1. What you need to know about
Inheritance
In Spain
Where there is no valid Will
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2. Legal Note - It should be remembered that the application of Spanish law varies considerably according to region and the circumstances
of each individual and so this report can be treated as a general guide only and not as a substitute for qualified legal advice regarding
any 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
where there is no valid will
It is said that approximately two-thirds of people in the UK die without making a will. It is an
unfortunate fact that many foreign nationals with assets in Spain fail to make a valid will either in
Spain or in their country of origin and as a result their assets must be distributed according to the rules
of intestacy.
Normally the appropriate rules of intestacy are those of their country of origin i.e. Scotland or Republic
of Ireland for example. At times however the Spanish rules of intestacy apply. This is typically where
the deceased was domiciled in Spain.
The determination of where a person is domiciled is a very technical legal question but often a person
who is living in Spain and has only Spanish assets and no financial or other ties to another country may
be considered to be domiciled in Spain.
In the first place we will look at the process to follow when the deceased left no will and then we shall
look at the rules of intestacy of the UK, Ireland and Spain to determine how this will affect the
distribution of assets. The rules that apply to any particular situation will depend on the individual
circumstances of the deceased.
Process to follow if there is no valid will
The first step to take if there is no will is to apply to the probate registry for Letters of Administration.
Normally, if there are no complications, this should take approximately three to five weeks. The forms
that you need to fill in depend upon where the application is being made, but in the UK they can be
downloaded from: http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do (choose
probate from the list).
As well as completing the relevant forms and payment of the administration fee, it is necessary to send
the death certificate.
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3. One you are in receipt of the letters of administration the next step is to have them legalised and then
translated into Spanish for use in Spain. Translation can be carried-out by the Spanish consular office
and the Apostille stamp attached by any registered notary public.
Rules of Intestacy – England & Wales
Married couples or civil partners can inherit under the rules of intestacy in England and Wales. So if a
couple have divorced, the ex-spouse will not inherit although informal separations do not prohibit from
inheriting.
Where an estate is valued at more than £250,000, the partner inherits
• all the personal property and belongings of the person who has died, and
• the first £250,000 of the estate, and
• a life interest in half of the remaining estate (the partner can benefit from that half but not sell or
spend it).
A distinction must be made where any property or bank accounts were owned 'jointly' by the couple as
in those cases the assets belonging to the deceased would automatically pass to the surviving spouse.
The couple's children will inherit one-half of an estate over £250,000. If there is more than one child
that half is shared equally.
Rules of Intestacy – Scotland
The rules of intestacy in Scotland are rather different to those in England & Wales and are found in the
Succession (Scotland) Act 1964 as amended.
Firstly, any debts owed by the deceased must be dealth with. The surviving spouse is the primary
beneficiary under Scottish intestacy rules. In Scotland the surviving spouse is entitled to what is known
as 'prior' rights which signify a right to any:
• house (up to a value of £300,000)
• furniture (up to a value of £24,000)
• cash (up to a value of £42,000 if children or £75,000 if no children)
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4. After this it should be noted that Scottish rules of intestacy distinguish between a 'moveable' and a
'heritable' estate. The former relates to cash, jewellery, car, shares etc. The latter relates to property and
land.
Once the prior rights have been distributed to the surviving spouse, the moveable estate is distributed as
follows:
• one-third to the surviving spouse or one-half if no children
• one-third to the children or one-half if no surviving spouse
• one-third to the free estate
The 'free' estate refers to that which is left after debts, prior rights and legal rights. The free estate
should be distributed equally among the children or if no children then jointly to brothers and sisters
and parents followed by brothers and sisters solely then parents solely...and so on down the line of
succession until the Crown.
Should a husband and wife or civil partners die together in circumstances where it is not possible to
determine who predeceased who, then for the purposes of intestacy in Scotland both are said to have
predeceased the other when considering the rights of beneficiaries to their mutual estates. As a result
each is ignored when considering the legitimate heirs to each others' estate.
Should there have been a judicial separation then the husband is barred from inheriting the wife's estate
but the reverse does not hold and a wife would not be so barred. Divorced partners do not benefit from
each others estate.
It is important to note that under Scottish inheritance law, a testator does not have 100% freedom of
disposition of personal assets and a beneficiary may choose to inherit under the laws of succession or
under the will (if named as a beneficiary). However, the beneficiary must renounce one or the other.
Rules of Intestacy – N. Ireland
The rules of intestacy in Northern Ireland are broadly speaking, as follows:
If there are no children (or other relatives):
• the surviving spouse or registered civil partner inherits all of the estate
If there are children:
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5. • the surviving spouse or registered civil partner inherits personal assets such as
car, jewellery, art collection, household goods
• equity in the estate (inc. property etc) up to £250,000
• a life interest in one-half of any remainder if one child or one-third if more than
one child
If there are no children/grand-children but parents alive:
• the surviving spouse inherits personal assets, the estate up to a value of £450,000
and one-half of the remainder (not a life interest)
• parents inherit the remaining half
• if parents no longer alive then brothers and sisters share the remaining half
equally
In Northern Ireland as in other jurisdictions of the UK, a divorced spouse receives no interest in the
estate but a merely separated spouse would.
Rules of Intestacy – Rep. of Ireland
In the Republic of Ireland it should be understood that whether or not a will has been created there are
minimum guarantees for surviving spouses that ensure that they will inherit a minimum portion of the
estate.
So even where a will has been made, the following applies:
• Where there are no issue a spouse is entitled to one-half of the estate
• Where there are children a spouse is entitled to a minimum of one-third of the
estate
• If there is a surviving spouse and no children but surviving grand-children then
the spouse is entitled to one-half of the estate
In general, where there is no valid will, the following rules of intestacy apply:
• Where there are no children, the spouse inherits the entire estate
• Where there are children and a surviving spouse, the spouse inherits two-thirds of
the estate
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6. Spanish Rules of Intestacy
Under Spanish law, assets obtained during the life-time of a marriage are shared (in a regime known as
a 'sociedad de gananciales'). Accordingly, the deceased spouse may transmit only one-half of the
shared assets upon death. Other assets accumulated outside of the marriage for example before the
marriage or a personal inheritance from a parent are added to this one-half to form the inheritance. The
Spanish law stipulates that in the absence of a valid will assets should be distributed as follows:
• equally to any children of the marriage (or if any child has predeceased the parent then to their
children per stirpes),
• if no children, equally to surviving parents
• if no surviving parents then to the closest of other surviving ascendants (uncles, aunts,
grandparents)
• in the absence of surviving ascendants, to the surviving spouse
• if no surviving spouse then to brothers and sisters
The outcome described above may be completely at odds with the preferred outcome and so it is
important to make a will that covers Spanish assets to prevent this occurring.
In the next report, we cover the subject of inheritance taxes: tax rates and exemptions as well as
how the taxes are applied and how they are paid.
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For information on contacting legal experts in the field of inheritance tax law in Spain please go to:
http://www.myadvocatespain.com
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