Inheritance With Spanish Will

8/6/2019 Inheritance With Spanish Will

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What you need to know about

InheritanceIn S ain

With a Spanish Will


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Legal Note - It should be remembered that the application of Spanish law varies considerably according to region and the circumstancesof each individual and so this report can be treated as a general guide only and not as a substitute for qualified legal advice regardingany particular situation. Responsibility for acting on foot of this guide alone is entirely personal and no liability can be accepted by

myAdvocate Spain. To get advice on your specific situation from expert legal practitioners in Spain please see the end of the guide.

Claiming an Inheritance in Spain

With a Spanish Will

Dealing with the death of a spouse or other family member is a difficult time to have to deal withadministrative matters but unfortunately the law insists that they be dealt with and failure to do so canbe a costly experience in Spain. Spanish law stipulates that any taxes that are due to be paid as a resultof receiving an inheritance must be paid within six months of the date registered on the death

certificate. If this is not complied with then penalties are charged and interest begins to accrue.

According to Article 27.2 of the 'Ley General Tributaria' the charges for late payment of InheritanceTax are as follows:

within 3 months of the deadline 5% surcharge within 6 months of the deadline 10% surcharge within 12 months of the deadline 15% surcharge > 12 months since deadline 20% surcharge.

In the first three scenarios, the surcharge is a percentage of the amount payable alone. In the lastscenario where 12 months have elapsed since the deadline, interest also becomes payable, currently at arate of 4.75%.

So, it can readily be seen that it is certainly in our best interests to get all of the legal issues connectedwith an inheritance in Spain resolved as soon as possible. But where do we start?

Three separate situations can be identified and each will be looked at in separate reports:

Claiming an inheritance under a Spanish will

Claiming an inheritance under a foreign will Claiming an inheritance where there is no valid will

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Claiming an inheritance under a Spanish will

Being the most straight-forward we will start where a will has been drawn-up in Spain and inaccordance with the legal provisions for creating a valid will.

1. The first thing that must be done is to obtain the Death Certificate (Certificado deDefuncin ). 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 befound 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 onobtaining a death certificate can be requested:In England or Wales: https://www.gro.gov.uk/gro/content/certificates/default.aspIn Northern Ireland: http://www.nidirect.gov.uk/groIn Scotland:http://www.gro-scotland.gov.uk/famrec/bdm.htmland in the Republic of Ireland: http://www.birthsdeathsmarriages.ie/

Please note that if the Death Certificate is not written in Spanish then it must be translatedand legalised i.e have the Apostille stamp attached. It can then be used as an equivalent tothe Spanish 'Certificado de Defuncin'.

2. With the Certificado de Defuncin or legalised Death Certificate arranged then the next stepis to request the Certificado de Registro General de Actos de ltima Voluntad (RGAUV).The RGAUV certificate is issued by the central office for wills and testaments in Madridand 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 beforeordering the certificate. If ordering the certificate then there is an administrative charge thatrequires completing form 790. It will be necessary to send an original (not a copy) of thedeath certificate and it normally takes around 10 days to receive the certificate.

3. 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 sameplace as the RGAUV certificate. If however, as is more likely, the life insurance was takenout in a country of origin such as the UK or Ireland then the insurance company will havetheir own process. This will typically involve sending an original (not a copy) of the deathcertificate and completing whatever form the insurance company uses.

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4. Having the first two certificates on the list allows us to get a Certified copy of the will fromthe notary in which the will was signed. This must be an authorised copy and not the simplecopy 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 asthe notary office in which the will was signed. It is in this notary office that the will is keptand where an authorised copy can be obtained by presenting the Death Certificate andRGAUV 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 asbeneficiaries or as executors of the will.

5. An inventory should be carried-out to determine the final assets of the deceased. To identifyproperty owned by the deceased is relatively simple where the property is registered on thelocal Property Registry and involves requesting a 'nota simple' which will detail thedeceased 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 torequest a certificate of the value of these on the date of death of the deceased by presentingthe death and RGAUV certificates. Once these certificates have been obtained no moneymay be withdrawn from the account as it will be frozen until it has been legally transferredto the beneficiary.

6. Should the deceased have accumulated debts then these become the responsibility of thebeneficiaries. This liability extends to the personal assets of the beneficiary should theproceeds of the inheritance not be sufficient to cover them. This may be important ifinheriting a property that is in significant negative-equity. So it can be important to considerwhether it is worth accepting an inheritance. Such acceptance can be tacit and so it isadvisable to formally reject the inheritance.

7. On the basis of the inventory previously carried-out, a 'manifestacin 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, stipulateshow the assets are to be distributed and any debts satisfied. In certain cases this documentmay be drawn-up privately, for example where there is only one sole heir or where the assetto be inherited is a property which is not to be divided for the time being. Otherwise, thedocument must be drawn-up publicly in the presence of a notary.

8. Once the 'cuaderno particional' has been drawn-up then it is necessary to pay any taxes dueunder the inheritance. In Spain the liability for inheritance tax depends on the existingwealth of the beneficiary and the proximity of their relationship with the deceased. Thereare major differences with UK and Irish tax laws and, for example, there is no automaticexemption for spouses. A major factor determining the tax payable is whether the

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beneficiaries are resident in the province as this can almost eliminate the tax payable. As this is a majortopic in it's own right it is dealt with in a separate free report available from LPS: 'Inheritance Taxes in

Spain'.

9. Once the matter of taxes is 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 inthe 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

certifcate 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 ofyour DNI or passport.

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Inheritance With Spanish Will

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