In our previous post we started to study the inheritance process when are Spanish properties involved. In this second post, we will see how to deal with it when there is a Will and what steps have to be done in Spain.
Dealing with an English-Welsh Will
If the deceased has an English/Welsh Will and there isn’t a Spanish Will, the English and Welsh Will will apply to Spanish assets too.
The English/Welsh Last Will not only explains who the heirs are, but also names the executors. The executors of the Will are the only authorised to apply for the “Grant of Probate”. The proceeding is the same as the one already explained for “Letter of Administration” document. Some tax form must be fulfilled and paid too.
From 4-6 weeks after sending the application, you will receive the Grant of Probate from the Court. To deal with the Spanish properties, you will need to legalise the document and, probably, to obtain a Certificate of Law from an English Notary Public explaining how English law works.
Spanish Last Will: what to do
If you have a copy of this Spanish Will, you are able to jump to the next step directly. If you don’t have it; you can ask in the “Registro de Últimas Voluntades”. There, you will receive a legal document called “Últimas Voluntades” including where and when the Last Will was signed.
What happens if there are two Wills?
Normally, the latest Will revokes the older ones. However, British citizens are able to have different Wills if they have assets or properties in different countries. But each Last Will has to stipulate if the effects of the documents are limited to United Kingdom or not. If nothing is said, the Last Will will revoke any other Last Will, doesn’t mind if they are foreign last Will and Testaments.
Next step: what to do once you have all the documents
If we are going to deal with an inheritance in Spain, the signature in a Notary public is required. This kind of deed is called “aceptación de herencia” (acceptance of inheritance). All heirs and executors/administrator (remember: executor and administrator is the same role. It is called executor if he/she was named in the Last Will and administrator if he/she was named directly by the Court) have to be there to sign the deed. However, a Spanish lawyer can sign on their behalf with a Power of Attorney.
They Notary Public will ask for the following documents:
And, how much I have to pay?
Costs changes a lot to one inheritance to another. The value of the estate, as well as the region where they are (each Spanish region has its own tax rate) affects the costs. Here you can see a list of the costs you have to deal with:
Is everything done? Really?
After the signature of the deed, the heirs and executors/administrators don’t have to do anything more. The Notary Public and the gestoria will deal with all the administrative stuff as changing the owners name in Land Registry (if there is a property in the estate), dealing with water or electricity companies, dealing with taxes…
After few weeks, the properties as well as the rest of the assets will be changed in name of the new owners (the heirs) and the process will be finished.
As a Lawyers, we have a large experience dealing with inheritances in Spain for British citizens. Do no hesitate to contact us if you have any question!
Written by Ana Escauriaza
More and more British citizens have holiday properties in Spain. Some of them, move to Spain for their retirement. So, when they die, their relatives don’t have to deal with the inheritance just in UK, but also in Spain.
Spain and United Kingdom have very different inheritance laws, so, where, when and how to deal with an inheritance of a British citizen who had properties in Spain?
To answer this question, first of all, we have to contradistinguish four different situations:
In this first post, we will study why where the person passed away is so important and we will see what happens in the first two scenarios (dying without a Last Will and Testament).
Why is it important where the person died?
The place where the person died, specially if there isn’t a Last Will, will decide the applicable law. Regulation (EU) No 650/2012 of the European Parliament regulates the inheritance inside European Union. This Regulation applies in all European Union countries except Denmark and Ireland.
For Regulation 650/2012 there are two possible applicable law: the law of the deceased nationality or the law of the residence. Which one applies?
If the deceased has passed away without a Last Will and Testament, the domicile law will apply. It doesn’t matter which nationality the deceased had.
If the deceased died with a Last Will and Testament, the Regulation gives him/her two option: the testator or testatrix is able to choose between his or her national law or the law of the residence. If nothing is said in the Last Will, the residence law applies.
Under English law, the law of succession is the law of deceased domicile. Domicile, under English law, has a specific and legal meaning.
In general lines, a British citizen acquires his or her domicile from his parents and retains it unless some specific decisions are taken. In this second case, we are talking about “domicile of choice”. Acquisition a new domicile requires two elements:
First scenario: passed away in UK without a Last Will and Testament
As we have already explained, in this case, the UK law applies. Under English-Welsh law (Scotland has its own law for inheritance) the husband, wife or civil partner keeps all the assets (including property), up to £250,000, and all the personal possessions, whatever their value.
The remainder of the estate will be shared as follows:
The heirs or any person interested in the inheritance (p.e. a person who is representing the heirs) has the right to apply for a “Letter of Administration”. A Letter of Administration is a legal document, issued by a Court, who allows to the administrator to deal with the estate of the deceased.
The person who will be in charge of the deceased assets is called administrator. Any of the possible heirs, or any person interested in the inheritance, can apply as a future administrator.
The “Letter of Administration” form has to be sent, with a tax form, to the Court. Within 4-6 weeks, the applicant will receive a letter from the Court allowing him or her to be the administrator of the estate.
Second scenario: passed away in Spain without a Last Will and Testament
As we have seen, if the deceased passed away in Spain and there isn’t a Last Will and Testament, the domicile law applies. In this case, if the person was living in Spain for, at least, 5 years, Spanish law will apply.
First step, under Spanish law, if the deceased was married under “Sociedad de gananciales” option, is split the assets of the marriage. Each spouse will receive a part of the common assets.
Parallel, the heirs has to apply for “Últimas Voluntades” document. Últimas Voluntades is a legal document, issued by the Registro de Últimas Voluntades (part of Justice Ministry) where it is said if the deceased has or not Last Will and Testament.
As we don’t have a Last Will and testament, the help of a Notary Public is required. The heirs, as well as two witnesses, has to go to one of the Notary Public closest to the place of death and ask for a “declaración de herederos” (declaration of heirs). In this deed, the Notary Public will explain who the heirs under Spanish law are:
Dying with a Last Will and Testament and next steps
We know we have given you a lot of information. Please, keep calm! We are going to take a rest now and we will go on in our next post. Next week we will see what to do if we have an English-Welsh or Spanish Will and what are the next steps.
However, if you are dealing with an inheritance with assets in Spain, you have any doubts or you just can’t wait until next week, do no hesitate to contact us!
Written by Ana Escauriaza
Dealing with legal problems is not an easy way. Specially if these legal issues are between two countries with very different legal systems as Spain and United Kingdom. However, this kind of problems are more and more often nowadays, as we are living in an international and connected environment.
Nowadays, borders are just a name. People travel to one country to another diary. Some citizens from United Kingdom, Germany or Russia spend their holidays and buy properties in sunny countries as Spain or Italy. Some of our young professionals are living and working abroad… We are living in a non-border and connected world and, nowadays, legal problems are not based in just one country.
Notwithstanding, each country has still its own legal system, with its own laws, courts and rules. People must deal with some different legal systems and, fit the puzzle pieces is not always easy.
As a Spanish Lawyers, we are based in Marbella (Spain) and Liverpool (United Kingdom) and we have a large experience dealing with legal problems in Spain for British citizens. We are specialized in purchases, inheritances and off plan reclaims cases. As the principal of the firm, Mr. Sánchez, is also the Honorary Consul of Spain, we have a huge experience in nationality, residency, minors… issues.
With this blog, we would like to share part of this knowledge we have been acquiring during more than 10 years. We would like to explain in the easiest way possible the most difficult issues we have to deal with daily. We would like to discuss, as well, how to face them in the future. And we would like to hear your opinion and, if it is possible, help you.
Thank you for being here and we hope to see you again in our next posts!
Written by Ana Escauriaza