By Roser Coll, Partner at Temis & Co
This article aims to provide a useful overview on dealing with estates that contain both Spanish and UK assets.
In addition to the death certificate, other paperwork required for executing inheritance in Spain includes:
Last Will and Testament in the UK
Last Will and Testament in Spain
Passport of the Deceased*
Passport of the Executor(s)
Passport of the Beneficiary(s)
Spanish Property Deeds
Grant of Probate (when available)
NIE Number (Tax Identification Number for Foreigners)
*If a passport isn’t available, any other document which identifies the Deceased is acceptable. Documents require a sworn Spanish translation and legalisation by the Hague Apostille.
The inheritance law in Spain foresees the list of beneficiaries below:
If the Deceased leaves descendants – children, adopted children, or grandchildren – and is also married, the spouse will inherit the life tenancy/usufructo of a third part of the estate, and the descendants will inherit the rest of the estate in equal shares between them.
If the Deceased leaves only ascendants – parents or grandparents – and a spouse but no descendants, the spouse will inherit the life tenancy/usufructo of 50% of the estate, and the parents will inherit the remaining.
In cases where the Deceased dies only with a spouse, without ascendants or descendants, the spouse inherits 100%. If there is no spouse, the collateral family will inherit: brothers, sisters, nieces, nephews, etc.
If the Deceased did not have a Will in place expressly mentioning the applicable law to the inheritance – chosen by the Testator/Testatrix –
according to European rules, the applicable law will be the law of the last habitual residence of the Deceased. Even though the United Kingdom stepped out of Europe under Brexit, this rule applies as long as a British national owns a property in Spain, as it is applicable Erga
Omnes.
For example, this means that if someone owns a property in Spain and passes away with their last habitual residence in Mallorca, the assets will be distributed based on the rules of Spanish intestacy law: the children will inherit the estate in equal shares and the spouse enjoys the life tenancy of 1/3 of such estate. Therefore, for British nationals who own property in Spain, it is highly advisable to make a Will referring only to Spanish assets, mentioning that the applicable law will be their national law – English law.
The advantage of English law in comparison to Spanish law is that it gives free disposal of assets and does not contemplate compulsory heirs, as opposed to Spanish Law.
The beneficiaries will pay Inheritance Tax once they inherit assets located in Spain and have six months from the date of death to do so. If the tax is not paid, surcharge interests and a fine shall be applied. The Inheritance Tax rate paid by British nationals is the same as the Inheritance Tax rate paid by residents in Spain. Inheritance Tax is regulated by the Autonomous Community where the property is located, and any reductions and bonuses applicable to the residents of that particular Autonomous Community shall also apply to British nationals.
In addition to Inheritance Tax, the heirs shall pay a local Tax called “Plusvalía Tax” based on the increase in value of the land from the day the Deceased acquired the property up to the date of the death. This tax is filed before the town hall of the city where the property is located.
In order to file the taxes, the Executors and beneficiaries will need to apply for an NIE number (Tax Identification Number for Foreigners). As the NIE number is usually requested in Spain, the Executors and the beneficiaries will sign a bilingual Power of Attorney before a Notary in the UK, so they can authorise their counsel in Spain to deal with their NIE.
Notary fees: approx. 1.000-1.500 euros
Registry fees: approx. 800 euros
Bilingual Power of Attorney: approx. 250 euros
Translation and legalisation of documents: approx. 300 euros
Legal fees: Temis & Co offers a fixed fee depending on the value of the estate, the number of beneficiaries, and the Executors involved.
This article is featured in the spring 2023 edition of the quarterly news digest, Entitlement. Click the image below to download your free copy of Entitlement for more informative articles.