13 January 2021, Alberto Perez Cedillo

Succession Law Glossary – Spain

This glossary is directed mainly at the solicitor whose client dies in Spain, leaving property there. The radical difference between common and civil law have often made it very difficult to find equivalent legal concepts; in those cases, I have identified such a concept as typical or peculiar. In other instances, concepts have been explained briefly, but special advice in more detail may be required. This article also contains a small working vocabulary and definitions for important or frequently encountered concepts, including some idioms useful when dealing with Spanish private client work.

Administrator or executor (albacea)

The albacea is the Spanish equivalent to the executor or administrator – the person in charge of dealing with certain matters as to the estate of the deceased, according to the deceased’s wishes. However, while it is compulsory to appoint an administrator or executor under English law, under Spanish law, matters of ownership and payments, including death duties, are dealt by the beneficiaries, although it is open for the testator to appoint an executor of his state. This means an albacea is quite uncommon; the winding-up of the estate in Spain is carried out, in most cases, by the beneficiaries. The powers of the albacea are therefore much more restricted than those of the executor in England and Wales, particularly as those appointed to this role do not deal with payment of the taxes on behalf of the beneficiaries.

Agreements as to Succession (pacto sucesorio)

Is the binding agreement between the testator and a third party regarding his/her estate and will come into force upon the testator’s death. There are however restrictions as to who that third party may be. The main difference with a will is that wills can be revoked by the testator at any time whereas agreements as to succession can only be revoked by mutual consent of the grantors.Succession agreements are expressively prohibited under the Spanish Civil Code, however, there are very few exceptions in which they can be used. The Succession agreements are valid and enforceable in some areas of Spain such as Catalonia.

Autonomous communities

Spain was formed from the union of various small kingdoms, and its traditional laws have been respected within the single state. These are now known as autonomous communities (comunidades autónomas). These communities are part of a single nation, with a system of inter-regional law. They have certain legislative powers to set up their own rates of inheritance tax and the shares of statutory legacies.

Apostille of The Hague

This applies to public documents which have been executed in the territory of the states’ signatories to the Convention of The Hague of 5 October 1961. Legalisation with the Apostille means the formality by which the appointed authority under the convention certifies the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears by affixing the Apostille, so it may be recognised in any other contracting state.

Barrister and solicitor (abogado)

Spanish lawyers are known as abogados (the legal profession in Spain is not divided between barristers and solicitors). Litigants are guided by abogados, who are legally permitted to exercise their profession in the courts and tribunals which hear cases. Spanish abogados are not officers of the court, and their duty is to the client. Correspondence between abogados is privileged. They are not required to keep separate office and client accounts or follow rules in the handling of clients’ monies or submit audited accounts to the Spanish Law Society (see ‘Law Society’ below). Unilateral promises given by a Spanish abogado to do or not to do something are not binding, unlike the undertakings given by solicitors in England and Wales.

Benefit of inventory (beneficio de inventario)

It is the right of this individual to accept the inheritance, subject to an inventory of the deceased’s estate being made in the presence of a notary and representatives of the creditors of the estate. The acceptance is limited to any surplus that may be left, so that the beneficiary does not acceptthe liabilities or debts of the estate.

Central wills registry

Every will has a certification number in Spain, which is kept on file at the Central Register of Spanish wills, located in Madrid. There is no equivalent in England and Wales.

Charities

Gifts to charities, such as institutions of welfare, education or religion, are exempt from death duties. However, before a client makes a decision in this respect when preparing a will, a lawyer should generally be consulted to check that the institution in question falls within the exemption contemplated by the law.

Civil partnership

Same-sex couples’rights and responsibilitiesare identical tocivil marriage in Spain and are fully recognised under the same name as heterosexual couples – that is, “marriage”. Such partnerships give the same succession rights as heterosexual marriages. Some regions have also regulated cohabiting couples as simulating the succession rights to those of matrimony

Civil residence (vecindad civil)

This is the closest concept existing in Spain to that of domicile in England and Wales, and is different from that of residency (see ‘Habitual residency’ below). A set of local rules will be applicable to a person, subject to certain conditions being complied with. According to the Spanish Civil Code there are several ways to gain the vecindad civil.

Clawback

Only persons entitled to a forced share or to a proportional share in the estate, and their heirs or successors, are entitled to request the reduction of gifts made during the lifetime of the deceased. They are not allowed to waive their rights during the life of the donor, by express statement or by giving their consent to the gift. Neither donees, legatees of anything other than a proportional share in the estate, or the deceased’s creditors may request the reduction or benefit from it. This applies equally to testate and intestate successions.

Codicil

Wills may be amended by codicils. A codicil must be executed in the same manner as a will. The term is the same in England and Spain.

Common Reporting Standard (CRS)

has been in place since January 2016. All banking and financial institutions are obliged to disclose a client’s necessary tax information to the tax authorities. The first exchange of information was scheduled for January 2017. This could have a negative impact on those British nationals who are tax residents in Spain and have not previously disclosed their foreign assets by virtue of the 720 form. It is strongly recommended that you check that those clients already resident in Spain, and those who are planning to move there on a permanent basis, are in compliance with the tax legislation in place.

Court of Protection

There is no equivalent in Spain. All issues referring to mental capacity are decided by the ordinary courts of first instance.

Death registry

The Spanish equivalent is the above mentioned registro civil. This fulfils the same objective as the General Register Office in England and Wales.

Deed of declaration of inheritance

There is no equivalent of this concept in England and Wales. It is a formal declaration of the deceased’s death and disclosure of their estate, to be prepared and signed by the beneficiaries and the appointed executors. The deed states the capacity in which the parties are acting, such as beneficiaries, executors or attorneys for the beneficiaries or executors; it recites the facts relating to the deceased’s death and their succession through the testamentary dispositions made by them; and in addition, it will contain a full inventory of the assets which form the estate, disclosing the value for inheritance tax purposes. In the case of immovable property, the deed will contain a full description of the property as it appears in the title documents, and will incorporate full details of its registration. The liabilities of the estate for which a tax deduction is claimed have to be equally detailed in this deed.

At the end of the document, the distribution of the deceased’s estate among the beneficiaries in accordance with the terms of the will is detailed. The beneficiaries may formally accept the inheritance and, in the case of immovable property, will apply to the land registrar for the registration of the property in their name or names.

Domicile

The concept of domicile, as understood under English law, does not exist in Spain. Indeed, in the most instances where reference is made to a person as domiciled in Spain, it is understood under Spanish law that the person is resident in Spain. The vague and ambiguous concept of domicile under English law makes it possible for a person to acquire Spanish domicile under English law without becoming a resident in Spain under Spanish law.

Evidence of foreign law

A will executed by the deceased in English form is fully valid and recognised in Spain, and therefore valid in Spain as to its form and contents. In order to prove the validity of English will, an affidavit of law (also known as certificate of law) must be issued, reciting that the will in question has been executed in accordance with the formalities required by English law.

European Succession Certificate, instrument that allows beneficiaries, legatees, executors of wills and administrators of the estate to prove their status and exercise their rights in other EU countries

Foreign wills

Article 9 of the Spanish Civil Code refers all matters relating to the succession of a person to the national law of that person, and expressly admits the validity of testamentary dispositions executed in accordance with the national law of the testator. Consequently, contrary to general belief, the mere fact of owning property within Spanish territory does not create the necessity of having a separate will in Spanish form dealing with that particular property; the will executed according to the national law of the testator is valid in Spain and fully effective to dispose of the property according to the wishes of the testator.

Gift inter vivos

Gifts made to children, which are not betterments, shall be attributed to their forced share. Gifts made to non-family members shall be attributed to the part of the estate of which the testator would have been freely able to dispose by testamentary disposition.

Habitual residency

This is the place where a person has set up the permanent or habitual centre of their interests, with the intention of making it permanent. For fiscal purposes, the position differs, in the sense that a person who is not resident in Spain might become resident in Spain for tax purposes if they spend more than 183 days in Spain during one calendar year. The consequences of a person becoming resident in Spain for tax purposes can be serious as far as death duties are concerned, as Spanish law will tax the estate worldwide.

Habitual Residence EU Succession Regulation: The default connecting factor in private international law habitual residence. So, by default, the competent court and the applicable law will be those of the habitual residence of the deceased. However, this represents a fundamental change for Spaniards, as up to now the law of their nationality was the only law which would govern their succession. The concept of habitual residence is not defined in Brussels IV, which may imply that a significant number of English nationals who for no professional or economic reasons live between Spain and England for several months without settling permanently in either country, may have difficulty in determining where they are habitually resident. In such cases, it will be necessary to look at where the centre of interest of the deceased’s family and social life was located. Failing this, the fact that the deceased was an English national or the location of all their assets was in Spain could be a special factor in the overall assessment of all the factual circumstances. Of course, there will be cases in which the final decision, if contested, will be left at the discretion of the judge: for example, an Englishman with dual Spanish and English nationality and property in both countries and who had lived in each country for six months of the year.There are matters excluded from the scope of Brussels IV, but upon which the regulation may still impact. For example, Brussels IV countries can still apply their own taxation rules, but the choice of law of the deceased may have indirect consequences on taxation. Spanish law may be applicable to an English national habitually resident in Spain, which implies that statutory legacies will be taxed differently than if the state was subject to UK law. Equally, tax will be payable by the beneficiaries and not the state, because in Spain it is not compulsory to appoint an executor and, more often than not, beneficiaries inherit directly and are always responsible for the payment of their own taxes.

Inheritance tax

The Spanish central administration passed the collection of this tax to the autonomous communities (see above) into which Spain is divided, so the rates of tax and allowances vary between autonomous communities. To claim the application of a particular community rate of tax, the deceased must have resided in that community for at least five years prior to their death or by reason of the situation of the assets in question. In the case of a person who is non-resident in Spain, the Spanish tax authorities can only claim the payment of Spanish inheritance tax in respect of the deceased’s assets situated in Spain, provided that the deceased’s beneficiaries are not resident in Spain either. If the beneficiaries are Spanish residents, then Spanish inheritance tax is due in Spain on the whole of the deceased’s estate on a worldwide basis.

There has been a recent ruling from the European Court of Justice ordering that the Spanish authorities cannot charge different rates of inheritance tax for residents and non-residents. Since August 2014 non-residents benefit from the same fiscal treatment as residents for inheritance and gift tax purposes.

Intestacy rules

There is a Spanish equivalent – the statutory legacies. The main difference is that these cannot be dismissed by will.

Inventory

There is a Spanish equivalent – inventario. This includes a full list of the assets and obligations of the deceased. This is very important to help the heirs to decide whether or not to accept the estate.

Joint tenancy

There is no equivalent in Spain; property can only be acquired in Spain as co-owners. On the death of one co –owner, the share does not accrue automatically to the survivor (see ‘Tenancy-in-common’ below).

Land Registry

All titles relating to property in Spain are registered at the Spanish land registry. It is therefore possible to search at the land registry to disclose any property owned by the deceased.

Lasting powers of attorney

There is no equivalent in Spain; a Spanish lawyer or other individual cannotbe appointed to make decisions on a person’s behalf, when that person lacks the mental capacity to do so. This can only be achieved by making the necessary application to the court, which will determine who will be appointed to make such decisions.

There is no equivalentto the Office of the Public Guardian where you can register a power of attorney. In order to enforce an English lasting power of attorney in Spain, advice from a Spanish lawyer will be required.

Law Society

The Spanish equivalent is the Colegio de Abogados. There is no equivalent to the Solicitors Regulation Authority in Spain. The Spanish law societies deal with all complaints regarding lawyers, and are also in charge of safeguarding the rights and professional interests of lawyers, permanent vocational training of lawyers, and deontological supervision. They also provide medical and professional insurance to members at a very low cost.

Letters of administration

There is no equivalent in Spain, as inheritance and distribution of the estate are achieved by the beneficiaries appearing before a notary public with no court intervention. The courts will only intervene in the event of disagreement between the beneficiaries. There is no designated probate division in the Spanish courts system, and there is no procedure that specifically corresponds with probate or grant administration.

Matrimonial regime

This is a set of mandatory rules which apply automatically to all married couples in Spain and outline their minimum duties and rights in respect of the managing of assets and the administration of their estate. There is no equivalent in England and Wales. When dealing with the estate of a deceased who was married, it will, under the economic regime of community of assets, be necessary prior to winding-up the estate to dissolve the matrimonial economic regime, allocating the share of the matrimonial assets to the surviving spouse.

Procurator (procurador)

This is the legal professional in charge of submitting the documents made by the lawyer to the courts. In addition to this, this individual also notifies the parties as to the development of the proceedings. The procurator is the person through which the parties must appear before the court; the role operates like a paperwork officer between the court and the Spanish lawyer.

Power of attorney for inheritance

This is a notarial deed granted in favour of a lawyer or any other third party to act on behalf of the beneficiary or executor at the signature of the deed of declaration of inheritance, or to generally deal with the winding-up of the estate.

Regional statute (derecho foral)

This is the civil law existing in some regions, different to the state civil law and law and which relates to family, probate and property matters. There is no equivalent in England and Wales.

Remission or renvoi is a PIL concept when a court must decide which jurisdiction’s laws apply in a cross-border matter. For English nationals owning property in Spain, it is vital that they make an express choice of English law in their will to ensure that Spanish law does not apply by default. This is because Brussels IV prohibits renvoi when English law has been specifically chosen by the deceased, as this will imply overriding the express choice made by the deceased in their will.

Revocation of the will

The provisions made in a will can be revoked even when the testator had previously declared his intention of not revoking these.

A will is automatically revoked by the execution of a new will. It can also be revoked when the testator declares before a notary his intention to cancel or keep any of the provisions of the will.

Divorce does not automatically revoke or affect the validity of a previous will. However, the divorced spouse will not inherit unless the will stipulates otherwise.

Spanish notary (notario)

Notarios are legal professionals and public servants at the same time. In their latter role, they authorise public documents, acts, wills and legislations. Their intervention in public documents is essential, as wills cannot be registered at the wills registry in Madrid unless signed before a notary public. Beneficiaries cannot register property under their name unless the deed of declaration of inheritance has been signed before a notary public. Also, as depositaries of public trust, public records are based on what the notary sees, hears or perceives through their senses, giving rise to the corresponding acts being drawn up which may be of notification and calling for presence (summons), or deposit of goods or money before a notary. Notaries are obliged to keep a protocol containing the original of the deed signed, and they will produce copies at the request of those who granted the deed or to the beneficiaries of the deceased.

Solicitors Accounts Rules

There is no equivalent under Spanish law, and very few of the 84 existing local law societies require clients’ money to be placed in a different account to that of the office.

Statutory legacies

The Spanish rules provide for certain portions of an estate to be compulsorily left to members of the family. Failure to comply with these rules may render a will void, or may give rise to a claim being made against the estate by a “forced heir”. The concept of “forced heirs”, as enshrined in Spanish legislation, may be imposed upon the devolution of the Spanish estate of British nationals.

The following persons are forced heirs:

1. Children and descendants in respect of their parents and ascendants;

2. in the absence of the foregoing, the parents and ascendants in respect of their children and descendants; and

3. the widower or widow, in the manner and to the extent set forth in the Spanish Civil Code.

Two-thirds of the estate of the father and mother constitute the forced share corresponding to children and descendants. However, the parents may dispose of one of the two-thirds which form the forced share, to apply it as betterment in favor of their children or descendants. The remaining third shall be freely disposed of.

Tenancy-in-common

All co-ownership under Spanish law is held under tenancy-in-common, so the deceased’s share of the co-owned property will be part of their estate and will pass in accordance with the terms of their will or intestacy.

Taxable rate

The rate of tax applicable depends on the value of the estate and the degree of kinship between the beneficiary and the deceased.

Trust

The concept of a trust as understood under English law does not exist in Spain. Spanish law does not permit a trust to be created by will. Under Spanish law, it is simply a fiduciary relationship between various parties, which is not properly regulated. Spanish law will regard the trustees as both beneficial and legal owners of the property, and an attempt to create a trust may bring serious consequences as far as death duties are concerned if the deceased and trustees are not related in blood.

Unity of succession

Thishas been adopted as a fundamental principle within the Spanish legal system, so the Supreme Court has clearly established that only one law will be applicable to real and immoveable property of the state of an English national.

V

Voluntary Jurisdiction Act

(15/2015 Act of 2nd July) (VJA) The Act aims to simplify and update procedures in matters where there is no dispute, but the intervention of a member of the judiciary is needed. Matters of voluntary jurisdiction can now be dealt by notaries and registrars, rather than the judiciary. Spanish notaries are legal professionals and public servants. In this latter role, they authorise public documents, acts, wills etc. Only documents executed before a notary public can be accepted by a registry in Spain. Wills, deeds of charge, conveyancing, acceptance of inheritance and other documents are drawn up by the notary public in a specific format in which the notary public declares what is happening before them. Their role in the execution of wills is central, as they witness the date of signature, the content, testator’s signature, their capacity etc. As public records are based on what the notary sees, hears or perceives, the validity and veracity of acts recorded by the notary public is extremely difficult to challenge before a Spanish court. Notaries, registrars and court clerks are now entrusted by the VJA with new areas of work where their technical experience is necessary. Notaries now deal with the solemnisation of marriages, separations or divorces when there is mutual consent, no offspring and non-contested monetary claims. Court clerks will deal with the appointment of the Spanish equivalent of the executor (albacea contador partidor), mutual consent divorces and segregation of unregistered land, amongst other things. It is hoped that allowing notaries to authorise intestate successions in non-contentious probate matters will considerably speed up the winding up of estates in Spain

Wills

Four types of wills are valid in Spain: the holographic will; open will; closed will; and mutual will. These are outlined below.

Holographic will

Anyone who had come of age can make this type of will. It shall be written entirely in the handwriting of the testator, and shall be dated and signed by the testator. It must be proved as genuine before a judge. It is required that the handwriting of the deceased be authenticated by witnesses, who must be the deceased’s closest relatives. Once it is proved, the judge will enforce the will’s contents. The estate shall be distributed in accordance with the provisions of the will.

Open will

This is the usual form of will for most people in Spain. It is made beforeanotary, who shall keep the original document in their files. The notary will send a notification of the will to the central register of wills kept by the Ministry of Justice in Madrid. The notary may request the presence of two witnesses, who can also be required in case the testator is blind or illiterate. A minor, a person who is blind, deaf or dumb, or the spouse and closer relatives of the testator cannot act as witnesses.

Closed will

This is a form of will designed to keep secret its provisions, by putting the documents inanenvelope. The testator shall declare before the notary that their provisions are contained in the envelope, and declare whether they have written them by themselves or whether the will has been written by a third person. The testator must also declare whether they have signed it or it has been signed by a third person for the testator. Thenotarythen seals the envelope and signs it, then files it and send a notification of the will to the central wills register. This will cannot be made by either blind or illiterate person.

Mutual wills

This concept arises when two or more testators agree either to grant reciprocal benefits to each other, or to grant benefits to the same beneficiaries. An express agreement between all the testators is required for a mutual will to be authorised.

Alberto Pérez Cedillo practices in London, where he opened his own practice in Lincoln’s Inn in 2005. He has now offices in Madrid and Marbella. Alberto is also the chairman of the Spanish Branch of STEP and a Vice-Chair of the Private Client Section of the Law Society of England and Wales.