Understand the process for taking out probate in Spain when the deceased's nationality is from the UK, Ireland or another country.
Taking out probate in Spain tends to be more straightforward than in some other countries – however, this is only the case when you have all of the documentation in place.
The Spanish probate process is set-out below, and as you will see, it is predicated on having taking anticipatory steps to ensure all documentation is in place. Needless to say, this does not apply to everyone. In any case, we detail below the probate process and this starts with having created a legally valid Will in Spain:
Wills Drawn-up in Spain
The most straightforward situation is where the testator has drawn-up a will in Spain and in accordance with the legal provisions for creating a valid will.
How to Create and Register a Will in Spain
Making a will in Spain to cover your Spanish assets is a sensible action that will save time, money and stress for your heirs. The procedure is as follows:
- Contact an English-speaking lawyer with experience in matters of probate.
- The solicitor will draft a will that covers your assets in Spain and will distribute those assets according to your wishes and the law of your nationality.
- Note carefully, it is important to highlight the fact that this will applies to your Spanish assets and not any other assets you may have elsewhere – if that is your intention.
- The will is taken to a notary to have it formally drawn-up in a public document. The notary will hand over a copy of the will and retain the original for storage.
- The notary informs the Central Registry for Wills in Madrid of the existence of the will.
- When the time comes, your beneficiaries can obtain a certificate from the central registry that will certify that the will (of which they will have the copy the notary handed over) is in fact your final will and testament.
Creating a Spanish will greatly simplify matters though there still remains a series of actions that need to be carried out in order to have an estate’s assets distributed correctly.
It is not advisable to try to do so without the assistance of a qualified expert in inheritance matters in Spain.
The first thing that needs to be carried-out is to obtain the Death Certificate (Certificado de Defunción ). If death occurred in Spain then this can be obtained from the Civil Registry (Registro Civil) where the death occurred. The address of the local Registro Civil can be found by going to: Registro Civil.
If the testator died outside Spain then a death certificate must be obtained from the relevant authority in that state. For example, if the testator died in England or Wales, information on obtaining a death certificate can be requested by clicking on the following links:
Please note that if the Death Certificate is not written in Spanish then it must be translated and legalised i.e have the Apostille stamp attached. It can then be used as an equivalent to the Spanish ‘Certificado de Defunción’.
With the Certificado de Defunción or legalised Death Certificate arranged then the next step is to request the Certificado de Registro General de Actos de Última Voluntad (RGAUV). The RGAUV certificate is issued by the central office for wills and testaments in Madrid and verifies the existence or otherwise of a Spanish will.
It will be necessary to wait for a period of 15 days from the date when death occurred before ordering the certificate. If ordering the certificate then there is an administrative charge that requires completing form 790. It will be necessary to send an original (not a copy) of the death certificate and it normally takes around 10 days to receive the certificate.
It may also be convenient at this stage to acquire any Life Insurance Contract that may exist. If the life insurance contract was taken out in Spain then it will be registered in the same place as the RGAUV certificate.
If however, as is more likely, the life insurance was taken out in a country of origin such as the UK or Ireland then the insurance company will have their own process.
This will typically involve sending an original (not a copy) of the death certificate and completing whatever form the insurance company uses.
Certified Copy of the Will
Having the first two certificates on the list allows us to get a Certified copy of the will from the notary in which the will was signed. This must be an authorised copy and not the simple copy that a testator would typically take away after signing the will at the notary’s office.
The RGAUV certificate will identify the most recent and therefore legitimate will as well as the notary office in which the will was signed. It is in this notary office that the will is kept and where an authorised copy can be obtained by presenting the Death Certificate and RGAUV certificate.
The cost is determined by the age and the number of pages in the will. The persons who are permitted to request this copy are those named in the will as beneficiaries or as executors of the will.
Property & Other Assets
An inventory should be carried-out to determine the final assets of the deceased. To identify property owned by the deceased is relatively simple where the property is registered on the local Property Registry and involves requesting a ‘nota simple’ which will detail the deceased as the current owner. This can now be done online by going to: Nota Simple.
Should the deceased have had bank accounts or share-holdings then it is necessary to request a certificate of the value of these on the date of death of the deceased by presenting the death and RGAUV certificates.
Please note that once these certificates have been obtained no money may be withdrawn from the account as it will be frozen until it has been legally transferred to the beneficiary.
Debts & Rejecting an Inheritance
Should the deceased have accumulated debts then these become the responsibility of the beneficiaries. This liability extends to the personal assets of the beneficiary should the proceeds of the inheritance not be sufficient to cover them.
So, this can be a very important aspect of inheritance to consider if inheriting a property that is in significant negative-equity. The benefit of inheriting will need to be balanced against the liabilities to decide whether it is worth accepting an inheritance.
Such acceptance can be tacit and so it is advisable to formally reject the inheritance via your lawyer.
Assets & Liabilities
On the basis of the inventory previously carried-out, a ‘manifestación de herencia’ is drawn-up which is a list of the assets and their valuations as well as any debts and obligations.
A ‘cuaderno particional’ is then drafted which, following the provisions of the will, stipulates how the assets are to be distributed and any debts satisfied.
In certain cases this document may be drawn-up privately, for example where there is only one sole heir or where the asset to be inherited is a property which is not to be divided for the time being. Otherwise, the document must be drawn-up publicly in the presence of a notary.
Once the ‘cuaderno particional’ has been drawn-up then it is necessary to pay any taxes due under the inheritance.
In Spain the liability for inheritance tax depends on the existing wealth of the beneficiary and the proximity of their relationship with the deceased. There are major differences with UK and Irish tax laws and, for example, there is no automatic exemption for spouses.
A major factor determining the tax payable is whether the beneficiaries are resident in the province as this can almost eliminate the tax payable. More information is available on: Spanish Regional Inheritance Tax Rates.
Distribution of the Assets
With the matter of taxes out of the way it is then possible to transfer the assets into the name of the beneficiaries.The exact requirement here depends upon the nature of the asset.
For example, a property should be registered in the name of the beneficiary in the local Property Registry (typically near or may also be located in the town-hall or Ayuntamiento).
A car should be registered at the nearest department of ‘Traffico’.
Both of these processes will require all of the standard documentation: in the case of the car – details of the car such as the log book, mot certificate, as well as the ‘cuaderno particional’, original (not a copy)death certificate etc; in the case of the property you will need to bring the deeds of the property as well as the death certificate and the ‘cuaderno particional’.
In both instances you will require original and copies of your DNI or passport.
Please note that following a judgment by the European Court, the Spanish government has passed into law Ley 26/2014, which came into force on January 1st, 2015. The new legislation provides that European Union citizens, ordinarily resident in another European country, may apply any deductions available to residents of the region in Spain in which their assets are located.