What is the Spanish Probate process?
A loved one has died or you have inherited assets in Spain? What do you do?
We are able to deal with Inheritance and Probate in Spain. It is a fact of life that the day will arrive when you will have to deal with a probate. Probates are always complicated, whether in Spain or your own country, however in Spain the language barrier can cause a big problem. We can guide you through this process… more information follows.
For a Probate the following is needed:
The Death Certificate. The most important document. This can be applied for from the Civil Registry of the deceased’s place of residence. With a copy of the death certificate the solicitor will apply to The Last Wills Registry in Madrid, for a certificate stating if the deceased held a will in Spain at the time of death and in which Notary it is held.
A list of all assets (property, business, cars, boats, etc.) and the relevant documents to prove their existence and value.
Bank certificates for all bank accounts stating the funds held in the accounts at the time of death.
Documents for any debts (Mortgages, personal loans, etc.)
Any life insurance policies
Any bills for care during illness and the funeral costs in Spain can be deducted from the inheritance.
To ensure that you have all the correct documents, check with the lawyer. All heirs must have an N.I.E number and must come to Spain to accept the inheritance, this is done before a Notary Public. The Notary charges for the Adjudication and Acceptance of Inheritance Deed. Or they can provide the solicitor with a Power of Attorney.
Inheritance Tax on the Spanish assets must be paid within six months of the date of death. There are cases whereby the heirs have waited for four years for the payment period to expire, meaning that they paid no inheritance tax. This practice is at best risky. The payment period in fact expires at 4 years and six months. After the initial six months the surcharges are applicable starting at 5% and working its way up to 100%, which means that should the tax authorities claim the tax you may be liable for double the initial amount.
Inheritance Tax:
In the Valencian Community, there are sizeable deductions for close relatives currently. With certain documents proving the value of the assets the solicitor will calculate the amount of inheritance tax due. A breakdown of costs including inheritance tax, Notary fees, solicitor fees, costs such as a NIE or Power of Attorney, and for obtaining the last Will are provided to the heir. Unfortunately these costs need paying before the inheritance becomes officially theirs.
It is normal procedure for the beneficiaries of the Spanish estate to provide to whoever is acting on their behalf in Spain a translated, notarised and apostilled Power of Attorney so they can accept the Deed of Declaration of Heirs on the beneficiary’s/ies behalf.
The concept of having the Executors deal with the Estate is not common in Spain the beneficiaries rather than the Executors execute the relevant Power of Attorney.
Prior to the Inheritance Title Deed being signed, a Spanish Notary will need to be satisfied as to the following:-
a. The entitlement of the beneficiary or his representative to sign the document – hence the need for a Power of Attorney.
b. That the deceased has indeed died – proven by the translated Death Certificate and Grant of Probate, Letter of Administration or the equivalent.
c. The entitlement of the beneficiary to the property – proven by the translation of the foreign Will.
d. Any relevant succession taxes have been paid.
In the case of property; once the Inheritance Title Deed has been signed then it will need to be registered at the Land Registry. The registration should be completed before any attempt is made to sell the property.
When dealing with Spanish property the following further points should be borne in mind:-
1. There is no concept of joint tenancy in Spanish law. Therefore, if a husband and wife each own the property they are deemed to own a divisible one half share and upon the death of one of them then, if the survivor is the beneficiary, a Inheritance Title Deed needs to be executed transferring that one half share to the other spouse.
2. Certain time limits exist with regard to payment of inheritance tax due and penalties are imposed if payment is not made on time.
3. Although under Spanish law enforced heirship provisions exist these are not normally applied to foreign nationals who are neither domiciled or normally resident in Spain.
32 Comments
Lisa
Mum died having made a will in Spain signed and legally notarised. But now the notary office is telling my SPANISH solicitor that it’s not legal and renders the property interstate because mum was Italian not English and the will states that it all goes to me whereas the Spanish solicitor tells me that because mum was Italian , regardless of her wishes, the property must go to my brother whom she excluded from the will other than leaving him a gold cross!
Is my solicitor bluffing? Is this a scam to hoodwink me out of money or property- she knew at the onset mum had an Italian passport and I’ve given power of attorney to the Spanish solicitor and am very worried as I believed that notaries checked legalities ahead of signing and they met mum and I together to sign her will in 2013 and they took copies of our passports and signatures in their own office face to face and our solicitor was present.
Does this sound unlikely to you?