Wills and Estate Administration
The loss of a loved one can cause a great deal of pain and distress to both family and friends. If you own a property in Spain, have money in a Spanish bank account, or possess any other assets in Spain it would be wise to consider making a Spanish Will. This can save a great deal of time and money and you can relax in the knowledge that when the time comes your estate will be administered by professionals who have the necessary knowledge and experience with the law in both jurisdictions to avoid uncertainty and unnecessary delays. Even if you already have an English Will it is prudent to consider obtaining a Spanish Will to deal with your Spanish assets exclusively.
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A Spanish Will must be signed before a Notary Public in order to be valid. This can be done in the UK, but must then be recorded at the public registry in Spain. Scornik Gerstein LLP has extensive experience in drafting both English and Spanish Wills and is well equipped to advise you on any tax liabilities or other issues which may arise on the execution of your Will.
We are also able to advise on reclaiming Inheritance Tax. If you have paid Inheritance Tax in Spain within the last four years and either you or the testator were non-residents of Spain, you may be entitled to a rebate. Please contact us for more information.
The Advantages of Making a Spanish Will
If you or your clients own real estate, money, securities for money or chattels in Spain, you or your client may consider making a Spanish Will.
Obtaining probate in Spain without a Spanish Will means incurring in extra costs, and will also take additional time. Saving time will ensure that you or your clients will be able to file Spanish IHT within the required 6-month period without attracting penalties, interests and further legal fees.
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All Spanish Wills must be registered with the National Spanish Last Wills’ Registry. Before obtaining probate in Spain you must obtain a certificate from the National Spanish Last Wills’ Registry, to confirm whether the deceased left a Spanish Will and if so, where and when. Obtaining a certificate from the National Spanish Wills Registry is compulsory to apply for probate in Spain. This means that no one will be able to apply for probate in Spain without having first obtained a certificate from the registry confirming the position.
We have great expertise in the drafting and granting of Spanish Wills. These can be drafted taking into account any other Will which may be in place in order to ensure that there is no overlapping between them. You can grant the Will with our in-house Notary Public or we can find one nearby your domicile. We will then legalise it and submit it to the Spanish Last Wills’ Registry for registration purposes. Then it can be returned to you or we can store it safely in our archive at no extra charge.
Why us?
Having in place a validly executed Spanish Will (coexisting with your English Will, if there is an English Will, or any other will for that matter) requires the legal expertise and in-depth knowledge of cross-border succession rules.
We strive at all times to offer an accessible, affordable, personal service. You can get in touch with us in person, via phone, email, text, website or other social media in English, without being “lost in translation”.
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Our London office has developed a strong long-standing successful probate practice. We have been practising since 1984, and we are duly registered with the Solicitors Regulation Authority, assuring our clients that they will benefit from a responsive, professional and helpful service with full professional indemnity cover.
Services we offer:
We cover all aspects of estate administration on both the UK and Spain border. We can assist you with:
- Valuing the assets of the Estate
- Agreeing tax liabilities and applying for and executing the Grant of Probate or equivalent in the UK
- Drafting Spanish Wills, English Wills
- Capital gains and inheritance tax planning
- Spanish Probate and administration
- Charities
- Offshore tax structures
Is it essential for an owner of assets in Spain to make a Will?
In Spain, it is not essential for an owner of assets to make a Will. Foreign Wills are valid and enforceable, so long they have been validly granted according to the law of the country where it was granted and duly legalised. However, it is advisable to grant a Spanish Will dealing exclusively with the testator’s Spanish assets to avoid incurring in unnecessary legal costs and delays derived from the need to translate and legalise the foreign will and even some times produce and Affidavit of foreign law in order to explain to the Spanish authorities how foreign law would apply to that will. As explained, foreign wills must be translated into Spanish and legalised before a Spanish Consul (or affixed with an apostille in countries signatory to the Apostille Convention) in order to be executable before the Spanish Authorities.
What are the formalities for making a Will in Spain?
The most used type of will is the open notarial will. It is drawn up before a notary. It will require 2 witnesses in the event that the testator (a.) does not know or cannot sign, (b.) is blind, (c.) does not know how to or cannot read the testament or (d.) the notary so indicates. It can also be granted before 5 witnesses and no notary public in the event of serious danger of death and before 3 witnesses and no notary public in the even of epidemic disease. It will require to be translated into the grantor’s language in the event that the notary does speak the grantor’s language. It will be dated and timed and will contain a declaration as to that the notary either allows the testator to read the testament or will read it aloud to him after which it will be signed by the testator.
Other types of wills are military and maritime wills, holographic and closed notarial wills.
Which is the applicable law to the will and the estate?
Within Spanish jurisdiction there are different regional regulations which would apply depending on the testator's (the person who’s will is to be executed) civil residence (vecindad civil). Where regional regulations do not apply, formalities for making a Will and the law to be applied to wills and estates are set out in the Spanish Civil Code. According to Art 9.8 foreign inheritance law would apply to the will and the Spanish estate of a foreign individual, unless by virtue of a reenvoi of the grantor’s law to Spanish law, Spanish Law is to be applied (subject to the principles of unity and universality of the estate to be wound-up). If the latter, that Spanish estate of that foreign individual will be subject to the limitations imposed by the legitimas or compulsory legacies to which forced heirs will benefit from which can amount to up to 2/3 of the said estate.
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To be enforced in Spain, foreign grants of probate must be legalised (or affixed with an apostille, within countries signatory to the Apostille Convention) and translated into Spanish. Similar to what could take place with your English or foreign Will, an affidavit or certificate of law may sometimes be required in order to prove that the grant of representation (probate) complies with the formalities of the country where your English or foreign will was executed.
Death of foreign nationals
Foreign nationals and Spanish nationals are not treated alike in estate administration issues since Spanish inheritance rules refer to the testator’s own national law as above explained.
Spanish courts could be competent to decide on succession matters if the deceased's last domicile was located in Spain regardless of whether part or all of the estate’s assets are located within the Spanish territory.
Establishing title and gathering the assets
A list of all the assets comprising the estate must be prepared. Generally, a deed of acceptance must be executed before a public notary. We can assist you with discovering assets, valuing any that come into the scope of the probate law in the relevant jurisdiction, accounting for relevant taxes and executing the Grant of Probate. We have an in-house notary public who will ensure compliance with Spanish regulations necessary for recognising, enforcing or registering your representation in the estate.
Procedure for paying taxes
As opposed to the UK where the estate itself is liable to pay inheritance tax (IHT), in Spain every single beneficiary to the estate is liable to pay Spanish IHT on his/her share and, as such, must file for an individual tax return or a declaration for the tax authorities to determine the tax due on the upcoming 6 months (extendible to further 6 months). If this obligation is not met, the transfer of the title of the assets cannot be registered with the relevant public registry nor can the assets be transferred through any other means. We can assist you with calculating and filing your Spanish IHT return, extending the limitation period to file your IHT return in order to avoid late filing penalties and interest, and liaising with the Spanish tax authorities to negotiate a payment plan, if necessary.
Distributing the estate
All parties should agree on the distribution of the assets. If not, any person can instigate proceedings with a legitimate interest in the estate, in order for the court to determine the final distribution of the assets.
It is advisable to accept and distribute the estate within six months after the testator's death to comply with the mentioned six-month term to pay inheritance tax (an extension can be requested), and avoid taxation issues arising from a division in a situation of co-ownership among heirs.
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Assuming Spanish law applies to the winding-up of the estate, it will deal with the estate of the deceased as a whole, single matter, irrespective of its location.
In any event, anyone with a legitimate interest in the testator's estate is entitled to challenge the Will, the distribution of the estate or obtain a supplementary share of the estate, in case Spanish forced heirship applies.
Succession regimes - What is the succession regime in your jurisdiction (for example, is there a forced heirship regime)?
The Spanish Civil Code provides for a common succession regime. This applies where no regional regulations exist (Catalonia and Navarra, among other regions, for example, have their own succession rules). Forced heirship rules vary considerably between regional and local systems.
What is forced heirship?
Forced heirship rights are mandatory and cannot be altered by the testator. This means that (part) of the deceased’s estate will be distributed following specific succession rules without the freedom of disposition you can enjoy in the UK, except where a regional succession regime applies which disposes otherwise.
Assets received by beneficiaries in other jurisdictions
Assets received by beneficiaries in other jurisdiction are taken into account to determine forced heirship rights. Under Spanish inheritance rules, the same applicable law should govern the entire succession. When the Spanish rules are applicable, they take into account the worldwide assets of the deceased. The forced heirs may amount to the inheritance of such assets and they are entitled to carry out any proceedings in protection of their rights. This also applies when assets are located abroad.
Intestacy – Death without a will
In the case of intestacy, common Spanish civil law establishes the following order to inherit:
- Children and descendants.
- In the absence of children and descendants, parents inherit in equal shares and if only one parent is alive, only he/she will inherit. In the absence of both parents, the right to inherit passes on to the closest ascendants.
- In the absence of the above, the spouse will inherit.
- In the absence of spouse or if the spouses were separated or divorced upon the demise, collateral relatives will inherit.
- In the absence of relatives with a right to inherit, the State will inherit.
If you would like more information, please do not hesitate contacting us.
