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Spanish Inheritance and Probate Process

If you are a solicitor or executor dealing with the estate of someone who died owning assets in Spain or if you are a beneficiary inheriting property or other assets in Spain you will need to be aware of the Spanish inheritance and probate process.

 

What is the Spanish Inheritance Procedure?

The main steps to be undertaken when dealing with the Spanish probate process are as follows:

 

Instructing a Spanish Lawyer

The Spanish inheritance and succession process can be quite complicated to deal with, especially if you do not live in Spain or do not speak Spanish fluently.

It is therefore strongly recommended that anyone dealing with the inheritance of an estate in Spain instructs an English-speaking Spanish lawyer who has experience of dealing with estate administrations in Spain for non-Spanish clients.

It is important to ensure that the Spanish inheritance process is dealt with as soon as possible to avoid additional costs and penalties being incurred in relation to the Spanish estate.  It is therefore strongly advised that you do not delay seeking advice if you are dealing with an estate which has Spanish assets.

If you would like details of a recommended Spanish lawyer to assist you with a Spanish inheritance matter, please contact Worldwide Lawyers on 01244 470 339 or at info@worldwidelawyers.co.uk.

 

Providing a Power of Attorney

The Spanish inheritance process itself involves a significant number of personal attendances at various offices in Spain.

If the beneficiaries/ executors of a Spanish estate do not live in Spain, it is common for them to provide their Spanish lawyer with a Power of Attorney so that the lawyer may act on their behalf.

Providing your Spanish lawyer with a Power of Attorney will mean that the entire Spanish legal process can usually be dealt with by the Spanish lawyer without the need for the executors/ beneficiaries to go to Spain.

 

Certification and Translation of the Death Certificate

Any non-Spanish legal documents such as a Death Certificate may need to ‘legalised’ by the Foreign and Commonwealth Office, in order for it to be legally recognised/ admissible in Spain.

In some cases, the death certificate must also be translated and certified by an official translator.

The legalised and (if required) translated death certificate will need to be presented to the Central Wills registry in Madrid.

 

Undertake a Spanish Will Search.

Spain has a Central Wills Registry which registers whether or not a person has a Spanish Will.   A search must therefore be carried out at the Spanish Central Wills Registry in Madrid to confirm the existence or absence of a Spanish Will.

 

Obtain an NIE number:

Each executor/ beneficiary is required to have a Spanish tax number before being able to deal with/ inherit from an Spanish estate. This Spanish tax/ fiscal number is known as an NIE Number.

Spanish lawyers with experience of acting for clients in the UK or other countries will be able to assist in obtaining the required NIE numbers on behalf of the executors/ beneficiaries for the purpose of dealing with the Spanish inheritance.

 

Gather Together Documentation Relating to Estate

You will need to gather together as much information about the Spanish estate and the Spanish assets as possible. In particular it will be helpful to locate the following:

  • Title deeds for any Spanish properties (‘escrituras’)
  • Spanish registered vehicle documentation for cars or other vehicles owned by the deceased
  • Details of any Spanish bank accounts
  • Details of any shares/ other investments in Spain
  • Details of any Spanish loans, mortgages or other debts in Spain
  • Spanish fiscal number certificates (N.I.E Number) for the deceased

Your lawyer should be able to assist you if you do not have all of this information.

If the deceased did not have a Spanish Will but had a will prepared in another country, then an official sealed copy of a Grant of Probate (or equivalent) obtained in that country may be required.  Proof of the beneficiaries’ legal status and relationship with the deceased may also be required e.g. Birth and Marriage Certificates etc.

An advantage of the existence of a valid separate Spanish Will (if there is one), is that it generally reduces the complexity of the Spanish probate process and the extent of the documentation which has to be produced to the Spanish authorities.

Sometimes a Certificate of English Law / Affidavit of Foreign Law confirming the legal entitlement of the beneficiaries (or to provide any other legal clarification) may be required where the estate involves cross-border legal issues.

If your Spanish lawyer is used to dealing with British and other international clients, they may have the expertise to be able to provide this themselves or will be able to assist in obtaining this for you.

If you require an affidavit of foreign law / Certificate of Law or details of a suitable Spanish lawyer, Worldwide Lawyers can assist. Contact us on 01244 470 339 or at info@worldwidelawyers.co.uk.

 

Sign the Spanish Inheritance Deed

The relevant documents relating to the Spanish estate will need to be presented to a Spanish Notary together with a deed confirming the beneficiaries’ acceptance of 
the Spanish inheritance.

This official Spanish Inheritance Deed must be signed by or on behalf of the beneficiaries in the presence of the notary in Spain.

 

Pay Spanish Inheritance and Property Taxes

Once the Spanish Inheritance Deed has been signed, the taxes relating to the inheritance of the Spanish assets must then be paid.

You should have obtained a detailed estimate of all applicable costs and taxes from the Spanish lawyer at the outset of the case to enable to executors/beneficiaries to arrange for provision of funds so that the tax payment can be made immediately following the signature of the official Inheritance Deed.

In addition to Spanish Inheritance tax (Succession Tax), ‘Plus Valia’ Tax may also be payable to the local Spanish town hall if there is a Spanish property in the estate.

For beneficiaries who are non-resident in Spain, tax payments require a personal attendance at the central tax office in Madrid. A Spanish lawyer can deal with this on behalf of the beneficiaries under the Power of Attorney.

For residents of Spain, attendance is required at the tax office of the region of Spain where the deceased and beneficiaries reside.

Payment of Spanish inheritance tax must be made within 6 months of the date of death. Late payments will accrue interest and payment penalties.

 

Transferring Spanish Property to the Beneficiaries.

Following the signature of the Inheritance Deed and payment of any Spanish Succession Tax, applications can be made to the relevant Property Registry in order for the Spanish estate assets to be registered in beneficiaries’ names.

The Property Registration process may involve additional queries in addition to to those required by the Spanish Notary.

 

Releasing funds from Spanish bank accounts.

The deceased’s Spanish bank accounts can only be dealt with once the Spanish Inheritance Deed has been signed and Spanish Succession Tax has been paid. Succession of bank accounts in Spain is usually dealt with by the bank’s central legal department. Dealing with Spanish banks in Spanish probate cases can often be very difficult so it is advisable to have a Spanish lawyer to liaise with the bank on behalf of the executor/ beneficiaries.

 

Distributing Spanish Assets

Once the above steps have been completed, the assets can be distributed to the beneficiaries. The beneficiaries may be required to open a Spanish bank account in order to receive the funds.

For most beneficiaries who do not live in Spain, these funds will then be transferred to their own bank account in their home country.

How To Avoid Losing Money When Distributing Spanish Assets: There can be a significant reduction to the amount of the Spanish inheritance funds actually received by the beneficiaries when these funds are transferred from Spain to the home bank account of the beneficiaries.

In order to minimise this loss and protect as much of the inheritance funds as possible, Executors and beneficiaries are strongly advised to speak with a currency specialist company before arranging the transfer of the funds. The services of a good currency specialist are free and could save you up to 5% of the transferred amount which could be several hundreds if not thousands of euros. For more information about this see: Protecting Overseas Inheritance When Transferring Money Abroad or contact Worldwide Lawyers on 01244 470 339 or at info@worldwidelawyers.co.uk

If you are dealing with the administration of an estate in Spain, Worldwide Lawyers can help. Contact us on 01244 470 339 or at info@worldwidelawyers.co.uk for further information about the inheritance process in Spain. We can put you in touch with an English-speaking Spanish lawyer specialising in dealing with estates where there is property or other assets in Spain and arrange for a no-obligation quote.

 

Advice from reputable English-speaking spanish lawyer

Recommended English-Speaking Lawyers in Spain

Spain’s fantastic weather, relaxed way of life and proximity to the UK and other European countries has meant that Spain has always been a popular destination for foreigners.

Many foreigners therefore have assets in Spain such as a holiday property, permanent home, a business or other assets in Spain. There are therefore may reasons why you may need a lawyer in Spain – for example purchasing a property or business in Spain or dealing with the inheritance of a Spanish estate.

If you need to instruct a lawyer in Spain it can be hard to decide who to choose. Spanish lawyers have not alway has the best reputation for their reliability and efficiency. Without a suitable recommendation for a Spanish lawyer it is difficult to know where to start to make sure you find a reputable Spanish Lawyer who is right for you and your matter and who will provide good value.

Fortunately, Worldwide Lawyers can help! We have provided some guidance below to help point you in the right direction about who to choose when instructing a lawyer in Spain. You can of course also just contact us for details of a recommended Spanish lawyer too!

Worldwide Lawyers can put you in touch with a recommended English-speaking Spanish lawyer who will provide a non-obligation quote. Contact us on 01244 470 339 or email us at info@worldwidelawyers.co.uk.

When deciding on a suitable Spanish lawyer to instruct you will need to check that your lawyer is:

  • Registered: You should check that  your Spanish lawyer is registered with one of the colegio de abogados (Spanish bar associations). Bar associations in Spain are divided into different areas  you will need to find out which of the bar association your lawyer is registered with so you can check this. Ask for a lawyers registration number and check it out before you proceed to instruct them.
  • Insured: You should check that your lawyer in Spain has professional indemnity insurance  to cover the advice that they provide to you. You should also check that the insurance covers the value and type of transaction they are dealing with for you.
  • Experienced: You will also need to ensure that the lawyer in Spain has experience and expertise in the area of Spanish law for which you require advice. For example it may not be a great idea to have a property lawyer deal with your business deals and vice versa unless they have sufficient experience.
  • English-speaking: Your Spanish lawyer should be fluent in English (unless you are fluent in Spanish) so that you will be able to understand the advice being provided.
  • Recommended: Are you able to find anyone who has used the lawyer before and can recommend their services? Worldwide Lawyers obtain feedback from other people who have previously instructed Spanish lawyers to get their feedback and recommendations.
  • Independent: It is extremely important to make sure that your Spanish lawyer is not in any way connected to the estate agent or property developer (if dealing with a property transaction) or the other side. So steer clear from recommendations from estate agents, developers, sellers or the party on the other side of your transaction!

If you need advice in relation to Spanish law, whether in relation to a property purchase/sale, Spanish inheritance law, a family law or Spanish business transaction, Worldwide Lawyers can put you in touch with an independent recommended English-speaking Spanish lawyer who complies with all of the above.

We can put you in touch with an Spanish lawyer who can assist with any of the the following areas of law:

If you need a lawyer in Spain or on any of its islands, please do not hesitate to contact us on 01244 470 339 or email us at info@worldwidelawyers.co.uk

We can put you in touch with a lawyer located in most areas of Spain including Alicante, Barcelona, Denia, Fuerteventura, Galicia, Ibiza, La Zenia, Lanzarote, Madrid, Malaga, Mallorca, Marbella, Murcia, Torreveija, Tenerife, Valencia, Villamartin… and many many more!

If you prefer to deal with a Spanish lawyer based in the UK we can put you in touch with UK based Spanish lawyer to assist you.

If you need a Spanish lawyer contact us today on 01244 470 339 or email info@worldwidelawyers.co.uk. Our friendly and experienced team will be able to discuss your requirements with you and, if required, put you in touch with a suitable law firm in Spain to provide you with a no-obligation quote for their services.

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New EU Succession Regulations To Affect Foreign Wills And Cross-Border Estates

Anyone who has been involved in cross-border inheritance or estate planning will be aware that it is a complex process especially when someone owns property in more than one country. This is because the various assets in the same estate can be subject to the laws of different countries.

However new regulations are due to come into force on 17th August 2015 which are intended to harmonise the differing, and sometimes conflicting, laws of the EU countries in relation to the succession of assets.

The intended effect of the new European Succession Regulations (Regulations) is to make things less complicated so that instead of different laws of different countries applying to different assets, just one country’s laws will govern the succession of all the assets in the deceased’s estate.

So which country’s laws will be applied?

The default position is that the law of the country in which the deceased has their habitual residence at the time of death will apply and will govern the succession of the whole worldwide estate.

People will however be able to opt for the laws of the country of their nationality (or one of their nationalities if multiple) to apply to their estate instead by properly setting this out in their will.

The Regulations also state that the law chosen does not need to be the law of another EU Member State. This would therefore enable, for example, an Australian national who is habitually resident in Spain to choose Australian law to apply to his estate.

It is important to note however that these regulations deal with the laws of succession only i.e. who inherits the assets of the estate. It does not deal with any tax matters, including inheritance tax. National law will continue to determine how inheritance tax is calculated and whether it is the estate or the beneficiary who is liable for the payment of the tax.

All EU countries will apply these regulations with the exception of the UK, Ireland and Denmark who have opted out. Although the UK is therefore not a signatory to these regulations, the regulations are still of considerable relevance to UK residents and nationals with assets in participating EU countries.

After 17 August 2015, an English national (for example) will be able to create a Will that stipulates that English law is to apply to his/her entire worldwide estate, including property in other participating EU member states. As such, any EU member state which is a signatory to the regulation would be required not to apply its own succession rules to those assets, and apply English succession law instead.

Often we get asked if will therefore still be necessary to make a separate will covering the assets of each country. Our advice is always to seek the advice of a properly qualified lawyer to advise you, as the position may be different dependent on each individual’s circumstances. They may also be additional benefits to having more than one will when it comes to the practicality of administering your estate.

The Regulations also provide for the issue of a European Certificates of Succession. This is a document similar to a Grant of Probate and provides proof of who is entitled to the assets of the estate. The ECS will be issued by the authorities of the participating Member State in which the deceased was habitually resident and will be recognized by all of the participating Member States.

For example, the beneficiaries of a Spanish National, who dies habitually resident in France, with assets in France, Italy and Spain will be able to deal with all the assets on the basis of the one Certificate which will be recognised not only in the country issuing it (France) but also (in this example) Italy and Spain.

However because the UK has not opted in to the Regulations it is not bound by them or subject to their application. Therefore where a UK national who is habitually resident in France has chosen UK law to apply to his estate it may still be necessary to obtain a UK grant of probate to administer any UK assets.

If you require any advice in relation to these new Regulations and how they may affect you or if you need assistance with making a Will contact Worldwide Lawyers who can put you in touch with a lawyer to advise you.

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The best Will in the world

You may already have a Will which complies with the requirements of English law however if you have assets in another country your English Will may not have the results you intend due to conflicts with the laws of that country.

There are many cross-border issues that can prejudice the successful operation of your English Will. For example:

  • Many countries do not recognise the concept of a trust. Therefore if your Will creates a trust over assets in a country that does not recognise trusts, this could inadvertently give rise to a gift to your executors.
  • Some countries operate the marital regime of Community Property whereby on marriage the possessions of the couple are merged in a joint estate and disposed of by means of a joint Will.
  • Other problems may be created because of the different ways in which different countries apply their inheritance laws. You may be considered to be a citizen of one country, habitually resident in another and domiciled in another, with each country seeking to apply its conflicting laws to your Will.
  • The most common issue however is likely to be forced heirship. Law in England and Wales provides that a person making a Will has testamentary freedom to leave their assets to whomever they wish. Many other countries however have some form of forced heirship laws which require a person to pass a fixed portion of their estate to certain relatives, usually their children or spouse. These rules will apply regardless of what is in their Will.

Forced heirship laws do not however always apply to the estate of a foreign person, or at least do not apply to particular assets. In relation to your assets abroad, English law distinguishes between different types of assets. English succession law is applied to your movable assets (i.e. your investments, cash, bank accounts, personal possessions etc.) but allows the succession law of the country where your immovable assets are (i.e. your land and property) to be applied.

The following examples show how each countries succession laws might apply to a person domiciled in England and Wales with immoveable assets in the following countries:

Scotland: Even as close to home as Scotland forced heirship may present an issue. Scotland has forced heirship provisions called Legal Rights. However, provided you are not domiciled in Scotland when you die, your English Will should be able to deal with your assets in Scotland.

France: France has the most strict and powerful forced heirship provisions. These can require certain percentages of the deceased’s estate to pass to children in preference to the surviving spouse. Movable estate in France can pass in accordance with your English will, however your French property and land may not.

Spain: Spanish nationals are required to leave certain portions of their estate to their children and certain other relatives. Spanish inheritance law does allow citizens of England and Wales the freedom to leave all their estate to whoever they like.

Switzerland: Although there are forced heirship requirements for Swiss nationals, if your English Will contains wording specifically applying the succession law of England and Wales, then your English Will could be effective in dealing with your Swiss estate.

Brazil: In Brazil, children and the surviving spouse are automatically entitled to 50% of the deceased’s estate. If there were no children in the marriage, then parents or grandparents would also be able to claim a share of the estate. If you are domiciled in England and Wales, succession of assets situated in Brazil will be governed by English law unless this is less favourable to the spouse and any children, in which case Brazilian law will apply.

Louisiana: The only state in the USA which has a forced heirship regime. Here the forced share may be claimed by forced heirs that are 24 years of age or younger. The fixed share is at least 50% of the estate of the deceased. Any property of a person domiciled in England and Wales which is located in Louisiana can however pass in accordance a Will made in England and Wales once probate has been received.

Various conflicts and complexities can arise from cross-border estates. There may also be tax implications for example where your spouse is not able to inherit the assets located abroad making the any spouse exemption to inheritance tax unavailable.

It is generally recommended that an additional Will should be made in relation to foreign assets as this can help to eliminate ambiguities and make it cheaper and quicker to administer the estate. However, if you intend to rely on an English Will to deal with foreign assets, care must also be taken to ensure that the wording does not preclude this. Any foreign Will should be carefully drafted to ensure that it does not conflict with or revoke your English Will.

Clearly legal advice needs to be taken from a lawyer who specialises in the succession law of the country in which your assets are held. It is recommended that this advice is taken not only when considering making a Will but before you purchase property abroad.

Contact Worldwide Lawyers for legal assistance with Wills, Probate and estate administration abroad.

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Tips for renting out your overseas property

If you’re planning to rent out your overseas property, it may be helpful for you to consider the following to help make it a successful investment.

Are you allowed to let the property?

You should check that you are allowed to rent your property out on a short-term basis as some countries do not allow foreigners to rent property. Some resorts or apartment blocks may have their own restrictions for example the amount of weeks it can be let out and when. These restrictions will all impact your potential rental market.

Are you planning to use the property yourself?

Whether the income is something that you will rely upon or will just use to help with the running costs should be taken into consideration when deciding when you will use the property. If you plan to have large family get-togethers over Christmas and New Year in your impressive new ski chalet in Val d’Isère or if you want to spend the whole of August enjoying your Sicilian villa, you could be losing your most lucrative rental weeks.

Work out how many weeks the average property in your area rents for and what price you could get for each week before making your plans.

When you invite strangers into your house you have to accept that they may not look after it as well as you would. You should invest in a lockable cupboard to store away any personal or valuable items to be left at the property.

How are you going to attract interest?

Having your own website to advertise your property can have cost benefits but there are so many competing websites you need to advertise somewhere you will definitely be seen. Reputable holiday rental websites can be a great way to get exposure to millions of holidaymakers and manage booking enquiries.

Wherever you advertise, having great photos and descriptions can really help set the holiday scene and sell a stay in your property. Make beds, set tables, and turn on fires for the photos to maximize the property’s appeal. Guests will want to see exterior shots, outside facilities and the view, plus photos of each room.

Know your target audience and research the price of similar properties and other accommodation in the area. You should get an understanding of the type of tourists that visit the area and what they will want from the property. Running offers to attract off-peak holidaymakers can help maximize the periods when your property is rented.

Personal recommendations and online reviews have a big impact. Providing little extras such as a welcome pack of basics and local goodies and a file with useful information on local attractions, activities and transport can enhance a client’s stay and get them raving about your property.

Luxury furnishings and features such as log fires and hot-tubs can attract holiday makers to your property and may enable you to charge higher rates.

How will you manage the property?

Managing your rentals and the maintenance between lets from thousands of miles away can be difficult and time consuming. Hiring a good property management company is often a sensible solution as they can be available to arrange cleaning between lets, securing and checking the property and taking away the hassle of day to day management.

A property management company will also be able to liaise with you clients to hand over keys, answer queries and arrange additional services to ensure that your clients’ stay is as smooth as possible and that they will recommend your property to others.

A 20% cut for the property management company is usual but can be much more so you will need to be sure of what the property management company will do for you. You should ensure that you have checked that they have a good reputation so that they are able to deal with any queries you have and manage any unexpected problems.

What legal requirements do you need to comply with?

You will need to inform the taxman in the UK as soon as you start earning money from your home abroad. You may also need to complete a tax return in the country where you own the property.

You should make sure that you keep all receipts and papers relating to your expenses as many costs, such as letting agent’s fees, legal fees and insurance, are deductible from the rent you have to pay tax on.

You will also need to make sure that you inform the household insurer for your overseas property to ensure you are covered for using the property as a rental. You should also ensure that you have insurance in place to protect you should someone decide to sue you after falling down badly lit stairs or tripping on a dislodged tile.

Make sure you read the small print on your insurance documents and satisfy yourself that you can comply with any restrictions such as having the water turned off during vacant periods.

You may also need to ensure that furnishings fit in with any legal requirements, such as made from flame resistant material and ensure that the property meets health and safety requirements.

If you need advice from an overseas lawyers in relation to purchasing a holiday home or rental investment contact Worldwide Lawyers who can put you in touch with a specialist independent lawyer.