How to Inherit and Grant Testament in Spain

Inheritance Laws in Spain

An inheritance includes all assets, rights, and obligations of a person that do not disappear with his/her death. By referring to “obligations”, we mean that we do not only inherit the estate, but also any debts that the deceased person may have had at the time of his/her death. Therefore, it is convenient for the heirs to know prior to accepting the inheritance whether or not the actual inheritance assets (that is, the combination of both assets and rights) exceed the liabilities (the debts). The reason is that —in the event that the amount of the testator´s debts is higher than the value of the assets— heirs shall be liable for repaying those with their own personal wealth.

However, no one is under a legal obligation to accept an inheritance. It is a free and voluntary act. In this sense, those who may be entitled to inherit can choose one of the three following options:

1. Accept the inheritance without any condition.

2. Accept the inheritance for the benefit of inventory.

3. Refuse the inheritance.

Liability for Inheritance Debts

Acceptance for the benefit of inventory is a legal right granted to anyone eligible to inherit (note that they cannot be called heirs until they accept the inheritance). By virtue of this right, the interested party is exempted from paying any and all debts of the deceased that exceed the value of the total inheritance. In other words, their responsibility will be limited to the payment of debts up to the amount the assets included in the inheritance can cover. This way, their own assets will always be protected.

Of course, if the deceased individual had granted a will in life, the distribution of his/her estate will be carried out according to his/her wishes.

However, if the deceased individual did not grant a will, the Spanish inheritance law states that those entitled to inherit will be (in strict order):

– The descendants (children, grandchildren, and so on)

– The ancestors (parents and grandparents)

– The spouse

– Siblings and nephews and nieces

– Collaterals up to the fourth degree

– The Spanish State

When an Inheritance is Not Accepted Nor Disclaimed

It may also happen that one of those who have the right to inherit neither accepts the inheritance nor refuses it. This kind of scenario is called “unsettled inheritance”. The main consequence of this state of hesitation is that those heirs who have indeed accepted the inheritance will not be able to split it and receive their share. In this event, those affected can visit a notary public for him/her to “unblock” the issue to a certain extent.

Another usual case is when the deceased person did not make a will, and his/her heirs cannot reach an agreement on how to distribute the assets. The only way to solve a situation like this is to request that the inheritance distribution is carried out by court order. The court authorized to do so will be the one in the district where the deceased had his/her last residence. If he/she was a foreign citizen, the heir who files a lawsuit may be able to choose between the court assigned to the deceased person’s last Spanish residence,  or that assigned to the location where he/she had most of his/her estate.

Law Applicable to the Succession

At this point, we will answer one of the most frequently asked questions regarding international inheritances. When a foreign citizen who resides in Spain dies, what law is applied? The law of his/her country of nationality, or the law of his/her country of residence, that is, Spanish law?

The answer is easy. Once Regulation 650/2012 of the European Parliament and the Council of July 4, 2012 was passed, in general terms, the law of the country where the deceased person was residing at the time of death shall apply, unless the deceased individual had expressed in his/her will that inheritance proceedings should be governed by the law of the country of which he/she was a citizen at the time of death.

For example, let´s imagine an Irish male citizen who resides in Málaga (Spain) dies without a will. The law that shall govern his inheritance process will be Spanish law, because Spain was the country where he was living permanently at the time of death. Let us now imagine that that same person made a will in which he expressed his wish that the applicable law to the inheritance be that of his country of nationality. In that case, Irish law would apply, because he was an Irish citizen when he died.

Acceptance and Adjudication Procedure

With regards to the inheritance acceptance and adjudication procedure, the steps that must be followed are, in general, the following:

1. Obtaining the death certificate.

2. Finding out whether or not the deceased person had a will. To this end, the interested party shall request a certificate of last will to the relevant registry within the Spanish Department of Justice.

In the event that there is a will, an authorized copy of this document must be obtained in order to know how the deceased arranged the distribution of his/her assets, and who are those entitled to inherit. In the event that there is no will, a declaration of heirs will be needed.

3. Writing an inventory of goods, rights, and debts, and assigning a value to each one of them.

4. Distributing and awarding the totality of the estate.

Distribution and awarding of the assets can be done by means of a private document. However, if the inheritance includes any real estate assets, it is advisable to conduct the distribution and awarding process before a notary public, by means of a title deed. Otherwise, there will be no possibility to record the new heir´s ownership in the Land Registry, with the subsequent loss of all guarantees that an official registration offers to owners.

5. Paying any relevant taxes (Inheritance Tax and Plusvalía).

There is a six month deadline to carry out this procedure, starting from the date of death. However, this time period can be extended for up to one year. Tax payment is mandatory, regardless of whether or not the inheritance deed is granted within that six-month period.

We conclude this summary by emphasizing the high level of legal and technical complexity of Inheritance Law, and the wide variety of cases it presents. In addition to purely material issues, personal interpretations often come into play, which in most cases complicates the situation even more, unfortunately. Thus, it is highly recommended to always rely on the assistance and expertise of a lawyer well versed in these topics.

Likewise, it is also advisable to decide in life how our assets are to be distributed when the time comes. It is not an enjoyable topic for anyone, but we know from experience that it can later save a great deal of upsets to those enduring the loss of a loved one.

Signing a will is a straightforward and inexpensive procedure, and provisions made are not set in stone –they can be easily changed at any time thereafter. If you so wish, at Real(i)ty & Law, we can help you prepare this document, and even write a two-column draft for you to sign the will in Spanish and English, before a Notary Public here in Málaga, in the event you are a foreign citizen.


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