SPANISH PROBATE EXPLAINED
APPLICABLE LAW IN A SUCCESSION HAPPENING IN THE KINGDOM OF SPAIN
Under the current European Succession law* if a deceased had his habitual residence in Spain the law applicable to his inheritance will be the Spanish succession law, unless the deceased established otherwise through a will.
This means that Spanish law will determine both WHO are someone´s heirs and WHAT each heir will inherit.
Now, “habitual residence” does not imply necessarily “official” residence. Also, if you are hopping between countries and have stronger ties with your country of origin a case could be made that Spanish law should not apply to your succession.
During your lifetime you are free to choose what country law will apply when you die by doing a will before a notary. Hence, getting informed about how each country treats a succession is paramount.
UNDER SPANISH SUCCESION LAW WHO INHERITS AND WHAT ?
If Spanish law is the one applicable because you had your residence in Spain or established so in a will, you must know that 2/3 of your estate will go to your descendants and YOU CANNOT SAY OTHERWISE IN YOUR WILL.
This is how your estate will be inherited if you leave a spouse and kids (or grandchildren from a deceased son or daughter):
-1/3 of your estate will be divided equally among your kids.
-1/3 A second third of your estate you can distribute (in your will) however you want among your kids (meaning you can give this second lot fully to either one of your kids or distribute it unevenly among your kids, but you are not forced by law to divided equally such as in the first lot. The constraint with this second lot is that it must land with your kid(s); you cannot devise or bequeath to a brother or a friend…
-1/3 The last third of your estate you as testator are free to dispose to whomever you wish.
If you do not divide equally in value these 3 lots it could be contested by any heir.
Your widow/widower spouse, if there are children, will receive the usufruct (the right to use and enjoy but not own) of the second third mentioned above.
PROCEDURE
Unless you are a sole heir you will need to seize a notary to establish the inheritance and inherit under your name your share.
You will have to deal with legalisation of documents, translations, etc before going to the notary either by yourself, if you have time, or resorting to an international lawyer.
After the notary ascertains the validity of your will, or in the absence of a will, who are the heirs under what country’s succession law, your lawyer will have to file the corresponding estate taxes and change of ownership taxes (plusvalía). Also it is up to you or your lawyer to close the account of the deceased or dispose/sell any estate in Spain and file thereafter the corresponding taxes.
DOCUMENTS
If the deceased had estate in the Kingdom of Spain the heirs must gather at least the following documents:
- Death certificate
- Will (if any)
- Birth certificates of descendants, marriage certificate
- If a notary or court in the country of origin has being seized and has granted probate you will need this original document, legalised
Deadline to file and pay for inheritance taxes: 6 months after the death (you can apply for an extension)
TAX EXEMPTION FOR THE NEXT OF KIN IN SPAIN
Each Spanish Region has different probate taxes.
Andalucía:
The first 1.000.000€ of the estate are exempt (if the death occurred after 2021) for the descendants and the widow(er).
Valencia Region (provinces of Alicante, Valencia and Castellón):
The first 156.000€ are exempt up to 99% for the children of the deceased under 21 years
For children over 21 the exemption reaches 100.000 €.
POWER OF ATTORNEY
In any case, we can assist you with this by drafting the power of attorney regarding your international succession.
Should you want to hire us as your probate solicitor a power of attorney shall be granted to us, either abroad or in your home country, if you cannot come to Spain, or here in our Kingdom at any notary.
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*Regulation (EU) No 650/2012 of the European Parliament