EDITION: October - December 2012


Texto: Anja Sämann-Gutschick y Armin Gutschick

When there is an inheritance to claim, heirs have no other choice but to deal with the bureaucracy involved.
Contrary to other judicial systems, Spanish law establishes that an inheritance needs to be accepted explicitly. It is especially important to formalize this acceptance before a notary when dealing with real estate, since this is an essential requirement in order to be able to register the heirs at the Property Registry. It is also advisable to accept the inheritance through a notary deed when the inheritance is subjected to the inheritance laws of another country (eg. German successions law) because, generally, this makes the transfer of the real estate property easier and quicker.

In order to declare the acceptance of an inheritance you need the following documents:
1. Death certificate (“Certificado de defunción”)
So as to prove that deceased has passed, a death certificate needs to be presented to the notary. When the death takes place in Ibiza, this certificate is issued by the Civil Registry of the relevant island municipality. If the deceased is foreign, his or her Consulate should also be advised. If the deceased passes away abroad, it is the relevant Civil Registry of that country who issues the death certificate. Most Civil Registries issue international death certificates, so translations are not needed.  
2. Certificate of last will & testament (“Certificado de últimas voluntades”)
It is also compulsory to present the last will & testament certificate that proves whether or not the deceased had registered his or her will at the General Registry for such documents in Madrid (“Registro General de Actos de Última Voluntad”). In Spain, if a will is drawn up before a notary, the latter will automatically communicate it to the national Registry. When death has occurred, by presenting the death certificate you can enquire whether or not a will exists and who is the notary involved who can issue a copy of it. Absence of a registered will is also certified.
3. Will
If, according to the information obtained at the General Registry in Madrid, there is a will, then the deceased’s last will always be binding as long as it complies with all the legal requirements, such as respecting the shares of the estate that Spanish law assures descendants, called “legítimas” (legal portion). Writing up a will is desirable if someone does not want their estate to be shared out according to what the law establishes for intestate successions. Before a will is drawn up, legal advice should be sought in order to avoid confusion and possible litigation between the heirs. When it comes to foreigners, a will registered in Spain will generally simplify the process of accepting the inheritance.
4. Heirs’ statement
The heirs’ statement defines who are the heirs and is necessary, especially, when there is no will. In Spain, issuing this statement is generally up to the Courts that correspond to the place of residence of the deceased. Foreigners need to request the heirs’ statement at the Courts corresponding to their place of birth, legalize it with an Apostille of The Hague and get it translated by a sworn translator.
If you accept an inheritance, you need to pay the Succession Tax within the established timeframe, which is generally six months. Heirs can ask for a deferral, but if the tax is not paid before the deadline, interest will be incurred.
Both the acceptance of the inheritance and prompt payment of the succession tax will be easier for the heirs if the deceased has his or her papers in order and easily accessible to them, avoiding them having to go through lengthy enquiries regarding the estate. Some of the documents that are important when accepting an inheritance are, for example, documents that relate to real estate purchases, to bank accounts and to life insurances.