Posted in: Family Law, Legal, Wills and Testaments
When someone dies either resident in Spain or non-resident, thinking about probates and inheritances is not a priority issue clearly. A family is grieving understandably and there are many other things to deal with. Also for anyone based outside of Spain, the issue can appear complicated. Especially in these times.
When possible however, a Spanish probate should be done. It is important to realise firstly that property assets do not go automatically to joint owners, such as in the UK and Ireland. They have to be transferred by a probate process. Secondly, if there is inheritance tax to be paid, and this varies depending on the circumstances then this has to be paid within six months of the date of death. Lastly, we would mention that probates have to be done in different countries. So a Spanish probate for Spanish assets only.
Who is/are the heirs? This depends on the Last Testament or Will of the deceased, and there preferably should be a Spanish Will. It also depends on the nationality of the deceased, as some countries (like Spain) have enforced heirs. Thus a lawyer needs first to check if there is a Spanish Will, and review the last one, and to consider nationality.
A very common question we receive is how much inheritance tax will my spouse/children pay when I die? This is very hard to answer. We can give the amount as at now, as we know what the law and tax allowances are for each region (we can deal with probates all over Spain). However, this can change and is likely to very soon in the Valencian region where the government have announced their intention to erase or reduce tax free allowances. So we cannot predict the future. Inheritance tax though is based on the relationship between the deceased and the inheritor/s. It also depends in which region the assets are located. Plusvalía (town hall tax) is also payable and this can vary from municipality to municipality.
We can calculate the inheritance tax due to be paid when someone dies (and it should be paid within 6 months from date of death) with the details of the assets located in Spain.
Many clients say to us why can’t the home country probate, say from UK, cover Spain. It cannot because it is a different legal jurisdiction. To transfer assets through a probate deed to an inheritor, we have to prove the inheritor (s). This is firstly by any Spanish Testament or Spanish Will. If no Spanish Will, then by a Grant of Probate from their home country. This must have a Hague Apostille as it is being used in another country. If there is no Will in any country then we need Letters of Administration, which prove who will administer the Estate to the next of kin according to the rules of their nationality.
When someone dies in Spain the assets stay in their name until transferred to the inheritor (s) by a probate or inheritance deed. A property cannot be sold until this is done (although sometimes it can be marketed simultaneously). Inheritance tax has to be paid before the assets can be sold or transferred. Once the probate deed has been signed at the Notary, if there is a property the deed will have to go to the Land Registry and Tax office, so it will be around 1-2 months before the documentation is back that the Bank will require.
Even if the family is unable to come to Spain, when there are assets in Spain, this is a process which should be started fairly quickly. A good law firm will guide you through the steps, clearly and explaining. Communication is key as always with a probate and inheritance. Costs for the lawyer should not vary considerably between firms, the other costs should always be detailed fully. We provide a breakdown of each item. Remember that nothing happens automatically, it needs someone to start the process and then everything can be sorted out. If we can help you with the Spanish assets of someone who has died, with an inheritance or probate, please let us know.