general rules governing the succession:
- The assets in Spain will always be transmitted under Spanish Law (even if there’s a valid will granted in England) and the inheritance taxes (in relation to those assets) will be paid in Spain.
- Spanish Law applies to all Spanish citizens. This rule is very strict and does not allow the free disposal of the assets – two thirds of the estate must go to the immediate descendants. However, this rule does not apply to foreigners, who can, even if they are residents in Spain at the time of their passing, bequeath, as a legacy, any part of the estate or the whole of it to the spouse, descendant, relative or any other party.
The first step to take will be to know if there is a valid will in place. In Spain this is easy to search, as all the wills, right after being granted at the Notary, are registered in special office in Madrid. This office is public and anyone with an interest in a succession can have a certificate stating if any deceased party granted a will, and how to obtain copies of it. If there is a will in place then a “testate” inheritance process will follow, i.e. going as per the clauses and dispositions granted by the deceased. If there is not a valid will in place then the inheritance follows the “intestate” process and the Law will determine entirely the actual beneficiaries and the share of the estate they will inherit.
After the application of the previous and general rules, it is necessary to ascertain and identify the total number of inheritors that the estate will have, so these beneficiaries can claim the share of the estate they’re entitled.
This is done by following the details of the deceased as per his or her birth, marriage and death certificate, and deploying from there the full family tree (spouse / s, children, second matrimony, etc.). An important point is that the inheritance is a right, not a liability – in other words, nobody can be forced to inherit. This means that any potential beneficiary can simply reject his or her part of the estate, if he or she doesn’t want to inherit a property encumbered with legal charges (a quite common circumstance while inheriting a mortgaged property).
The last step will be to take the complete itinerary of facts and the supporting documents (mainly certificates, all of which must be originals) as described above, to the Notary. An important note must be added here: all the documents issued by an English office or drawn in English must be translated into Spanish and legalised.
The Notary will then review all the information and documents submitted with the file, request for any necessary item missing, and will finally issue the deeds containing the transfer of ownership from the deceased party to the beneficiaries. All the beneficiaries must sign the deeds at the Notary office, as a formal proof of acceptance.
This signing can be made personally or via Power of Attorney. These deeds, once taken to the Land Registry for inscription and paid the inheritance taxes, will be full, formal and legal evidence of ownership. It is important to note also that the Spanish State requests for the whole process to be completed within six months from date of death, otherwise surcharges of taxes (in the form of 25 % penalty fee on the taxes to pay) will apply. It is possible to apply for an extension of this term.
Please don’t hesitate to contact is if you would like a no obligation consultation with regards to any element of wills or inheritance.
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