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Inheritance in Spain where there is a will

A guide to inheriting assets in Spain where the deceased left a will
Transcript: 

Hi.  I’m Jonathan Eshkeri, an English solicitor and Spanish abogado.  I practise law in England and in Spain, with offices in London and in Tarragona, just south of Barcelona.

You may have experience of dealing with the administration of the estate of someone who’s died in your own country.  You may have been a beneficiary of an estate, or perhaps you were the executor or the administrator of the estate.  If so, you’ll know that the process can be time consuming and in certain respects complex, particularly in relation to inheritance tax.  

In any event, whatever your experience of such matters to date, you may’ve heard that dealing with the administration of a Spanish estate is even more time consuming, complex and expensive than the same process would be at home.  It stands to reason that if you’re dealing with questions of law that straddle two countries at least, and the documentation to be prepared is in a language that you don’t master, not to mention the difficulty of communicating with the authorities in a country the language of which you don’t speak fluently, the process is going to be that much more confusing and difficult to see through without the assistance of an experienced specialist in the field.  

If for example you are the beneficiary of an estate with assets in Spain, you’ll be in one of two situations.  Either the deceased will have made a Will, in which case you’ll have been named in the Will, or the deceased will not have made a Will, in which case you’ll be a close family member of the deceased.  

The process of inheriting in Spain where the deceased has made a Will

In this video I’ll talk you through the main aspects of handling the administration of a death estate when the deceased did make a Will.  We refer to someone who has left gifts in a Will a testator. I shall use the example of a British citizen from Birmingham who made a Spanish Will in October 2015 and had been living in Alicante, Spain for ten years when he died in December 2015.  When he died he owned a house and a car in Alicante and had some money in bank accounts there.  These assets are now called the estate assets. He left half of his Spanish estate assets to his three children in equal shares, and the other half to a major UK charity.  

Determining which law applies to the estate

In August 2015 a European Regulation came into effect, which in essence determines that if you don’t choose the law that is to apply to your estate when you die, the applicable law will be the law of the country in which you are habitually resident.  If Spanish law is the applicable law, then forced heirship rules will apply.  That means that certain members of your family will have a right to a part of your estate, whoever may be the named beneficiaries.  However, if you are not Spanish and according to the law of your country of nationality you have what we call freedom of testamentary disposition, you can state in your Will that you want that law to apply, in which case you will be able to leave your Spanish assets to whomever you wish.  There is always the risk that a family member may challenge a Will, but there is absolutely nothing that you can do about that.

Accepting the inheritance in Spain

In my example the three children of the deceased and the UK charity will want to take the necessary steps to be able to realise the estate assets, that is to receive in the currency of their choice the value of the estate corresponding to their share.  The way to achieve that is by accepting the inheritance.  Unlike the position according to English law where upon the death of the testator the legal interest in the estate assets vests in the Executor and the beneficial interest vests in the beneficiaries, according to Spanish law the beneficiaries do not have any rights of ownership until they accept the inheritance.  The acceptance of inheritance document identifies the beneficiaries, or the people acting on their behalf, and it identifies the assets to be inherited and the proportion in which the assets are to be inherited by the beneficiaries.  It is open to the beneficiaries not to accept the inheritance, or to renounce the inheritance.  They may do that where, for example, the testator died owing a lot of money to third parties.  The beneficiaries will inherit any debts of which they are aware, and perhaps some of which they are not aware depending upon the circumstances and the way in which the estate is administered.  It simply may not make sense to accept the inheritance as a whole and Spanish law does not allow for it to be accepted in part.

Realising the assets in Spain

Once the acceptance of inheritance has been signed, which requires documentation to be prepared and signed before a Spanish Notary, any inheritance tax payable will be paid, and the property in Alicante will be transferred into the names of the beneficiaries.  In my previous example half of the property will be registered in the name of the UK charity, and one sixth of the property will be registered in the name of each of the three children.  The funds in the bank accounts will be divided between the beneficiaries in the same proportions.  The car will be sold and the proceeds of sale distributed in the same way.

Next steps

If you’d like advice and assistance with administering a Spanish estate, or if you have any queries that this video message hasn’t answered, please do be in touch with me by email or by telephone.  The information can be found on our website, www.solicitorsinspain.com.  Thanks for watching.

Testimonials

The communication was excellent. Stacey handled my case from the UK brilliantly, never missing a phone call or email without a timely reply. It was a daunting matter for me but I was always put at ease that all was in hand and that E&G Solicitors in Spain knew what they were doing throughout the process. I wouldn't hesitate to recommend or use E&G Solicitors in Spain again.

Mike Stone, Bristol