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Applicable Inheritance Law to Estate Located in Spain

Antonio Flores
16th of April 2004



Note: This article is out of date. For an updated legal opinion on this matter, I refer to the post Free Testamentary Disposition for UK Citizens: Only if You Own Property in the UK , which includes the latest Supreme Court opinion on inheritance laws applicable to a British testator, resident of Spain, that dies without having real estate in the UK.

The significant number of foreigner owners of property in Spain and what happens to their property after their death has caused some debate in the past, in particular where law in the testator’s home country and Spanish law have conflicting dispositions.

This is of great relevance for property owners as Spanish inheritance rules specify that a part of the inheritance (two thirds of it) will have to be offered to the so-called compulsory inheritors, which are primarily children and spouse and who may not be the preferred choice of the testator.

What the Spanish Civil Code Says


Under Article 9.8 of the preliminary title to the Spanish Civil Code, succession to all property, whether movable or immovable and wherever situated is determined by the law of the deceased’s nationality. In addition to this, the personal law of natural persons shall be that determined by their nationality, and will as well govern capacity and civil status, family rights and duties and succession by reason of death.

By remitting the matter to a foreign law Spanish legislators´, intentions were to protect as much as possible the cultures and traditions embodied in foreign legislations governing their nationals. There seems to be no room for misinterpretations and confusion, but one cannot say this is straightforward for UK citizens, who precisely conform the biggest foreign community in Spain.


English Law versus Spanish Law


By applying the above Spanish disposition English law takes relevance but to the surprise of many, it conversely stipulates that for property located abroad it will be the laws where the property is located which are to be applied.

This legal situation, known as double remission (´reenvio de retorno´ in Spanish), has caused many to litigate endlessly in Spanish courts (Denney v. Denney-Royde-Smith Case/ Supreme Court judgment 21 May 1999), as well as in Uk Courts (Adams Case/ Sentence of the High Court of Justice Chancery Division, Vice Chancellor Court, 31 July 1985), thus creating legal uncertainty in many thousands of British property owners when filling out their will questionnaires before their lawyers. By virtue of the above rulings, however, the situation was to be clarified to the effect that the remission of Spanish law was to be only to the UK domestic law and not to their conflict of law rules which would invariably refer back to the Spanish restrictive inheritance rules.


Freedom of testamentary disposition for UK nationals and wills done in Spain


The guiding principle of English law on the subject of succession is the freedom to make a will, which is a declaration of the freedom to determine ones own wishes for after death (certain reservations are applicable in case of a situation of intestate death). This interpretation is now prevalent and is uniformly accepted in Spain, allowing British property owners to avoid the appointment of forcible heirs and eliminating the likelihood of the testament being challenged by forcible heirs under Spanish law.
The most popular form of will in Spain, the so called ´open will´, signed before a Notary Public, is the most recommended format to give to the will as it is directly enforceable without the requirement of grant of probate. The contents of the will are printed out in notarial paper, observing certain solemnities so far as respects the execution and attestation of it, and will be signed in the presence of any Spanish Notary Public. This will can be made in a double barrel column format, in English and Spanish.

Finally, when deciding on the disposition of one’s asset it will important to take into account certain parameters in order to minimise the inheritance tax liability. Without prejudice to the proposed elimination of inheritance tax between relatives in some autonomous regions in Spain, consideration will have to be given to the following: age of inheritor, relationship of inheritor with testator, pre-existing wealth of inheritor, fiscal residency status of inheritor, status of habitual domicile of property being bequeathed and number of inheritors.

Conclusion


British property owners are free to determine who their heirs will be and avoid the appointment of forcible heirs, by means of a valid Will. Although foreign wills are valid in Spanish inheritance cases, it is always recommendable to draw up a Spanish will before a Notary public, to ease the inheritance process for our beloved ones upon our death.
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Discuss this Article

  • James Says:

    My father and mother were jointly named on a propety in Spain currently worth 130,00 euros. My father recently died. Can anyone tell me how much inheritrence tax my mother will have to pay? My father had a spanish will that left everything to my mother. Thanks
  • sylvia Says:

    my mother left her home in her will in Spain cadiz, will i have to pay inheritance tax even i am her daughter?
  • Lawbird Lawyer Says:

    Dear Madam, Yes you are personally liable to pay Spanish Inheritance Tax. However there are applicable tax allowances if you are resident in Andalucía which may bring the tax bill to zero: Spanish Inheritance Tax: Advantages of Making a Will in Spain - 3rd September 2009 As an example, such would be the case of Inheritance Tax in Andalucía in which beneficiaries, resulting from a death occurred after the 7th of June 2008, may benefit from the following regional tax allowances: •Reduction of 99.99% in the IHT taxable base on inheriting the family home (deaths occurred since the 1st January 2003). This requires the beneficiaries being resident in Andalucía. •Reduction of 99% in the IHT taxable base on those inheriting a business providing certain conditions are met. •No IHT paid on theeEstate itself on compliance with certain requirements (i.e. inheritance taxable base < €175,000, heirs are next of kin or spouse, heirs pre-existing wealth < €402,678.11). •No IHT paid by physically handicapped (disability above 33%) with a taxable base < €250,000. Yours faithfully, Raymundo Larraín Nesbitt Yours faithfully,
  • ryan Says:

    my father is living in spain married to his third wife he is aged 83 and not in good health we do not have much contact with him and were wondering what would happen when he does die and how to sort everything out can you help please
  • ryan Says:

    my father is living in spain married to his third wife he is aged 83 and not in good health we do not have much contact with him and were wondering what would happen when he does die and how to sort everything out can you help please
  • Lawbird Lawyer Says:

    Dear Ryan That will pretty much depend on to whom does your father bequeaths his Spanish estate to. British and Irish citizens, in accordance with their own national laws, have free testamentary disposition meaning they can bequeath their estate to whomever they please without being constrained by forced hership rules that apply to Spanish nationals. This is the general rule. Notwithstanding the above general rule, the fine nuances that spice up life can be found in this blog post: • Free Testamentary Disposition for UK Citizens: Only if You Own Property in the UK - 22nd October 2008 Yours sincerely Raymundo Larraín Nesbitt
  • James Says:

    Hi, My father passed away earlier this year, leaving behind a huge fortune in the uk, to his 2nd wife who has now as suspected done a runner having got him to change his will from his hospital bed. My last hope as his only son and heir is his property in Spain. worth in the region of 2,000,000 euros. How to I go about viewing his Spanish will if he drew one up, and in turn how can i make a claim on the property if forcible heir inheritance law can be applied?
  • lawbird Says:

    Hi James, In Spain, there is a registry that can be searched for in order to find out whether your father has granted any Spanish Wills before a Public Notary in the last few decades. If this was so, we could then obtain a copy of this will from the Notary and have this reviewed in order to ascertain your entitlement. Whether Spanish or English Law applies to your case, will depend on the particular circumstances and facts. Spanish Law establishes that the Applicable Law to the distribution of the estate is determined by the nationality of the deceased. However, there are certain circumstances under which Spanish Law can and will apply nonetheless. Our "Estate transfer to heirs" service includes: * Requesting of copies of the Death Certificate, in the event that the death took place in Spain. * Requesting of a Will Certificate information and location from the Central Registry of Wills in Madrid. * Obtaining of the Will from the Notary Public where it was signed / Estate Heirs Statement (in those cases where there is no will) * Inheritance Acceptance * Partition of the inheritance according to what the will states, or, where there is now will, to the desires of the inheritors . * Inscription at the Land Registry of the new owners of the Estate inherited. * Arrangement of payment of the applicable Inheritance Tax. Should you wish to make contact with my firm and obtain a quote for our service, please do not hesitate to contact us via this link: http://www.lawbird.com/services/contact Kind regards,
  • Kimmie Says:

    My parents are UK nationals, who sold their home to buy a property in Spain. After a family feud we have lost contact and they moved. My sister is in touch but refuses to give us their details. I have just been told my mother passed away a week ago and was cremated. No other details. I don't believe she would have made a will. How do I find out a copy of death certificate, and would my brother and I be eligible to claim an interest as a sibling. All help appreciated in this hard time. Thank you.
  • Jason Churchill Says:

    My father died in spain in 2009 my step mother cremated him without telling his sons, she has claimed all his assets even though they had been parted for four years not legally though, his villa was in both there names i think, is there anything i can do to find out if im entitled to anything, i dont even know if there was a will made?
  • Patricia Says:

    Dear Mr. Churchill, The first step is to find out if your father had made a will in Spain. This is an easy process as a consultation is made at the central registry of last wills. Once you know if he had a will, if he was a resident in Spain and if he had assets out of Spain, you will know what the inheritance Law of application is. In the event the British Law applied ( if he had properties in UK ), a solicitor in the UK would determine if you had any right over the Spanish properties. If the Spanish Law had to be applied instead, you could claim half of the Spanish villa, as children are legitimate and forced heirs in Spain. Our advice is that you hire the services of a solicitor that can help you deal with the transfer of the inherited estate in Spain, as he will be able to make all the proceedings in your behalf and contest the will in case it was necessary. We offer that type of assistance at Lawbird, so please feel free to send an e-mail to my attention should you wish to receive more specific information. Regards,
  • Felix Says:

    Hello - my mother lived in Spain the last 6 years of her life. She had a separate Spanish will for her Spanish assets (all regulated now) and an English will for her UK estate consisting of movable goods (pension, bank etc). The Executor who was the family lawyer has spent over a year worrying over whether she was therefore domicile in Spain meaning her English will is valid and should be regulated under Spanish law. As my mother died 18 months ago and he decided the domicile was an issue over a year ago, you can imagine I want closure on all of this. I and others have drafted statements stating that she had nerver ruled out a return to the UK but his advisor, John Maddocks of Lester Aldridge does not seem satisfied that a judge will grant probate. Frankly, I think the two of them are quite incompetent. Any advice on what I should do to progress this matter? Thanks and best wishes, Felix
  • Patricia Says:

    Hello Felix, I hope it is not too late to offer you an answer. I recommend you not to mix both processes, thus firstly processing the Inherited assets transfer in the UK for those assets located there, in accordance to British Law and then do the same for the Spanish assets, that is, use the Spanish Will and apply the Spanish Law in accordance to the instructions in the Spanish Will in relation to the Estate located in Spain. If you wish to discuss in detail the process taking place in Spain, please contact me by email ( click on my profile ). Regards,
  • Peter caldwell Says:

    My wife past away last year.our Spanish wills left the property to me as sole executor and beneficiary Do I have to pay any tax? Or change the will Thanks P caldwell
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