Have you inherited property in Spain and do not know where to start? Are you worried that you will not be able to handle all the necessary bureaucratic procedures? This guide is designed specifically to walk you, step by step, through all the stages of inheriting property, whether it is movable or immovable, from verifying the existence of a will, to paying taxes, to dividing the assets among the heirs.
In this guide, we will explain:
● how to obtain the death certificate and how to search the General Registry of Acts of Last Will to verify if a will exists;
● how to accept or renounce the inheritance, showing you the respective implications and how to obtain the necessary documents;
● how to pay inheritance tax, also illustrating rates, deadlines and payment methods
● how to divide the inheritance among the heirs with practical advice;
● who to contact in case of doubts or difficulties to obtain legal and tax assistance.
As you will understand, therefore, to ensure a correct succession it is essential to follow a series of steps and fulfilments: in the following paragraphs you will find what to do, step by step, when you inherit a property in Spain.
Opening of the succession
As in Italy, also in Spain if a person (which we will call below de cuius and/or deceased) should die, a procedure called “succession” is opened towards the heirs.
The opening of the succession, in civil law, is a fundamental concept that indicates the moment in which the process of transmission of the assets of a deceased person to his heirs begins.
This moment is crucial because it determines the emergence of various legal issues, including:
● identification of successors: the opening of the succession makes the call to the inheritance current, i.e. the right of the successors to take over the assets of the deceased;
● deferral of inheritance: the deferral is the offer of the inheritance to the successors, who can accept it or renounce it;
● hereditary vocation: the hereditary vocation is the title by which a subject is called to succeed, which can be by law (legitimate succession) or by will (testamentary succession);
● time limits: the opening of the succession triggers several important deadlines, such as the deadline to accept or renounce the inheritance, to submit the inheritance tax return and for other tax obligations.
Verifying if a will exists
The first step is to verify if the deceased has left a will. According to Spanish law, the will is a legal act through which a person (the testator) disposes of their assets and rights after their death and must have the following characteristics:
● unilateral: it is the declaration of will of only one person, the testator;
● personal: it cannot be delegated to third parties – the testator must express their will in first person;
● revocable: the testator can modify or cancel the will at any time, until their death;
● formal: it must comply with certain formal requirements established by law to be valid.
Spanish law provides for different types of wills, which are distinguished by their characteristics and formalities:
● holographic will: it is written by hand and signed by the testator. It has the advantage of being simple to make, but requires special care for its preservation and validity;
● open will: the testator declares their will before a Notary and witnesses. The Notary keeps it and registers it in the General Registry of Acts of Last Will;
● closed will: the testator delivers to the Notary a sealed document containing their last wishes, without revealing its content. The Notary keeps it and registers it in the Registry;
● special wills: special forms of will are provided for specific situations, such as the military, maritime or foreign will.
To verify the existence of a will, it is necessary to follow some detailed steps below:
Death certificate
The first step is to obtain the death certificate of the person. This document is essential to initiate any testamentary search and can be requested at the Civil Registry of the place where the death occurred.
General Registry of Acts of Last Will
In Spain, there is a General Registry of Acts of Last Will (Registro General de Actos de Última Voluntad) where all wills are registered. To obtain information, it is necessary to request a certificate of last wills (certificado de últimas voluntades) from this Registry. The request can be submitted online or in person at the competent offices: https://www.mjusticia.gob.es/es/ciudadania/tramites/certificado-actos-ultima
Information provided in the certificate
The certificate will indicate whether the person has left a will and, if so, the type of will (holographic, open or closed) and the notary with whom it was filed. If the will is holographic, it may be necessary to undertake further research to locate it.
Requesting a copy of the will
Once the certificate has been obtained, if it appears that a will exists, it is possible to request a certified copy from the notary indicated in the certificate. If the notary has died or ceased operations, the copy can be requested from the competent Notarial Archive (Archivo Notarial).
Holographic Will
In the case of a holographic will, the search may be more complex, as it is not necessarily filed with a Notary. It may be useful to contact family members, friends or people close to the deceased to verify if they are aware of the existence of a holographic will.
Legal assistance
If the search for the will proves complex or if doubts arise about its validity, it is advisable to contact a lawyer specialized in inheritance law: a professional can help in the search for the will, its interpretation and any disputes.
Identifying the heirs
After verifying the existence or not of a will, it will be necessary to proceed with the identification of the heirs who will be those indicated in the will in case of testamentary succession, or the heirs indicated by law in case of legitimate succession.
Let’s see in detail below.
Testamentary succession (in the presence of a will)
Testamentary succession in Spain is mainly regulated by the Spanish Civil Code (Código Civil) and specific laws that may vary slightly depending on the Region (e.g., Catalonia, Galicia, Basque Country).
In the will, the testator disposes of their assets, indicating the beneficiaries after their death. However, Spanish law, like Italian law, provides for a legitimate share (legítima) in favour of certain heirs, so-called legitimate heirs (herederos legítimos), which cannot be violated by the testator.
Legitimate heirs cannot renounce the legitimate share before the death of the deceased; only later, the renunciation can be declared with a public deed (by the Notary or in Court); while the action to claim their legitimate share can be exercised by the interested parties within a term that varies from 15 to 30 years, depending on whether the rights are claimed on movable or immovable property.
Validity Requirements of a Will
The will is a fundamental tool to ensure that one’s wishes are respected after death and to avoid conflicts among successors. It is always advisable to contact a Notary or a Lawyer for the drafting of the will, to ensure its validity and compliance with the law.
Often unfortunately, especially in the case of a holographic will or a will issued at the point of death, we witness the drafting of wills that do not meet the legal requirements and, as such, are subject to challenge by interested third parties.
We recall that, for a will to be valid, certain requirements must be met:
● capacity of the testator: the testator must be of legal age and capable of understanding and willing at the time of drafting the will;
● free and conscious will: the will of the testator must be expressed freely, without coercion or deception;
● compliance with the forms provided by law: the will must be drafted and kept in accordance with the formalities provided for the specific type of will be chosen;
● lawful content: the testamentary provisions must comply with the law and not infringe the rights of third parties, such as legitimate heirs (spouse and children).
Challenging the will
The will can be challenged by anyone who has an interest (for example, legitimate heirs injured in their legitimate shares) if it does not meet the validity requirements (such as when the will of the testator is not free and conscious) or if the testamentary provisions are contrary to the law.
Legitimate succession (in the absence of a will)
In the absence of a will, Spanish law establishes the order of succession of legitimate heirs. It is important to identify all the heirs to start the succession process.
In general, the following principles apply:
● if the deceased was not married and had no children, the inheritance will be attributed to the parents, while if they are missing, it will be attributed to the brothers and sisters; in the absence of the latter, the inheritance will be attributed to the nephews, or in their absence to the cousins; if there is none of these relatives, the inheritance will be devolved to the State;
● if the deceased leaves children, but not the spouse, the inheritance will be attributed to the children, who will divide it in equal parts
● if the deceased leaves the spouse, but no children, the entire inheritance will be attributed to the spouse only in the absence of ascendants or descendants of the deceased
● if the deceased leaves both the spouse and the children, they will inherit in equal parts, while the spouse is entitled to the usufruct of 1/3 of the assets of the inheritance.
Accepting or renouncing the inheritance
At this point, it is crucial to understand whether it is appropriate to accept the inheritance or to renounce it. This is another important step not to be underestimated to avoid finding yourself in complicated and difficult situations to manage. Let’s see specifically.
Acceptance of the inheritance
The acceptance of the inheritance involves the acquisition of all the assets and rights of the deceased, but also their debts. The heir becomes responsible for the hereditary debts with their own assets, unless they have accepted the inheritance with the benefit of inventory.
The acceptance of the inheritance can be:
● express: it is carried out through a formal declaration before a Notary;
● tacit: it occurs when the heir performs acts that presuppose the will to accept the inheritance, such as selling an inherited asset or submitting the inheritance tax return.
Renunciation of the inheritance
The renunciation of the inheritance must always be express and formal. It is carried out through a declaration before a Notary. The renunciation of the inheritance involves the loss of any right to the inherited assets and the release from any liability for the debts of the deceased.
When is it advisable to renounce the inheritance?
The renunciation of the inheritance can be an appropriate choice in several situations, let’s see the most common:
● passive inheritance: when the debts of the deceased exceed the value of their assets. In this case, the acceptance of the inheritance would entail an economic damage for the heir, who would have to answer for the hereditary debts with their own assets;
● inheritance with assets of little value or difficult to manage: when the inherited assets are of little value, difficult to sell or manage (for example, a property in poor condition or a business in crisis);
● personal reasons: when the heir has no interest in receiving the inherited assets for personal reasons (for example, conflicts with other heirs or the will not to have ties with the family of the deceased);
● tax reasons: in some cases, the renunciation of the inheritance may be motivated by tax reasons, for example to avoid having to pay excessively high inheritance taxes.
Terms to accept or renounce the inheritance
The called to the inheritance has a term of thirty years to accept or renounce the inheritance. However, this term may be reduced by a Judge at the request of the interested parties (for example, the creditors of the deceased) or it can be activated at the request of the Spanish Tax Agency.
Revocation of the waiver
The waiver of the inheritance can be revoked within thirty days of its completion, provided that six months have not passed since the opening of the succession and the inheritance has not been accepted by other heirs.
Declaration of Inheritance
Another fundamental step to take is the Declaration of Inheritance (Declaración de Herederos), which is a necessary and mandatory document to formalize the acceptance of the inheritance and be able to divide it among the heirs.
How to make the Declaration of Inheritance
The Declaration of Inheritance is made before a Notary. The following documents must be presented:
● Death certificate of the deceased
● Identity documents of the heirs
● Family Book (Libro de Familia) or marriage certificate, if the deceased was married
● Birth certificate of the heirs
● Will (if it exists)
● Documents relating to the inherited assets (for example, cadastral maps for real estate).
The Notary draws up the act of Declaration of Inheritance, which must be signed by all the heirs.
Here is why the Notary is needed:
● formality of the act: Spanish law requires that the Declaration of Inheritance is a public deed, and only Notaries are authorized to draw up public deeds;
● identification of heirs: the Notary verifies the identity of the heirs and their relationship with the deceased, ensuring that they are the people entitled to receive the inheritance;
● acceptance of the inheritance: the Notary formalizes the acceptance of the inheritance by the heirs, which is a voluntary and irrevocable act;
● division of the inheritance: the Declaration of Inheritance is the basis for the division of the inherited assets among the heirs. The Notary can assist in this process, especially in case of disputes or difficulties;
● inheritance tax: the Declaration of Inheritance is a necessary document to be able to pay the related inheritance taxes.
When to make the Declaration of Inheritance
Since the inheritance tax law requires payment within six months of the date of death (extendable within the first five months), it is advisable to proceed with the inheritance declaration within the previous deadline.
How much does the Declaration of Inheritance cost
The cost of the Declaration of Inheritance varies depending on the amount of the inherited estate and its complexity. Generally, it is an expense that can vary from a few hundred to a few thousand euros.
What happens if the Declaration of Inheritance is not made
If the Declaration of Inheritance is not made within the prescribed deadlines, you may incur penalties and late payment interest. Furthermore, it may be more difficult to claim your inheritance rights in the future.
Paying Inheritance Tax
When you inherit property, movable or immovable, in Spain, you are required to pay Inheritance and Gift Tax (ISD). This is a complex tax, regulated at the state level but with broad autonomy left to the Autonomous Communities, which means that the amount to be paid can vary significantly depending on several factors.
Here are the factors that influence the amount of tax:
● value of inherited assets: the tax is calculated on the total value of the inherited assets, both movable (such as money, shares, jewellery) and immovable (such as houses, land);
● degree of kinship with the deceased: the closer the family relationship, the lower the taxes to be paid. Allowances and reductions are provided for spouse, children and close relatives;
● residence of the deceased and the heir: the region in which the deceased had their habitual residence influences the rate applied and any allowances. The residence of the heir can also have an impact;
● regulations of the Autonomous Community: each region has its own regulations on inheritance matters, with specific rates, reductions and allowances.
How the tax is calculated
The calculation of the inheritance tax involves three steps:
- The tax base is determined: the value of the inherited assets is calculated, net of any debts and expenses. The Spanish Tax Agency has its own criteria and valuations, so it is important to know them in order not to value assets below the tax value.
- The rate is applied: the rate varies depending on the factors mentioned above and can be progressive, i.e. increase as the value of the assets increases.
- Any reductions and allowances are applied: the regional regulations provide for various reductions and allowances, for example for close relatives, disabled people or for the purchase of the first home.
When and where to pay
The inheritance tax must be paid within six months from the date of death. It can be extended for another six months for a total of twelve, provided that the extension is requested within the first five months. The payment must be made at the competent office of the Tax Agency of the region in which the deceased had their residence.
Necessary documents
For the payment of the inheritance tax, several documents are required, including:
● Death certificate;
● Identity document of the heir;
● Copy of the will (if it exists);
● Inventory of inherited assets;
● Documentation relating to any reductions or allowances.
How to divide the inheritance among the heirs in Spain
The division of the inheritance is a crucial moment in the succession process, in which the assets of the deceased are divided among the heirs. Spanish law provides for different ways to carry out the division, which can be chosen according to the specific circumstances and the wishes of the heirs.
Options for the division of the inheritance
1. Testamentary division:
● If the deceased has left a will, the division of the inheritance must take place in accordance with the provisions contained therein.
● The testator may have established the shares due to each heir or may have appointed a third party (for example, an Executor and/or an Accountant/Valuer) to carry out the division.
2. Consensual division:
● In the absence of a will, or if the heirs prefer, the division can take place consensually, through an agreement between all the heirs.
● The agreement must be reached unanimously and may provide for the division of assets in kind (for example, by assigning a property to each heir) or the sale of assets and the division of the proceeds.
3. Judicial division:
● If it is not possible to reach an agreement between the heirs, the division may be requested from the Judge.
● The Judge, after evaluating the circumstances and the claims of each heir, will issue a judgment establishing the methods of division of the assets.
Practical advice
● Carefully evaluate the different options: the choice of the most suitable division method depends on several factors, such as the presence or absence of a will, the wishes of the heirs, the type and value of the inherited assets. It is important to carefully evaluate all available options before deciding.
● Seek an agreement between the heirs: the consensual division is the preferred solution, as it allows to avoid conflicts and to best satisfy the interests of all the heirs. It is advisable to seek an agreement through an open and constructive dialogue, possibly with the help of a mediator.
● Get assistance from a professional: the division of the inheritance can be a complex process, especially in the presence of valuable assets or disputes between the heirs. It is advisable to seek assistance from a Lawyer specialized in inheritance law, who can provide legal and tax advice and assist in the drafting of the necessary documents.
● Consider the tax implications: the division of the inheritance can have tax implications, both regarding the inheritance tax, and for any taxes on the sale of assets. It is important to carefully evaluate this aspect as well, to avoid unpleasant surprises.
Necessary documents
For the division of the inheritance, several documents are required, including:
● Death certificate;
● Identity document of the heirs;
● Copy of the will (if it exists);
● Inventory of inherited assets;
● Documentation relating to any tax reductions or allowances.
Registration of inherited assets
Finally, to complete, we recall the importance of carrying out this last step as well:
● Registration of real estate: if the inheritance includes real estate, it is necessary to register them with the Land Registry. Registration allows the transfer of ownership to the heirs to be made public.
● Registration of other assets: other inherited assets, such as bank accounts or securities, must also be transferred to the name of the heirs.
International succession
If the testator is a foreigner or if the inherited assets are in different countries, issues of private international law may arise to establish the law applicable to the succession and the jurisdiction of the authorities involved. In these cases, it is essential to consult with a lawyer specialized in international successions to properly manage the legal and tax implications.
Useful tips
Given the complexity of the matter, we recommend seeking assistance from a Lawyer specialized in inheritance law. These professionals can provide fundamental support in the management of inheritance practices, in the drafting of necessary documents and in compliance with tax regulations. We recall below the most delicate steps:
● Preparation of the Inheritance Declaration and management of all procedures related to the inheritance.
● Documentation: it is necessary to collect all the documentation necessary for the inheritance practice, such as the death certificate, the will (if present), the identity documents of the heirs and the documents relating to the inherited assets.
● Deadlines: comply with the deadlines set by Spanish law for the submission of the inheritance declaration and the payment of related taxes.
● Acceptance or renunciation of the inheritance: before accepting or renouncing the inheritance, it is essential to carefully assess the financial situation of the deceased and the implications of your decision. In case of doubts or uncertainties, it is always advisable to contact a Lawyer specialized in inheritance law to obtain personalized advice.
● Residence: if the deceased or the heirs reside in a country other than Spain, specific regulations on international successions may apply.
● Regional regulations: each Autonomous Community in Spain has its own regulations, so it is important to inquire about the specific provisions applicable to the specific case.
● Verify the allowances: it is essential to verify if you are entitled to reductions or allowances, as they can significantly reduce the amount of tax to be paid.The Fiat Lux team is ready to solve any problem you may have on these issues. Write to us at: info@fiatlux.legal and we will be happy to help you.