What is the Spanish Probate process?


Posted and filed under Legal Issues in Spain.


A loved one has died or you have inherited assets in Spain? What is the Spanish Probate process?

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.

What is the Spanish Probate process – 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. This is 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

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.

Calculation of Inheritance Tax

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.

Power of Attorney

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. This is 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.

Spanish Notary and the the Spanish Probate process

Prior to the Inheritance Title Deed being signed, a Spanish Notary will need to be satisfied as to the following:-

  1. The entitlement of the beneficiary or his representative to sign the document – hence the need for a Power of Attorney.
  2. That the deceased has indeed died – proven by the translated Death Certificate and Grant of Probate, Letter of Administration or the equivalent.
  3. The entitlement of the beneficiary to the property – proven by the translation of the foreign Will.
  4. Any relevant succession taxes have been paid.

In the case of real 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.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.

Please contact us if we can help you with a probate in Spain.

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