Inheritance in Spain

 As long as we persevere and endure, we can get anything we want.
(Mike Tyson)

FIRST AND FOREMOST

 

First of all you must obtain a death certificate, which will be available in the Civil Registry in the place where the death occurred.

Please take into account that if the death occurred in a hospital, it will be registered in the Civil Registry of the city where the hospital is located.

You can ask for for a free certificate from the website of the Spanish Ministry of Justice . It will be delivered free by post to the address provided. It is advisable to request more than one copy.

On the online form, there are some questions asked that you almost certainly won’t be able to answer, such as the volume or page where the death is inscribed. Just fill the space with a “0” if you don’t have the answer and continue.

Once the Death Certificate has been obtained, you should also ask for a Certificate from the “Registro General de Actos de Ultima Voluntad” (Last Will Registry).

You can also ask for this certificate on-line using this link . A tax of 3.70 € must be paid for this certificate.

The Last Will Registry, will not have the deceased’s last will, but it will have the name of the notary who has custody of it. The certificate is necessary even when the name of the notary with whom the last will was made is known because the date on it also serves to confirm that it really is the last will.

With both certificates, Death and Last Will Registry, an interested party (inheritor, legatee or others) can obtain a copy from the notary where the Last Will had been made or is currently held.

If the notary office is no longer open ( because the notary has moved to another city, or retired, etc), the “Colegio Notarial” will advise you which notary now has custody of the documents (Protocolo) of the original notary who authorized the Last Will.

For international inheritance within the EU, the Certificado Sucesorio Europeo should be considered

If there is a last will

The wishes of the testator, contained in his or her last will and testament, is the law of the inheritance, provided it complies with certain limitations such as those established by the reserved share regime or the limitation on the number of successive successors and therefore in the ordering of Trusts.

In the last will, the testator can determine the distribution of the inheritance and the liability for any debts in two ways, by appointing an inheritor and/or a legatee.

The inheritor is a successor, in which the legal personality of the deceased will continue. So the inheritor succeeds in the ownership of the assets which are not specifically bequeathed and assumes the responsibilities and obligations of the deceased (Liability on the deceased’s debts ). Ownership and liability will be shared jointly by inheritors, as the testator states in the will.

The testator can predict that the named inheritor will not actually exist, or will not be capable of inheriting, or will reject the inheritance, and therefore name a substitute.

If there is no substitute named and two or more inheritors are named without any distinction between shares, or by equal shares, or by any other expression which does not imply a particular share or particular assets, the right of accretion will take effect and the inheritors who can and do accept the inheritance will acquire the shares of those who can not or those who reject the inheritance.

As the will of the testator is the law of the inheritance, the testator can order the application of the right of accretion in preference to the named substitute.

Finally, if there is a last will, but no inheritor named in it, or the named inheritor rejects the inheritance, is unable to succeed or doesn’t exist at the time of the opening of the inheritance , and if there is no right of accretion, the inheritor will be the legal inheritor.

If there is no Last Will

If no Last Will has been made, the inheritance will fall to the legal inheritor.

The legal inheritance will be opened if:

There is no Last Will.

There is a Last Will but an inheritor has not been appointed in it.

There is a Last Will but the inheritor:

Rejects the succession.

Is unable to inherit.

Does not exist at the time of the opening of the succession.

Does not fulfill the condition demanded by the testator to inherit unless there is a substitute named as inheritor or the the right of accretion takes place.

In all these cases, the heir will be the legal inheritor, without prejudicing the succession rights of the surviving spouse, that are always in usufructo

The legal inheritor will be called in the following order:

1.-Descendants

2.-Ascendants

3.-Widow or Widower

4.-Siblings and children of Siblings

5.- The rest of the collaterals up to the fourth grade and finally the State

This order of categories determines the heir.

For inheritance purposes the concept of grade and line is important.

In Spain there are different regulations regarding successions in Galicia, Basque Country, Navarra, Aragón, Cataluña and Balearic Islands Legislaciones Forales that will be applied to Spaniards with the corresponding “vecindad civil” and also to the inheritance of foreign nationals who did not make a choice of law and whose last habitual residence was in one of these territories.

Liability on the debts of the deceased

If the inheritance is going to be ruled by Spanish law, it is important to take into account that the inheritor ( not the legatee) will succeed to all the assets and obligations of the deceased, will assume the responsibilities and obligations of the deceased, and will therefore be liable to pay any outstanding debts not only with the inherited assets but also with his or her own assets.

To inherit is not an obligation, so it is possible to reject the inheritance. If the inheritance is rejected by the first named inheritor, the substitute named by the testator in his or her will will be called. By such a rejection or due to incapacity or non-existence of this substitute, and if there is no right of accretion, the legal inheritors will be called.

It is also possible to accept the inheritance in a proceeding aimed to limit the liability for the deceased’s debts with the so named “ beneficio de inventario” and there are some specialities in the declaration concerning the acceptance or waiver, which are explained here in international succession.

Accepting or not is an important issue with special requirements if there are minors or disabled people involved in the inheritance.

If you are named as a legatee everything changes. The legatee is an acquirer, not a successor, so there is no obligation or liability for the deceased’s debts. These debts can mean the disappearance of the estate’s assets because creditors have preference over both inheritors and legatees, but the legatee isn’t personally responsible so his or her own assets are not at risk.

For this reason, it is not necessary to formally accept the legacy. The property of the deceased’s assets which were specifically bequeathed to the legatee will be transferred directly to the beneficiary, ministerio legis, upon the opening of the inheritance. Of course, the legatee can reject the bequeathed legacy, but formal acceptance is not necessary in order to acquire the property.