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Inheritance with non-spanish willDocument Transcript
What you need to know about Inheritance In SpainWith a non-Spanish Will www.myadvocatespain.com
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 bymyAdvocate Spain. To get advice on your specific situation from expert legal practitioners in Spain please see the end of the guide. Inheriting in Spain with a non-Spanish willIt is often the case that foreign nationals do not draw-up a Spanish will to deal with their Spanish assetsmeaning that any will that they have 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 willwith the only addition being that all of the relevant documents need to be legalised and officiallytranslated so that the Spanish notary can draw-up the necessary Spanish documentation allowing forassets to be distributed to the heirs. Unfortunately this will add considerably to the expense and inaddition 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, thefollowing needs to be verified: • There is 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 estateA will in the UK will typically name one or more executors to handle testamentary matters when thetestator dies. The executor should request a Grant of Probate which is an official document issued bythe 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 byhaving the Hague Apostille stamp attached by a Notary Public whereupon it is ready to be translatedinto Spanish. This can be done by either sending it to an official translator in Spain or to the closestSpanish consulate.Once the will has been legalised and translated it is simply a matter of following the standard processfor an inheritance under a Spanish will. For ease, the steps are reproduced below: 1. The first thing that must be done is to obtain the Death Certificate (Certificado de Defunción ). 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 be found by going to: Registro Civil . 1
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 on obtaining a death certificate can be requested: In England or Wales: https://www.gro.gov.uk/gro/content/certificates/default.asp In Northern Ireland: http://www.nidirect.gov.uk/gro In Scotland: http://www.gro-scotland.gov.uk/famrec/bdm.html and 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 translated and legalised i.e have the Apostille stamp attached. It can then be used as an equivalent to the Spanish Certificado de Defunción.2. With the Certificado de Defunción or legalised Death Certificate arranged then the next step is to request the Certificado de Registro General de Actos de Última Voluntad (RGAUV). The RGAUV certificate is issued by the central office for wills and testaments in Madrid and 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 before ordering the certificate. If ordering the certificate then there is an administrative charge that requires completing form 790. It will be necessary to send an original (not a copy) of the death 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 same place as the RGAUV certificate. If however, as is more likely, the life insurance was taken out in a country of origin such as the UK or Ireland then the insurance company will have their own process. This will typically involve sending an original (not a copy) of the death certificate and completing whatever form the insurance company uses.4. Having the first two certificates on the list allows us to get a Certified copy of the will from the notary in which the will was signed. This must be an authorised copy and not the simple copy that a testator would typically take away after signing the will at the notarys office. The RGAUV certificate will identify the most recent and therefore legitimate will as well as the notary office in which the will was signed. It is in this notary office that the will is kept and where an authorised copy can be obtained by presenting the Death Certificate and RGAUV 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 as 2
beneficiaries or as executors of the will.5. An inventory should be carried-out to determine the final assets of the deceased. To identify property owned by the deceased is relatively simple where the property is registered on the local Property Registry and involves requesting a nota simple which will detail the deceased as the current owner. This can now be done on line by going to: Nota Simple . Should the deceased have had bank accounts or share-holdings then it is necessary to request a certificate of the value of these on the date of death of the deceased by presenting the death and RGAUV certificates. Once these certificates have been obtained no money may be withdrawn from the account as it will be frozen until it has been legally transferred to the beneficiary.6. Should the deceased have accumulated debts then these become the responsibility of the beneficiaries. This liability extends to the personal assets of the beneficiary should the proceeds of the inheritance not be sufficient to cover them. This may be important if inheriting a property that is in significant negative-equity. So it can be important to consider whether it is worth accepting an inheritance. Such acceptance can be tacit and so it is advisable to formally reject the inheritance.7. On the basis of the inventory previously carried-out, a manifestación 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, stipulates how the assets are to be distributed and any debts satisfied. In certain cases this document may be drawn-up privately, for example where there is only one sole heir or where the asset to be inherited is a property which is not to be divided for the time being. Otherwise, the document 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 due under the inheritance. In Spain the liability for inheritance tax depends on the existing wealth of the beneficiary and the proximity of their relationship with the deceased. There are major differences with UK and Irish tax laws and, for example, there is no automatic exemption for spouses. A major factor determining the tax payable is whether the beneficiaries are resident in the province as this can almost eliminate the tax payable. As this is a major topic in its 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 in the 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, 3
mot certificate, as well as the cuaderno particional, original (not a copy) death certificate 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 of your DNI or passport.In the next report you receive, we shall discuss the major issues regarding claiming aninheritance where no valid will has been drawn-up. _____________________For information on contacting legal experts in the field of inheritance tax law in Spain please go to:www.myadvocatespain.com 4