Spanish law when someone dies

Spanish law when someone dies essentially deals with the rules for managing their estate and is much simpler if all documentation is in place

Introduction

It is said that approximately two-thirds of people in the UK die without making a will. It is an unfortunate fact that many with assets in Spain fail to make a valid will either in Spain or in their country of origin.

This can leave their families having to try to manage at a distance a complex legal matter – Spanish law when someone dies – which of course can be quite overwhelming. Below we set-out some information as a guideline to anyone in that situation.

Similar to most countries, there are effectively 3 possible options when dealing with the assets of a deceased’s estate in Spain. We consider these below as well as providing some practical information on payment of Spanish inheritance tax.

 

Spanish Will

This scenario is dealt with at length in this post: Probate in Spain

Foreign Will

It is often the case that foreign nationals do not draw-up a Spanish will to deal with their Spanish assets meaning that any Will created in their home country must be used.

The process for dealing with an inheritance under a foreign will is the same as that for a Spanish will with the only addition being that all of the relevant documents need to be legalised and officially translated so that the Spanish notary can draw-up the necessary Spanish documentation allowing for assets to be distributed to the heirs. Unfortunately this will add considerably to the expense and in addition can delay the process substantially.

In order for a foreign will, for example an English will, to be valid and given effect to in Spain, it needs to be verified as being:

  • A valid will with regard to inheritance laws in England & Wales
  • That the testator was of sound mind
  • Any executor or trustees named in the will are empowered to administer the estate

A will in the UK will typically name one or more executors to handle testamentary matters when the testator dies. The executor should request a ‘Grant of Probate’ which is an official document issued by the probate registry that certifies the executor as having the right to deal with the assets of the testator.

This may be done personally or a solicitor can make the application for a fee.

Once the Grant of Probate has been issued by the probate registry, that document must be legalised by having the Hague Apostille stamp attached by a Notary Public whereupon it is ready to be translated into Spanish. This can be done by either sending it to an official translator in Spain or to the closest Spanish consulate.

Once the will has been legalised and translated it is simply a matter of following the standard process for an inheritance under a Spanish will.

No Will – Intestacy

For anyone not domiciled in Spain, then the laws of succession of the country where they are nationals shall be applied. If a valid will has not been written that means that the rules of intestacy of that country shall apply.

Below is a brief summary of some of the more important rules of intestacy in the UK, Ireland and Spain.

Rules of Intestacy – England & Wales

Married couples or civil partners can inherit under the rules of intestacy in England and Wales. So if a couple has divorced, the ex-spouse will not inherit although informal separations do not prohibit from inheriting.

Where an estate is valued at more than £250,000, and the deceased has left no valid will evidencing how the assets should be distributed, any spouse or civil partner inherits:

  • All the personal property and belongings of the person who has died, and
  • The first £250,000 of the estate, and
  • A life interest in half of the remaining estate (the spouse or partner can benefit from that half but not sell or spend it).

A distinction should be made where any property or bank accounts were owned ‘jointly’ by the couple as in those cases the assets belonging to the deceased would automatically pass to the surviving spouse.

The couple’s children will inherit one-half of an estate over £250,000. If there is more than one child that half is shared equally.

Rules of Intestacy – Scotland

The rules of intestacy in Scotland are rather different to those in England & Wales and are found in the Succession (Scotland) Act 1964 as amended.

Firstly, any debts owed by the deceased must be dealt with. The surviving spouse is the primary beneficiary under Scottish intestacy rules.

In Scotland the surviving spouse is entitled to what is known as ‘prior’ which means a right to any:

    • House (up to a value of £300,000)
      • Furniture (up to a value of £24,000)
    • Cash (up to a value of £42,000 if children, or £75,000 if no children)

‘Moveable and ‘Heritable’ Estates

After this it should be noted that Scottish rules of intestacy distinguish between a ‘moveable’ and a ‘heritable’ estate. The former relates to cash, jewelry, car, shares etc. The latter relates to property and land.

Once the prior rights have been distributed to the surviving spouse, the moveable estate is distributed as follows:

  • One-third to the surviving spouse or one-half if no children,
  • One-third to the children or one-half if no surviving spouse,
  • One-third to the free estate

The ‘free’ estate refers to that which is left after debts, prior rights and legal rights. The free estate should be distributed equally among the children or if no children then jointly to brothers and sisters and parents followed by brothers and sisters solely then parents solely…and so on down the line of succession until the Crown.

Should a husband and wife or civil partners die together in circumstances where it is not possible to determine who predeceased who, then for the purposes of intestacy in Scotland both are said to have predeceased the other when considering the rights of beneficiaries to their mutual estates. As a result each is ignored when considering the legitimate heirs to each others’ estate.

Should there have been a judicial separation then the husband is barred from inheriting the wife’s estate but the reverse does not hold and a wife would not be so barred. Divorced partners do not benefit from each others estate.

It is important to note that under Scottish inheritance law, a testator does not have 100% freedom of disposition of personal assets and a beneficiary may choose to inherit under the laws of succession or under the will (if named as a beneficiary). However, the beneficiary must renounce one or the other.

Rules of Intestacy – Northern Ireland

The rules of intestacy in Northern Ireland may be summarised as follows –

If there are no children (or other relatives):

  • The surviving spouse or registered civil partner inherits all of the estate

If there are children:

    • The surviving spouse or registered civil partner inherits personal assets such as car, jewelry, art collection, household goods
    • Equity in the estate (inc. property etc) up to £250,000
  • A life interest in one-half of any remainder if one child or one-third if more than one child

If there are no children/grandchildren but parents alive:

  • The surviving spouse inherits personal assets, the estate up to a value of £450,000 and one-half of the remainder (not a life interest)
  • Parents inherit the remaining half
  • If parents no longer alive then brothers and sisters share the remaining half equally

In Northern Ireland as in other jurisdictions in the UK, a divorced spouse receives no interest in the estate but a merely separated spouse would.

Rules of Intestacy – Republic of Ireland

In the Republic of Ireland it should be understood that whether or not a will has been created there are minimum guarantees for surviving spouses that ensure that they will inherit a minimum portion of the estate.

So even where a will has been made, the following applies:

  • Where there are no children of the marriage a spouse is entitled to one-half of the estate
  • Where there are children a spouse is entitled to a minimum of one-third of the estate
  • If there is a surviving spouse, no children but  there are surviving grandchildren then the spouse is entitled to one-half of the estate

In general, where there is no valid will, the following rules of intestacy apply:

    • Where there are no children, the spouse inherits the entire estate
  • Where there are children and a surviving spouse, the spouse inherits two-thirds of the estate

Rules of Intestacy – Spain

Spanish succession law operates a system of ‘forced heirs’ and only a minor portion of any estate may be freely distributed by the testator.

Should a person die intestate in Spain and the Spanish rules of intestacy apply then the first matter than needs to be defined is the size of the estate. If the deceased was married and the marriage was classified as a ‘sociedad de gananciales’ (the most typical in Spain) then under Spanish law, assets obtained during the life-time of a marriage are shared.

Accordingly, the deceased spouse may transmit only one-half of those assets upon death.

Other assets accumulated outside of the marriage – for example before the marriage or a personal inheritance from a parent – are added to this one-half to form the inheritance.

Rules for the Distribution of Assets 

Spanish law stipulates that in the absence of a valid will assets should be distributed as follows:

  • Equally to any children of the marriage (or if any child has predeceased the parent then to their children per stirpes),
  • If no children, equally to surviving parents,
  • If no surviving parents then to the closest of other surviving ascendants (uncles, aunts, grandparents),
    • In the absence of surviving ascendants, to the surviving spouse,
  • If no surviving spouse then to brothers and sisters

The outcome described above may be completely at odds with the preferred outcome and so it is important to make a will that covers Spanish assets to prevent this occurring.

Payment of Inheritance Taxes

A time-limit is established for the payment of inheritance taxes in Spain, being six-months from the date of death. An application may be made during the first five months to have the deadline extended by a further 6 months. Once granted the extended period of six months begins when the first six months has ended.

Interest will be charged at an annual rate of 5% until the date the tax is paid.

The process for applying for the extension may vary slightly in each region, however typically you will need to present original and copy of the following documents:

  • Death Certificate
  • Identification (Passports/NIE)
  • Brief inventory of assets and values
  • Reason for requesting the extension

Should the application be denied for any reason, the original deadline will be extended by the period of time between application for the extension and notification of the refusal.

Documentation Required

It is necessary to complete official form 650 or 652 (simple version) when paying inheritance taxes. These can normally be found in any office of Hacienda (Consejería de Economía, Hacienda y Empleo).

Along with the official form it is necessary to include all relevant information regarding the deceased, the beneficiaries and the assets that are the subject of the inheritance. So the following documents will be necessary depending on the assets to be distributed:

  • Form 650/652
  • Original and copy Passport Deceased
  • Original and copy passport Beneficiaries
  • List of assets with valuations
  • Original and copy of death certificate
  • Original and copy of RGAUV certificate
  • Original and copy of will
  • If no will, original and copy of ‘Declaración de Herederos’
  • List of costs of funeral and support through final illness of deceased
  • If Life Insurance then Certificate of Life Insurance
  • Original and copy of property IBI receipt
  • Original and copy of Vehicle documentation if any
  • Original and copy of Bank Certificate regarding bank accounts, shares etc
  • Original and copy of proof of relation with deceased (Birth Certificate)

33 Lawyers Offering Services in Spain

Testimonials for Probate Law
  • Gail Maher
    Gail Maher, Fuengirola

    Hi, I would like to thank Alvaro very much for all his expertise. We had a very long journey from dealing with the inheritance will for my mother's apartment in Torrenueva to dealing with sale of the apartment.


    He was brilliant in every aspect. Nothing too much trouble. Very professional and would definitely recommend him to anyone in the future.


    So a big thank you and wishing you to continue delivering an excellent service. Regards Gail Maher


    Oct 21, 2020
  • Johanna Count
    Johanna Count, Benidorm

    Consuelo explained and took care of everything. She is easy to get in touch with and a pleasure to deal with.


    Having to deal with Spanish probate laws and procedures was overwhelming but Consuelo made it so straight forward.


    Oct 07, 2020
  • David Stevens
    David Stevens, Seville

    Rafael has provided us with excellent service for us as we relocated to Spain. He guided us through the NIE application and subsequent switch to TIEs. He assisted us through the process of our house purchase and also helped us with our wills.

    We found his help invaluable. His approach was friendly and professional throughout. We would recommend him to anyone looking for English speaking legal services.


    Sep 21, 2020
  • Michael Armstrong
    Michael Armstrong, La Manga del Mar Menor

    Consuelo has the highest praise and gratitude from this family by somehow reclaiming inheritance tax from Madrid. Previous solicitors left a mess,partial/incorrect and missing documents were received very late.


    Despite obstacles such as denial from tax office and virus Consuelo promptly, courteously and professionally simply got on with the job and succeeded against all odds. We cannot thank her enough!


    Jul 27, 2020
  • Abbie Orsini
    Abbie Orsini, England

    Rosa responded efficiently I was extremely happy and satisfied with this !


    She explained everything I needed to know and more to help me understand. At the beginning I found the process daunting Rosa took this feeling way and helped me feel at ease.


    Paying was straight forward and I was well informed with fees etc. Rosa took a very professional approach and I felt comfortable approaching her about any issues I had.


    She is a credit to advocate abroad !!!!! Thank you for your help !!!!!!!!!❤️


    Jun 18, 2020
  • Jonathan Mackay
    Jonathan Mackay, Jaca

    Francisco was extremely professional and answered our many questions promptly and clearly, both by phone and email. We feel very lucky to have had Francisco handle our Spanish Fiscal declaration.


    The service was perfect, and we are very happy with the whole process.


    Mar 12, 2020
  • Gail Maher
    Gail Maher, Torrenueva

    Alvaro is brilliant.


    He comes across very professional and friendly,nothing too much trouble.


    As I was unable to go to Spain initially all communication was via phone and was put at ease straight away as he understood exactly what was required to deal with my case, and all went exceptionally well. I was able to meet Alvaro in August to pass over documents required and made me very welcome.


    I have been so pleased with everything I have now engaged him on a further instruction on our property in Torrenueva..


    Dec 11, 2019
  • Andrew Hales
    Andrew Hales, Fuengirola

    We dealt with Angela, and had a superb service - she was efficient, clear, timely and exceptionally helpful. We would recommend this respectable Solicitor who has excellent English.


    Trustworthiness is so important, and step by step help was very much appreciated. Thank you Angela of myAdvocate Fuengirola.


    Oct 23, 2019
  • Luis Gonzalez Lunden
    Luis Gonzalez Lunden, Canada

    Rosa responded very promptly to our inquiry, grasped our needs immediately, and provided an excellent solution which was delivered seamlessly. Rosa thoroughly explained the intricacies of the local legal system, providing options and considerations.


    Overall Rosa provided outstanding service through a professional and mindful approach to our needs. We really enjoyed our interaction and it is without hesitation that we recommend her to future prospective clients. Thank you Rosa!


    Sep 21, 2019
  • Isabel Albert
    Isabel Albert, Valencia

    Inmaculada has always responded to all my queries and explained and provided excellent solutions. She is very approachable, diligent and professional.


    Sep 17, 2019
  • Irene Hyde Christie
    Irene Hyde Christie, Coin

    I am very pleased with the service provided by Francisco. He has been most helpful and responded very quickly to all my emails.


    Jul 26, 2019
  • Franco Trio
    Franco Trio, United Kingdom

    Rosa always responded promptly to any email I sent.


    She kept me informed and provided alternatives and 3rd party services (translation).


    Thank you Rosa for your assistance, perseverance and honesty in helping my mum and I. We will definitely recommend you.


    Apr 10, 2019
  • Claire
    Claire, Valencia

    Ramon was very helpful and professional. He listened to our requests carefully and we will be using him again if we need anymore legal services.


    Mar 28, 2019
  • Colin Johnson
    Colin Johnson, Sevilla

    Very helpful, especially as English and Spanish law has it's differences and my final document - a testament -  required the services of a notary and the final translation.


    A pleasure to meet Rafael and to discuss my needs and he made the whole process straightforward with lots of common sense solutions. ***** 5 stars and highly recommended.


    Mar 15, 2019
  • Gary Moore
    Gary Moore, Gandia

    Fransisca is 1st class and very professional and extremely caring


    Mar 12, 2019
  • Gary Moore
    Gary Moore, Gandia

    Francisca is a first-class Professional ' puts u at ease.


    100% up to date and reliable.  I would not consider using anyone else.


    Feb 28, 2019
  • Marcus Bond
    Marcus Bond, Fuengirola

    Proactive, great communication, thoroughly recommend.


    Feb 14, 2019
  • Alison Hamilton
    Alison Hamilton, Fuengirola

    Kept us informed every step of the way, very efficient and very pro active.


    Absolutely excellent!


    Feb 12, 2019
  • Michael Bates
    Michael Bates, UK

    Francisco was very easy to deal with. Very professional. Would not hesitate to recommend him to friends.


    Jul 27, 2018
  • Patrick Crean
    Patrick Crean, Almerimar

    Juan was fantastic. Very easy to understand and very pleasant. I would definitely use his service again.


    Jul 05, 2018
  • Nigel Bateman (Fuengirola)
    Nigel Bateman (Fuengirola)

    Excellent service, very reasonable, fluent English and totally professional. I would not hesitate to recommend this highly skilled team.


    Apr 09, 2018
  • John Crompton
    John Crompton, UK

    Very satisfied with the service that Oliver provided.


    Oliver was professional, approachable and his fees were very reasonable.


    I will definitely use his services again!


    Nov 25, 2017
  • Sarah Finnagan
    Sarah Finnagan, England

    Francisco was fantastic and helped me through every single step and helping understanding everything.


    Price was very reasonable i have no complaints at all.


    Very easy to get hold of and very quick at responding would definitely go back to him - thankyou so much Francisco for everything.


    Sep 21, 2017
  • Michael Tenerife
    Michael Tenerife, UK

    Rosa excelled in all of the criteria listed for evaluation.


    Extremely responsive, understanding, professional, and offered great value for money. Rosa explained the situation clearly and provided the clearest solution every time.


    I just can't imagine how Rosa could have done more. Truly excellent service.


    Aug 07, 2017
  • Aziz Oudjida
    Aziz Oudjida, Mijas Flores

    We couldn't have hoped for better lawyer than Mr Francisco. He is always responsive, always available and approachable, with a remarkable ability to explain and provide legal solution. But more important, he strikes me as a very good and genuine person, honest and very competent.


    I can say without a doubt in my mind that Mr Francisco stand well above all these lawyers.


    Jun 02, 2017
  • LM
    LM, Ibiza

    Cristina was amazing and very helpful and i would highly recommend her services again.


    I am very satisfied and I definitely would use the same lawyer again in the future.


    Mar 10, 2017
  • Mrs. J.B.
    Mrs. J.B., Cordoba

    Welcoming manner and kind comments about the fact. Extremely approachable.


    Highly competent understanding of and patient explanations regarding my many questions.


    Very fairly priced to do with the making of a Will.


    Jan 12, 2017
  • Diana Rawstron
    Diana Rawstron, London

    Domingo provided an excellent service on this matter and I was very pleased that I had found him through your website.


    I definitely use the same lawyer again in the future.


    Nov 03, 2016
  • Mrs. Irene C Price
    Mrs. Irene C Price, Acton Trussell

    It was a pleasure to deal with Francisco. He spoke excellent English. He was professional and courteous at all times, and responded to any queries I had by return, taking time to explain complicated legal procedure in a manner I could understand.


    For the work Francisco did, his charges were good value for money. I would recommend his services without hesitation.


    Oct 12, 2016
  • JMH
    JMH, Mallorca

    I was able to talk things through and my lawyer was able to help me find solutions and alternatives to my problems without it costing a fortune but providing me with what I needed.


    Rosa was very approachable and professional.


    Oct 11, 2016
  • Caroline & Kevin
    Caroline & Kevin, UK

    Alvaro was approachable, reliable and his instructions were clear. He was easy to communicate with and we felt he had our best interests at heart.


    His English is excellent and he offered excellent value for money.


    Sep 02, 2016
  • Brian Eastwood
    Brian Eastwood, Ibiza

    Extremely professional and able to convey everything perfectly in English. The service provided was very efficient, quick and friendly.


    The rate quoted for the work was better than similar legal practices in Santa Eularia del Rio and Ibiza town.


    We have already recommended Cristina to several other people.


    Mar 07, 2016
  • Alan lewis
    Alan lewis, UK

    Our lawyer was friendly, took trouble to understand our problems and charged a reasonable fee. The whole process was easy and efficient.


    Nov 01, 2015
  • Brian Thomas
    Brian Thomas, Priego

    A very fast response to my inquiry, Francisco has excellent English and gave us a very friendly and professional service that we feel was value for money.


    We do recommend him to our friends.


    Oct 31, 2015
  • Peter H David
    Peter H David, Mallorca

    Rosa could not have been more helpful and professional in providing us with what we needed accomplishing in very short space of time.


    We will certainly be in touch with her again the next time we need legal service.


    Oct 30, 2015
  • Neil Coates
    Neil Coates, Mallorca

    Our lawyer listened attentively to what we wanted, was pleasant and efficient. There were no linguistic problems.


    Although I speak some Spanish, all our business was conducted in English.


    I was very satisfied with the service provided.


    Feb 13, 2015
  • Evelyn Lindsay
    Evelyn Lindsay, Aberdeen

    As I am elderly and do not speak Spanish I found the service I received was excellent, everything explained in easy, understandable language and Rosa’s English was fantastic.


    Also the cost was very reasonable as I am only on a state pension. In the future if I need any legal advice I will contact her again.


    Sep 15, 2014
  • Keith & Sandra Brown
    Keith & Sandra Brown, Villaviciosa

    Our lawyer was friendly and helpful with a very good command of the English language.


    Even payment for their services could be paid, by bank transfer, directly into their nominated bank account.


    We would definitely use their services again whenever necessary.


    Aug 07, 2014