Regulation (EU) on the competence, applicable law, recognition and enforcement of decisions, and authentic instruments in matters of succession
The Union has the objective of maintaining and developing an area of freedom, security, and justice, in which the free movement of persons is assured. For the gradual establishment of such an area, the Union adopts measures in the field of judicial cooperation in civil matters having cross-border implications, where necessary for the proper functioning of the internal market. Such measures may be aimed, inter alia, at ensuring the compatibility of the rules applicable in the Member States concerning the conflict of laws and of competition.
The proper functioning of the internal market is facilitated by removing the obstacles to the free movement of persons who currently encounter difficulties in exercising their rights in situations of death by succession with cross-border implications. In the European area of justice, it is imperative that citizens be able to organise their succession. The rights of heirs, legatees and persons close to the deceased, as well as creditors of the estate, must be effectively guaranteed.
In order to achieve these objectives, the Regulation brought together the provisions on jurisdiction, applicable law and the recognition or, where appropriate, acceptance, enforceability and enforcement of judgments, authentic instruments and court settlements, as well as the creation of a European Certificate of Succession.
The Regulation covers all civil law aspects of succession to the estates of deceased persons, i.e. all forms of transfer of property, rights and obligations by reason of death, whether arising from a voluntary transfer by virtue of a disposition mortis causa or from a transfer by default.
In view of the increasing mobility of citizens and in order to ensure the proper administration of justice in the Union and guarantee that there is a real link between the succession and the Member State in which jurisdiction is exercised, the Regulation establishes as a general link, for the purposes of determining both jurisdiction and the applicable law, the habitual residence of the deceased at the time of death. In order to determine habitual residence, the Authority dealing with the succession must make a general assessment of the circumstances of the deceased’s life during the years preceding his death and at the time of his death, taking into account all the relevant facts, in particular the duration and regularity of the deceased’s presence in the State concerned, as well as the conditions and grounds for such presence. The habitual residence thus determined must reveal a close and stable link with the State concerned, taking into account the specific objectives of this Regulation.
In some cases, determining the habitual residence of the deceased may prove complex. This would be the case, in particular, where for professional or economic reasons the deceased had moved to another country to work there, sometimes for a prolonged period, but had maintained a close and stable link with his State of origin. In such a case, depending on the circumstances, the deceased could be considered to have his habitual residence in his State of origin, where the centre of interest of his family and his social life was located. Other complex situations could also arise where the deceased had resided in various States alternately or had travelled from one State to another without permanently residing in any of them. If the deceased was a national of one of those States or had his main assets in one of them, the nationality of that State or the location of those assets could be a special factor in the overall assessment of all the objective circumstances.
As regards the determination of the law applicable to the succession, in exceptional cases where, for example, the deceased had moved to the State of his habitual residence shortly before his death, and all the circumstances of the case indicate that he had a manifestly closer connection with another State, the authority dealing with the succession may conclude that the law applicable to the succession is not the law of the State of the habitual residence of the deceased but the law of the State with which the deceased had a manifestly closer connection. However, the manifestly closer connection does not be used as a subsidiary link where the determination of the habitual residence of the deceased at the time of his death is complex.
To enable citizens to benefit from the advantages offered by the internal market, while respecting legal certainty, the Regulation must enable them to know which law will be applicable to their succession. In addition, harmonised conflict-of-law rules must be introduced to avoid contradictory results. The main rule is to ensure that the succession is governed by a foreseeable law with which it is intricately connected. For reasons of legal certainty and to avoid fragmentation of the succession, it is necessary for this law to govern the whole of the succession, that is to say all the assets and rights, irrespective of their nature and whether they are located in another Member State or in a third State, which form part of the inheritance.
The Regulation must enable citizens to organise their succession by choosing the law applicable to their succession. Such a choice must be limited to the law of a State of their nationality, in order to ensure that there is a connection between the deceased and the law chosen and to prevent a law being chosen with the intention of frustrating the legitimate expectations of the forced heirs.
The choice of law must be made explicitly in a statement in the form of a mortis causa provision or must result from the terms of such a provision. The choice of law may be considered to result from a disposition mortis causa if, for example, the tortfeasor has referred in it to certain specific provisions of the law of the State of his nationality or has otherwise explicitly mentioned that law.
The choice of law made under the Regulation is valid even if the law chosen does not provide for a choice of law in matters of succession. It must, however, be for the law chosen to determine the substantive validity of the act of election, i.e. whether the person who made the choice can be deemed to have understood what he was doing and to have consented to it. The same must apply to the act of amending or revoking the choice of law.
The law determined as applicable to the succession must govern the succession from the opening of the succession to the transfer to the beneficiaries of the property and rights making up the inheritance as provided for by that law. It must include issues relating to the administration of the estate and liability for the debts and burdens of the estate. The payment of debts by virtue of the succession may, depending on the law applicable to the succession, include taking into account a specific order of priority of creditors.
The law applicable to the succession must determine who the beneficiaries are in a given succession. In most legal systems, the term “beneficiaries” includes heirs and legatees, as well as those entitled to inherit, although, for example, the legal position of legatees is not the same in all legal systems. In some legal systems the legatee may receive a direct share in the inheritance, while in other legal systems the legatee only acquires a claim against the heirs.
In order to ensure legal certainty for persons wishing to plan their succession, the Regulation lays down a specific conflict-of-law rule regarding the admissibility and material validity of the provisions mortis causa. To ensure a uniform application of this rule, the Regulation must list the elements which are to be considered as elements of substantive validity. The examination of the substantive validity of a provision mortis causa may lead to the conclusion that the provision mortis causa has no legal existence.
Inheritance agreements are a type of disposition mortis causa whose admissibility and acceptance varies from one Member State to another. In order to facilitate the acceptance in the Member States of rights of succession acquired as a result of a succession agreement, the Regulation determines the law which must govern the admissibility of such agreements, their material validity and their binding effects between the parties, including the conditions for their settlement.
The law which, under the Regulation, governs the admissibility and material validity of a disposition mortis causa and, in relation to agreements as to succession, the binding effects between the parties, does not prejudice the rights of any person who, under the law applicable to the succession, is entitled to the legitimate or any other right which cannot be deprived by the person whose inheritance is involved.
Where the Regulation refers to the law which would have been applicable to the succession of the deceased who made the disposition mortis causa if he had died on the date on which he made, modified or revoked that disposition, as the case may be, that reference is to be understood as referring to the law of the State of the deceased’s habitual residence on that date, or, if he had made a choice of law under the Regulation, to the law of the State of his nationality on that date.
In some cases, it may be that no one claims an inheritance. Different legal systems have different provisions for such situations. In some legal systems, for example, the State may claim the vacant inheritance as if it were an heir regardless of the location of the assets. In other legal systems, the State may appropriate only the property located on its territory. The Regulation therefore lays down a rule that the law applicable to the succession does not prevent a Member State from appropriating under its own law the property located on its territory. However, in order to ensure that this rule does not prejudice the creditors of the estate, the condition is added that the creditors of the estate must be able to seek satisfaction of their claims from the property and rights of the estate regardless of the location of the property.
To take account of the different systems for dealing with successions in the Member States, the Regulation ensures the acceptance and enforceability in all Member States of authentic instruments in matters of succession.
Public documents must have the same or the closest comparable effect in another Member State as in their country of origin. The determination of the evidentiary value of a particular authentic act in another Member State or the closest comparable effect must be made by reference to the nature and extent of the evidentiary value of the authentic act in the Member State of origin. Therefore, the evidentiary value of a particular document in another Member State depends on the law of the Member State of origin.
The “authenticity” of a Public Document is an autonomous concept that includes aspects such as its veracity, its formal prerequisites, the powers of the Authority that formalizes the act and the procedure by which it is formalized. It also includes the facts officially stated by the competent Authority in the public document, such as that the indicated parties have appeared before the Authority on the date indicated and that they have made the statements expressed therein. A party wishing to challenge the authenticity of an authentic act must do so before the competent court in the Member State of origin of the authentic act and under the law of that Member State.
The words “the legal acts or legal relationships recorded in a public document” must be interpreted as referring to the material content recorded in the public document. The Legal Acts recorded in an authentic act may be, for example, the agreement between the parties on the division or distribution of the inheritance, a will, an agreement on succession or another declaration of will. Legal Relations can be, for example, the determination of the heirs and other beneficiaries established under the law applicable to the succession, their respective shares and the existence of legitimate or any other element established under the law applicable to the succession. A party wishing to contest the Legal Acts or the Legal Relations set out in an authentic act must do so before the Courts having jurisdiction under the Rules, which must rule on the contest in accordance with the law applicable to the succession.
The rapid, swift and efficient processing of successions with cross-border implications in the Union requires that heirs, legatees, executors of wills or administrators of the estate can easily prove their status as such or their rights or powers in another Member State, for example in the Member State where the assets of the estate are located. To enable them to do so, the Regulation created a uniform certificate, the European Certificate of Succession, which is issued for use in another Member State. In accordance with the principle of subsidiarity, the European Certificate of Succession does not replace documents which may exist with similar effects in the Member States.
The European Certificate of Succession
The rapid, swift and efficient processing of successions with cross-border implications in the European Union requires that heirs, legatees, executors of wills or administrators of the estate can easily prove their status as such, or their rights or powers, in another Member State, for example in the Member State where the assets of the estate are located. To enable them to do so, the Regulation created a uniform certificate, the European Certificate of Succession, which is issued for a term of validity of six month – may be renewed- to be uses in another Member State. In accordance with the principle of subsidiarity, the European Certificate of Succession does not replace documents which may exist with similar effects in the Member States.
The authority issuing the European Certificate of Succession must take into account the formalities required for the registration of immovable property in the Member State where the register is located.
The use of the European Certificate of Succession is not compulsory. This means that persons entitled to apply for a certificate does not be obliged to do so, but must be free to make use of the otherlegal documents made available to them by the Regulation (public documents or court settlements). However, no authority or person to whom a certificate issued in another Member State is presented is entitled to request the presentation of a judgment, authentic instrument or court settlement instead of the European Certificate of Succession.
The European Certificate of Succession must be issued in the Member State whose courts have jurisdiction. It is up to each Member State to determine in its national legislation which authorities are competent to issue the certificate, whether they are courts or other authorities with jurisdiction in matters of succession, such as notaries. Member States communicate to the Commission relevant information concerning their issuing authorities in order to ensure that this information is made public.
The European Certificate of Succession must have the same effect in all Member States. It is not an enforceable title in itself but must have evidential effect and be presumed to provide reliable proof of elements which have been established in accordance with the law applicable to the succession or any other law applicable to specific elements, such as the material validity of the provisions mortis causa. The evidential value of the European Certificate of Succession does not affect elements which are not governed by this Regulation, such as the question of parentage or the determination of whether an asset belonged to the deceased. Any person making payments or handing over property to a person who is entitled under the European Certificate of Succession to receive such payments or property as an heir or legatee must receive adequate protection if he has acted in good faith on the basis of the accuracy of the information provided in the certificate. The same protection must apply to any person who, on the basis of the accuracy of the information provided in the certificate, acquires or receives the property of a person entitled to dispose of it in the European Certificate of Succession. The protection must be ensured if authentic copies which are still valid are submitted. The Regulation does not determine whether such acquisition of property by a third person is effective or not.
The European Certificate of Succession must be issued by the competent authority upon request. The original of the European Certificate of Succession must remain with the issuing authority, which must issue one or more certified copies of the European Certificate of Succession to the applicant and to any other person demonstrating a legitimate interest. The Regulation provides for the possibility of appeal against decisions of the issuing authority, including decisions to refuse to issue a certificate. In the event of rectification, amendment or withdrawal of the certificate, the issuing authority must inform the persons to whom the certified copies have been issued in order to prevent misuse of those copies.
Respect for the international commitments entered into by the Member States means that the Regulation does not affect the application of international conventions to which one or more of them were parties when the Regulation was adopted. In particular, Member States which are contracting parties to the Hague Convention of 5 October 1961 on the Conflicts of Laws relating to the Form of Wills must be able to continue to apply the provisions of that Convention instead of the provisions of the Regulation as regards the formal validity of wills and joint wills. Consistency with the general objectives of the Regulation requires, however, that the Regulation must take precedence as between Member States over conventions concluded exclusively between two or more Member States in so far as such conventions relate to matters governed by this Regulation.
The Regulation does not preclude the Member States which are parties to the Convention of 19 November 1934 between Denmark, Finland, Iceland, Norway and Sweden, which contains provisions of private international law concerning succession, wills and the administration of estates, from continuing to apply certain provisions of that Convention, as revised by the intergovernmental agreement between States party to the Convention.
In order to facilitate the application of the Regulation, it imposes on the Member States an obligation to communicate certain information concerning their legislation and procedures in matters of succession within the framework of the European Judicial Network in civil and commercial matters. To ensure the timely publication in the Official Journal of the European Union of all information relevant to the practical application of the Regulation, the Member States also communicate this information to the Commission before the Regulation becomes applicable.
In addition, in order to facilitate the application of the Regulation and to make use of communication technologies, standard forms are provided for the certificates to be submitted in connection with the application for a Declaration of enforceability of a judgment, an authentic act or a court settlement, and with the application for a European Certificate of Inheritance, as well as the certificate itself.
In order to achieve uniform conditions for the implementation of the Regulation, implementing powers are conferred on the Commission with regard to the creation and subsequent amendment of certificates and forms relating to the declaration of enforceability of judgments, court settlements and authentic instruments, as well as the European Certificate of Succession.
The advisory procedure is used for the adoption of implementing acts establishing and subsequently amending the certificates and forms provided for in the Regulation.
Since the objectives of the Regulation, namely the free movement of persons, the organisation by European citizens of their succession in the context of the Union, and the protection of the rights of heirs and legatees and of persons close to the deceased and of creditors of the estate, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, the Regulation does not go beyond what is necessary to achieve those objectives.
The Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. It must be applied by the courts and other competent authorities in the Member States in compliance with those rights and principles.
The will under Spanish law
The Testament is the document that contains the last Will of a person on how to distribute his property when he passes away. It is individual. Each person should grant his or her Will. Given the importance of this document, it is important to be well informed and have the advice of a lawyer. Last will is the most recent will of a deceased, the instrument ultimately fixing the disposition of real and personal property at the testator’s death. It is also termed last will and testament.
Granting a Will in Spain
Granting a Will is simple. First of all, the testator must decide how to leave the inheritance. The Will is revocable and can be changed as many times as you like, the last one leaves without effect the previous one.
The Notarised Open Will (or nuncupative notarised Will) is the most common because of its advantages over other forms of making one’s Will (holograph Will, sealed notarised testament, and so on). It is granted in public deed before a notary.
Previously, an attorney should inform the testator on how he can distribute his assets along with the heirs, writing this decision adjusted to the current legality. Once everything is decided, and written in two languages in two column, it is sent to the notary, making an appointment for its grant. The notary is in charge of incorporating the original testament to his protocol and submits a report on its existence to the Register of Last Wills.
Basic dispositions of the Last Will and Testament
In the Last Will and Testament, the testator chooses who he prefers to inherit his assets and rights, and if there are several beneficiaries, be heirs or legatees, how he distribute goods among them. It is not mandatory to specify what property we leave to each heir, but if we leave a beneficiary. The usual thing is to leave a percentage to each child. After the death, the heirs must make an inventory of the assets and debts of the deceased, and proceed to partition.
The testator can leave a particular property (a real estate, a jewel, money, etc.), through Legacy to a person or institution, respecting the limits imposed by the legitime quote rules.
The testator may also designate a guardian for a minor child. Also, it is possible to include other provisions, such as limiting the date or age at which a property Will become the property of an heir.
When the testator’s marital status is married, and with children, the most commonly used Will be the one in which the couple leaves the usufruct to each other and appoint heirs to the children. It consists of making the widow usufructuary of all the assets of the marriage, guaranteeing him or she the right to inhabit in the family house while he lives without the children being able to object. In no case may the widow sell anything inherited from the deceased without the children giving their consent. When the two spouses passed away, the children will acquire full ownership of the property in equal parts or as they would have.
The legitime quote
Under British inheritance law, the testator may dispose of his estate and his possessions as desired. It is completely acceptable to leave all your assets to charity, a friend, to your spouse, or any of your children.
In Spain, the testator is not always free to leave his patrimony to whom he wants and how he wants. He must respect the legitime quote right of the forced heirs. Under Spanish inheritance law, certain parts of the estate must be left to particular relatives when someone dies. These are the ‘legal beneficiaries’ and include spouse and children. It means, in the end, that the testator decides with total freedom only one-third of the estate.
The legitimate is the figure that marks the limits of the distribution of the goods to the «forced heirs». These are the descendants of the deceased, the ascendants and the spouse, in this order. The order is important because the Spanish Civil Code give priority to some over others.
The children and descendants are entitled to 2/3 parts of the inheritance, one of those thirds to be distributed equally, and the other ( a third of betterment) as determined by the testator. If there are no descendants, the ascendants are entitled to half the inheritance, or 1/3 if there is a widowed spouse. In the case of the spouse, he or she is entitled to 1/3 of the inheritance in usufruct if there were children or descendants; To half of the inheritance in usufruct, if there are ascendants, or to 2/3 of the estate in usufruct, if there were no ascendants or descendants. A will that does not dispose of property to the testator’s natural heris, depriving them of a portion of the estate to which they are entitled by law, is an unofficious testament.
As an exception, the Spanish regions of the Basque Country, Navarre, Aragon, Catalonia and the Balearic Islands have their rules which also contain legitime quotes, but with peculiarities. For example, in Mallorca and Menorca are apparent or forced heirs the children or descendants of the deceased and, failing these, the parents. If they are four children or less, the legitimate one Will be a third of the inheritance. If they are five or more, the legitime quote shall be 1/2 of the inheritance. The legitimate of the parents is one-fourth of the estate.
Regarding the rest of the inheritance, there is freedom bequeathing in the Will, although the widowed spouse Will be entitled to the usufruct of half of the estate if it there is descendants and of 2/3 if it there is parents.
In Ibiza and Formentera the descendants are legitimate in equal proportion as in Mallorca and Menorca, and in their absence, the parents are apparent heirs. The legitime quota of parents Will be 50% of the inheritance unless they are with the widowed spouse, in which case it Will be 1/3.
Causes to disinherit a forced heir
In some situations the law recognises that an heir may be deprived of his or her legitime part of the inheritance, being the most common cause to have denied to the father or mother food, or physical or mental abuse, or both at the same time.
In the case of inheritance from children to parents, the Civil Code allows disinheriting the parents if the child has been abandoned, prostituted or corrupted; they had lost parental authority by sentence; had denied maintenance to the son or daughter; or if one of the parents has attacked the life of the other.
The Civil law establishes the heirs to whom the inheritance corresponds following a kinship order, whether the deceased was married and with children or if the deceased had no progeny. In both situations, the person or persons -descendants, ascendants or spouse- who consider themselves heirs Will need to formalise before a notary a STATEMENT OF HEIRS ABINTESTATO. Collateral relatives who consider themselves heirs can only apply to the courts.
Our main concern is to be there when you need us. We will assist you with essential issues to deal with your Spanish inheritance, keeping in touch regularly with each of the inheritors, in a way that you do not have to be bothered with the process because you will be sure we do. All you need to do is to attend our indications, which will always be explained on the phone and registered in emails.
We offer you complete personal attention, advice, and support to guide you in the process, making easy your inheritance in Spain, being always available to attend you personally in our office ( the previous appointment, to make sure we have reserved enough time for you), by email or on the telephone.
key steps to accept the inheritance, from the application of the death certificate to the delivery of all assets and rights
A.- Initial Formalities: Death Certificate, Certificate from the General Registry of Acts of Last Will, Certificate from Registry of Insurances with death coverage
Life Insurance Central Registry Certificate
Occasionally the heir is not aware of its existence of a life insurance policy, and consequently, he would never come to claim it. Could happen that even the deceased ignored he had such insurances because they came associated with other financial products. The deadline to apply for the compensation of life insurance is five years.
If these amounts are not claimed within this period, they will be lost. Therefore in 2005 was created a Register of Life Insurance Contracts with Coverage for Death, where insurance contracts are recorded, and where heirs can apply for a certificate to discover if the deceased had life insurance.
B.- Succession Title: Will or Declaration of Heirs
To continue the proceedings the heir needs an authorised copy of the will. Having the will is crucial because it will show who is the heir, and when several, in which percentage.
If the deceased made a will in Spain, it shall appear on the certification we have obtained from the Central Registry of Acts of Last Will. He may did several, although the only testament of significance will be the later dated.
The certification indicates the date of the will, the name of the notary where it was granted, and the Notary office where was granted. Consequently, with this information the heir knows in which Notary office he can request the authorised copy of the will.
The application can be made in person at that notary’s office, but only one of those individual mentioned in the will or interested in the inheritance (or a representative with special power of attorney ); it can be applied also by post by sending a request signed behalf of any notary. Once legitimised the signature on the application, we can send to the notary where the will is protocolised, together with the certificate of last will and an original death certificate.
The authorised copy of the will has a cost that depends on the number of pages of the original will and the time it was granted. It will take from the application notice at notary’s office about 2 days.
Notarial or Court Declaration of Heirs
If the deceased granted a will in Spain, we will only know it when we get the certification of the Central Register of Last Wills, as earlier explained. When applicable the Spanish Inheritance Law, in such cases it will require always a notary to determine who are the heirs called in accordance with the Spanish law, processing the declaration of heirs.
The procedure to be followed in such cases is simple. First, must be determined a competent notary, at the applicant’s choice. It can be the Notary of the last domicile of the deceased, or where most of inheritance estate is located, or the place of death.
The documents that must be handed over to the Notary are :
1. ID of the deceased, or otherwise birth certificate.
2. Original death certificate and certification Last Will.
3. Birth certificates for all the heirs.
4. Death certificates of the predeceased legitimaries.
5. Family Book.
6. Two witnesses who know well the family, of the same village, to declare they know that there are not other heirs.
Once you have all these documents together, you need to take them to the notary’s office, prepare the deed with his officials, make an appointment and come that day with the two witnesses, to sign the Inheritors Declaration Deed with the notary.
Since signing the deed until the notary declares formally who the intestate heir is, must wait at least 20 working days, which in practice becomes almost a month. Since then, heirs can obtain a notarised copy of it, where who are the heirs and their share on it will be declared.
C.- Inventory : Assets, Real Estate, Cash, Current Accounts balances or positions, Shares, Vehicles, Insurances, House equipment
First of all, the inheritor needs to find out all the title deeds of property of the deceased. For that, he can apply online for «Property Localization Notes», to determine in which Registries of Spain appear registered properties. When this is known, he should apply for a «simple note» of all the properties that may be registered in each of those Land Registry offices. When we get that information, the “Nota Simple”, In addition to identifying and exact description of those properties, we will know, if any, the mortgage charges or liens that may fall on each of them.
But there can be unregistered properties, beause the deceased only bought it with a private contract, and never got the title deed, or because, having a title deed, he never cared to properly register it. The heir shall find those documents by any means, if he wants to inherit them. It’s not all lost, of course, there are different ways of correcting these situations.
If you are aware of an existing property not registered in the Land Registry, the Real Estate Cadastre is another ideal means of localisation . Whatever appears in favor of the deceased, with his full name and data registered in the cadaster as owner, should there not be anyone with a better title, can be also inherited.
Cash, bank account balances and securities
With legalised copies of the Certificate of Death, the Last Will Certificate of the Central Register, and an authorised copy of the Testament (or Declaration of Heirs), all banks must be requested in writing to issue a certification of all balances, shares and securities owned by the deceased, Referred to the day of his death.
Banks charge fees for certifying balances of bank accounts and securities. Since these certificates have a cost, you can start by collecting the bank documents that the deceased had at home. Limit the search to those banks, and to the bank accounts that are identified in the last declaration of the Spanish Income Tax -IRPF-; And, finally, go bank by bank asking if statements appear in his name, and if so, you are entitled to apply for the balance certificate.
The bank blocks all accounts of the deceased as soon as they are aware of his death. You can only take the money from them when you show the bank to have paid the inheritance tax and your status as heir.
As for the vehicles, once the taxes have been paid, the ownership must be transferred to the heir or legatee in the General Direction of Traffic.
All property, rights and shares must be valued according to their real value (market value). Usually, the market value and the cadastral value rarely coincide. The valuation must be made taking into account the state of the goods to the day of the death.
The Spanish Regions have stablished different criteria to value the real estate, taking most of them the cadastral value as the starting point. For instance, in inheritances on properties located in the Valencian Region must be applied the cadastral value for its calculation, applying a multiplier coefficient. However, the Canary Islands do not have fixed valuation criteria, so you have to take into account the real market value.
Assessment of the Usufruct
The valuation of the usufruct is decisive to calculate the inheritance tax payable by the usufructuary and by the “nude owner”. It is also important when the usufructuary must be compensated in cash, or other rights in full domain, instead of usufruct.
The national ISD law establishes these rules:
– Temporary usufruct: 2% of the total value for each year, without exceeding 70%.
– Lifetime usufruct: 70% of the total value when the usufructuary is less than 20 years old, subtracting as age increases, 1% for each year more than nineteen, with a minimum of 10% of the total value.
– Formula: 89 minus usufructuary age,whereas results a number, that is also the percentage to be applied, with a maximum of 70% and a minimum of 10%.
Valuation of the Nude Property.
The value of the “nude property” right derives from the difference between the value of the usufruct and the total value of the property. In other words, Full value of the property = nude ownership value + usufruct value.
Debts of the deceased
By accepting the inheritance, the heir receives properties and rights, but also debts, becoming therefore obliged to pay them not only with the inherited rights but also with his personal wealth. For this reason, if the inheritor knows that the deceased had debts and obligations, he shall consider whether to accept the inheritance. In case of doubt, the best option is to accept the inheritance, but only under prior inventory , which limits the liability of the heir to the payment of debts up to the limit of the inherited rights and patrimony. If the debts are higher than rights, the option to exercise the right to renounce inheritance before a notary (in a private document does not have validity) or to accept it for the benefit of inventory, must be taken into account.
The inheritor must keep this present: a person assumes the inheritance tacitly if he performs any act that implies having assumed the status of heir, for example by using or selling a property, or by spending money on it. In other words, acceptance of the inheritance may be also implied, and it may have strong legal consequences.
Debts of the inheritance
These are obligations generated by the succession itself, such as burial and funeral expenses, authorising Notary, Property Registry, Lawyer, Certifications, and Inheritance Tax, Municipal «Plusvalia», fees for the certificate of the General Registry of Last Acts Will, the certificate of the Life Insurance Registry, the application for the authorised copy of the will, fees for transfers of vehicles , Bank fees for the issuance of balance certificates.
The deceased may have designated a life insurance beneficiary to a person who has nothing to do with his heirs since the amounts that are collected by the life insurance are not part of the inheritance. However, in cases where there is no specific designation of life insurance beneficiaries, the amounts will correspond to the heirs. When making the liquidation of the Inheritance Tax, and the amounts that are received by life insurances must be included.
Domestic trousseau (furniture and household goods) are awarded in principle to the surviving spouse, being jewels and other objects of extraordinary value not included. It is by law estimated at 3% of the total value of the inheritance, unless the heir assigns a higher value, demonstrates that it does not exist or that its value is lower than that resulting from the application of said percentage.
Finally, the widower or couple may have the right to be assigned the usual family accommodation.
Preparing all the paperwork for Notarization
Why Do I Need a Lawyer to deal with my inheritance?
Bureaucratic paperwork Services…
Putting in order deeds, assets, taxes…
Services after the signing of the inheritance deed
We will prepare it for You
Bureaucratic paperwork Service, we will…
- Procure bank account certificates
- Open a new bank account for the inheritors
- Obtain the Spanish last will certificate
- Get from the town council registration records
- Claim life insurance rights
Putting in order deeds, assets, taxes…
- Application for inheritor’s NIE
- Prepare a PoA in Spain or the United Kingdom, to avoid you travelling too many times unnecesarily
- Get from the Notary a copy of the Last Spanish Will granted by the deceased.
- Prepare the Deed of Acceptance of the Inheritance at the Notary, for you to sign, or us in your representation using the PoA.
- An exact estimate of the Spanish Inheritance Tax to be paid by each inheritor.
Services after the signing of the inheritance deed
Fill the official Forms for the Spanish Inheritance Tax, and pay it in your bank account within the deadline of the six-month term since the demise
Pay to the Town Council the so-called «plusvalía tax» for the inheritance (local tax based on the increase in the value of the land)
Registration of the change of ownership at the Land Registry, by presenting the deed and tax paid
Modify holder’s of the inherited bank accounts, of transfer the remaining funds to the new one and close down the old ones
Pass to your name and bank account all utility services and bills
Communicate new owner’s name and title to the community of owners, when applies
Advice and support with the yearly Spanish taxes that inheritors shall assume as new owners
Prepare titles and all documents required just in case inheritors decide to sell the property
Moraira Teulada Benissa Benitachell Calpe
Altea Javea Denia
We will take you through each step till the end.
The confidence to proceed.
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Inheritance Service Pack