Probate in Spain - Cornish & Co. |
 With so many people now owning property abroad it is not unusual for the probate practitioner to encounter the problem of having to deal with the devolution of a foreign property. This article is intended to provide an insight as to how the problems posed by the existence of an estate containing a Spanish property can best be attended to.Initially it must be established from the family or other available sources, if the deceased made a Spanish Will disposing of the property as this will ease obtaining Probate, transferring the property to the named beneficiaries and be more cost effective. However, if the deceased left only a foreign Will or died intestate, distribution of the property can still be dealt with effectively and at reasonable cost. A valuation will be needed of the deceased's estate in Spain (particularly the rateable value of any realty). Enquiries need to be made as to the age of the beneficiaries if there is a Will (whether foreign or Spanish) or upon intestacy, as the nature of the relationship between the deceased and the beneficiary is important in calculating any Spanish Inheritance Tax due. Inheritance tax may be payable in Spain as the allowances are not in general terms as generous as those available in other countries. If there is a foreign Will or the deceased died intestate; it will be necessary to have the following documentation translated by an official translator and then notarised and apostilled before matters can be dealt with in Spain. 1. The foreign Will. 2. The Grant of Probate, Letters of Administration or the equivalent. 3. The Death Certificate. 4. A Certificate of Law may be required to explain the law of intestacy. A copy of the Escritura or Title Deeds to any real property and a copy of the local rates (Impuesto Sobre Bienes Inmuebles or IBI) receipt are also required. If there is a Spanish Will; then only a notarised and apostilled copy of the death certificate is required. Before the Spanish Notary (the only person entitled to deal with such matters in Spain) will sign the Inheritance Title Deed transferring title, he will need a copy of the Spanish Will from the Central Wills Registry in Madrid to ensure that he is acting in accordance with the last Will and Testament of the deceased made in Spain. It is normal procedure for the beneficiaries of the Spanish estate to provide to whoever is acting on their behalf in Spain a translated, notarised and apostilled Power of Attorney so they can accept the Deed of Declaration of Heir on the beneficiary's behalf. The concept of having the Executors deal with the Estate is not common in Spain and it is the usual practice for the beneficiaries rather than the Executors of the foreign Will to execute the relevant Power of Attorney. Prior to the Inheritance Title Deed being signed, the Spanish Notary will need to be satisfied as to the following:- 1. The entitlement of the beneficiary or his representative to sign the document - hence the need for a Power of Attorney. 2. That the deceased has indeed died - proven by the translated Death Certificate and Grant of Probate, Letter of Administration or the equivalent. 3. The entitlement of the beneficiary to the property - proven by the translation of the foreign Will. 4. Any relevant succession taxes have been paid. The amount payable can be self assessed although there is always a possibility that this will be reviewed by the Spanish Authorities. In the case of real property; once the Inheritance Title Deed has been signed then it will need to be registered at the Land Registry. The registration should be completed before any attempt is made to dispose of the property. When dealing with Spanish property the following further points should be borne in mind:- 1. There is no concept of joint tenancy in Spanish law. Therefore, if a husband and wife each own the property they are deemed to own a divisible one half share and upon the death of one of them then, if the survivor is the beneficiary, a Inheritance Title Deed needs to be executed transferring that one half share to the other spouse. 2. Certain time limits exist with regard to payment of inheritance tax due and penalties are imposed if payment is not made on time. 3. Although under Spanish law enforced heirship provisions exist these are not normally applied to foreign nationals who are neither domiciled or normally resident in Spain. |
