Spanish Probate Abogado
If you have inherited assets in Spain, you may well be feeling somewhat daunted by the task that lies ahead in claiming them, if you decide you want to accept the inheritance.
In Spain, inheritance is a right rather than an obligation, and there is the option to refuse the bequest. In many cases beneficiaries of estates decide not to accept what has been left to them mainly due to the debts on the estate which exceed the value of it. In rejecting an inheritance, it automatically falls to the next in line to inherit.
There is always much to do when administering an estate, regardless of which country you are in or which laws apply. It can be particularly challenging if you are not based locally and the best option may be to instruct Spanish probate lawyers to deal with the estate.
Giambrone is an international, award-winning law firm with offices in several European countries including the UK and Spain. We have a team of specialist Spanish probate lawyers at your disposal, all of whom speak fluent English and are competent in the law and are fully aware of cultural variations that apply across the different regions of Spain. Our experts will be able to advise you as to the value of the estate early on so that you can make an informed decision as to whether to accept or decline your inheritance. This is valuable guidance to have at the onset enabling you to avoid wasting time and money if the estate is not a viable proposition.
The following information will assist you in understanding how the Spanish probate system works, of course, we are available on a one-to-one basis to answer your individual questions.
What are the main differences between Spanish probate law and UK probate law?
Spanish probate law is very different to that in the UK in numerous ways. First, as a beneficiary, you would be required to appear before a Spanish notary to state whether or not you accept the inheritance. Secondly, as previously stated, in Spain you have a choice as to whether you accept an inheritance, it is a right rather than an obligation.
If you are unable to appear in person before the Notary, then you can commission a power of attorney and appoint another person, usually be the Spanish probate abogado (solicitor) to manage the estate.
If you accept the inheritance if the estate involves land or property, then a ‘deed of acceptance’ will need to be prepared, and this will need to be executed in front of a Spanish Notary.
I’ve inherited assets from a non-Spanish resident, will the rules differ?
A new law that took effect on 1 January 2015 altered the existing law in this respect. Previously, if you inherited assets from a non-Spanish resident, the State Rules would apply concerning inheritance tax, no matter where the assets were based in Spain. This contradicted the law applying to Spanish residents, who were able to take advantage of the beneficial tax allowances allocated by the various autonomous communities. This was considered discriminatory, however, the new EU law now means that beneficiaries of non-resident EU citizens with assets in Spain can enjoy the same tax allowances as Spanish nationals.
What is involved in the Spanish probate process?
The Spanish probate process can be summarised into nine main steps:
Step 1: Documents and information
The process starts with assembling all the necessary documentation. You will need:
- originals of the death certificate and the will;
- the title deeds for any property;
- a receipt for the most recent property rates payment;
- bank account numbers;
- the NIEs (fiscal number certificates) of the deceased
- date of death statements
- UK Grant of Probate.
If the deceased died intestate you must provide proof of your relationship to the deceased, such as a birth or marriage certificate. You will also need your own NIE (see below).
Step 2: Power of Attorney
The Spanish probate procedure involves a great deal of personal attendance, which may to be difficult if you are not based in Spain, a power of attorney will be essential to enable a third party to act in person on your behalf, and this will usually be your Spanish probate lawyer. This can be arranged in the UK if you are unable to get to Spain to sign a power of attorney.
Step 3: Obtaining a NIE
A ‘Número de Identificación de Extranjero’ (NIE) is a fiscal identification number. Anyone who owns assets in Spain requires one, and you will need one if you are to accept an inheritance. Giambrone's Spanish lawyers have a streamlined process in place to enable you to obtain a NIE swiftly, usually without visiting Spain.
Step 4: Searching the Central Wills Registry
In Spain, most wills are lodged with the Central Wills Registry in Madrid. It is a requirement to make a search of the registry to ascertain the existence or absence of a Spanish will. If evidence exists of a will but you are unable to locate a copy, you will be able to obtain a copy from the Notary’s office where the will was registered initially.
Step 5: Legal Certification and Official Translations
If there are any documents that are required as evidence of entitlement to your inheritance, and they are in English, such as Grants of Probate, death certificates, birth certificates, marriage certificates, etc., then these will usually need to be legalised by the Foreign and Commonwealth Office so that they can be used as legal admission in Spain. In some cases they will also need to be translated and certified by an official translator.
Step 6: Execution of Inheritance Deed
Spanish inheritance tax must be paid within six months of the date of death to avoid interest and penalties. The tax cannot be paid until the notarial process is completed, nor can any property be registered in the name of the beneficiary, so it is essential that the official deed of declaration of inheritance is signed by the Notary without delay.
Step 7: Tax Payment
Once the Inheritance Deed is signed, it is time to pay the taxes due. You should already have been provided with a list of cost and taxes due, so that you are prepared to make the required payments.
Step 8: Dealing with the Bank
It is well known for this stage of the Spanish probate process to be fairly lengthy. The takeover of a bank account is dealt with by the bank’s central legal department, and communication can be slow. The Spanish lawyers in our Barcelona office have established contacts within the banking sector which helps to move the process along more swiftly.
Step 9: Registry Applications
Once the Spanish inheritance tax has been paid, you are free to apply to the land registry and / or vehicle registry to transfer the title of any assets into your name.
How long does the Spanish probate process take?
There can be no set answer to this question, as it very much depends on the contents of the will if there is one. If there is no will the process will take longer. If the will was made outside of Spain then further delays will ensue, and the entire process depends on the succession law applied.
What are the costs involved in Spanish probate?
It is important to be prepared for the costs involved in Spanish probate, including the inheritance tax payable, so that you are ready to make the payments when required and so that the process is not delayed, the following fees will need to be paid:
- Notary fees in the UK and in Spain;
- a power of attorney if required;
- translation costs;
- obtaining certificates, for example from the Central Registry of Wills;
- NIE application;
- property registry fees;
- inheritance tax filing fees;
- Spanish inheritance tax; ‘Plusvalia’ – a municipal tax levied by the local Town Hall on the increase in the value of urban land on change of ownership;
- legal fees;
- courier charges;
- bank transfer fees and disbursements.
With regard to legal fees, Giambrone provides an all-inclusive package and incorporates an itemised list of all of the above with costs and fees clearly set, any additional costs will be fully explained.
Will I have to pay taxes, and how much will they be?
Aside from the taxes and costs mentioned above, Spanish inheritance tax, or ‘Impuesto sobre Sucesiones y Donaciones’ (ISD), must be paid by the beneficiary of any inherited assets that were located in Spain.
The rates of tax are linked with the value of the inherited assets; the relationship between the deceased and the beneficiary and the region in which the assets are situated.
A more in-depth explanation of ISD, the applicable rates, regional allowances and how to minimise it is available in our dedicated Spanish inheritance tax guide.
What happens if there was no will?
If someone has died without leaving a will, either in Spain or in the UK, then the intestate rules of the country of the deceased’s domicile or residency will apply.
If assets are left in Spain, then the beneficiary will be required to obtain a ‘declaration of heirs’ if the heir is the spouse of the deceased, or a descendant or ascendant, in which case this can be obtained from a Notary. If the heir is another relative or not a relative at all, then a court order will be required.
Do I need to use two different solicitors to deal with the UK and Spanish assets?
It is unusual for a UK wills solicitor to be competent in Spanish probate law, unless they are specifically experienced in cross-border probate. The best option is to engage a law firm with expertise in cross-border issues and has an office in Spain, this will remove the need to instruct two different law firms.
Do I have to be in Spain to deal with the Spanish probate process?
There is no need for you to be present in Spain in order to deal with the Spanish probate procedures as you can appoint a third party to act for you by way of a power of attorney. This will usually be a role undertaken by your Spanish probate lawyer. The power of attorney can be arranged before a Notary in the UK.
Glossary of Spanish Probate Terms
The following are some of the most commonly referred to terms when dealing with Spanish probate, and their corresponding meanings:
Residence: A Spanish resident is defined as an individual who spends more than 183 days per calendar year in Spain; who intends to reside there; who has his centre of vital interests based there or unless otherwise proven, his spouse lives in Spain and he is not legally separated.
Domicile: You are generally domiciled in the country that is your permanent home, and therefore you can only ever have one domicile. This is a legal status that has an effect on taxes.
Nationality: This is usually defined by the country in which an individual was born, although nationality can be changed. A passport will usually stipulate the nationality of its holder, but it is possible to have dual nationality.
Principle of unity of succession: This means that an estate is probated in the location that the deceased was last domiciled, and that country’s laws will apply to the entire estate. So if an estate is dealt with in the UK, there is no need for intervention on the part of the Spanish authorities, even if there are assets in Spain.
Matrimonial regime: Unless otherwise agreed, shared matrimonial assets will be deemed ‘assets in common’, which means that all property and rights acquired are jointly owned. There is also a ‘separation of assets’ regime which provides that each spouse owns the property acquired before they were married as well as any property acquired during the course of the marriage.
Plusvalia: A municipal tax levied by Spanish town halls on the increase in value of urban land when a change of ownership occurs. The rate varies depending on the local population size as well as the length of ownership and it will be payable on transfer of title.
Giambrone Law has offices in Spain and in the UK, and offers exceptional experience in cross-border probate, regularly acting for beneficiaries in both countries and in doing so saving on both time and costs. If you would like to talk to us about assisting you with administering an estate in Spain and have questions on Spanish probate to be answered, you are very welcome to get in touch.