When English people die leaving assets in Spain, Grants of Probate and Administration are not issued by the Courts in Spain. Thus, in order to proceed with the registration of the assets inherited in Spain, the beneficiary or the surviving spouse needs to provide the Spanish Authorities with the compulsory document “Deed of Acceptance of the Inheritance”; unfortunately it is not like in England that the properties pass automatically to the surviving spouse.
Due to the requirements of Spanish Data Protection Law, banks will not normally reveal information of a deceased’s affairs until such time as a properly executed Power of Attorney from the beneficiary or executors is produced. Inheritance tax is payable by the beneficiary rather than the estate itself and its calculation is dependant on the amount received and the blood relationship between the beneficiary and the deceased.
Deed of Declaration of Inheritance and the Acceptance of the Inheritance
There is no equivalent of this concept in England and Wales. It is a formal declaration of the deceased’s death and disclosures of their estate, to be prepared and signed by the beneficiaries and the appointed executors. The Deed states the capacity in which parties are acting, such as beneficiaries, executors or attorneys for the beneficiaries or executors, it recites the facts relating to the deceased’s death and their succession through the testamentary dispositions made by them and in addition, it will contain a full inventory of the assets which form the estate, disclosing the value for inheritance tax purpose. In the case of immovability property, the deed will contain a full description of the property as it appears in the title documents, and will incorporate full details of its registration. The liabilities of the estate for which a tax deduction is claimed have to be equally detailed in this deed.
The distribution of the deceased’s estate among the beneficiaries is detailed at the end of the document, in accordance with the terms of the will. The beneficiaries may formally accept the inheritance and, in the case of immovable property, will apply to the Land Registry for the registration of the property in their name or names.
Beneficiaries cannot register property under their name unless the deed of declaration of inheritance has been signed by a notary public.
Power of Attorney for Inheritance
This is a notarial deed granted in favour of a lawyer or any other third party to act on behalf of the beneficiary or executor at the signing of the deed of Declaration of Inheritance, or to generally deal with the winding up of the estate.
Central Will Registry
Every will has a certification number in Spain, which is kept on file at the Central Register of Spanish Wills, located in Madrid. There is no equivalent in England and Wales. A certificate from the aforesaid registry must be attached to the Deed of Declaration of Inheritance and the Acceptance of the Inheritance confirming whether the deceased made Spanish Will or not.
Registry of Deaths
The Spanish equivalent is the Registro Civil which fulfils the same objective as the General Register Office in England and Wales. The original death certificate legalised with the Apostille of the Hague Convention 1961 and duly translated into Spanish must be attached to the Deed of Declaration of Inheritance and the Acceptance of the Inheritance.
Revocation of the Will
A will is automatically revoked by the execution of a new will. Divorce does not automatically revoke or affect the validity of a previous will. However, the divorced spouse will not inherit unless the will stipulates otherwise.
Same sex couples’ rights and responsibilities are identical to civil marriages in Spain and are fully recognised under the same name as heterosexual couples that is, marriage. Such partnerships give the same succession rights as heterosexual marriages. Some regions have also regulated cohabiting couples as simulating the succession rights to those of matrimony.
There is no equivalent in Spain. All issues referring to metal capacity are decided by the ordinary court of first instance.
Tenancy in Common
All co-ownership under Spanish Law is held under tenancy in common, so the deceased’s share of the co-owned property will be part of their estate and will pass in accordance with the terms of their will or intestacy.
Unity of Succession
According to Spanish law, inheritance issues are governed by the deceased’s national law at the moment of death, no matter what type of assets are involved nor in which country they are located.
Art 9-8 of the Civil Code
This means, for example, that provision for the compulsory portions, which are applicable to Spanish Citizens, are not applicable to foreigners, even if they are residents in Spain or their estate is in Spain or they have died in Spain. The right of a person to deal with these assets after his death is regulated by his national law.
This has been adopted as a fundamental principle within the Spanish Legal systems, so the Supreme Court has clearly established that only one law will be applicable to real and immoveable property of the estate of an English National.
Should you have any queries please do not hesitate to contact Susana Diez Urquiola, our Spanish Lawyer at B Legal Limited on firstname.lastname@example.org or 01494 687837 for a free initial consultation. Susana has been working in the UK for the past 20 years and is registered with the Law Society as a European Solicitor and is also a member of the Bilbao Bar.