1. Probate and Letters of Administration in Spain
In Spain do not exist Probate and Letters of Administration as such, the Spanish procedure to deal with a deceased person’s estate depends on whether the deceased person had a will granted or not, notwithstanding, in both cases, when all the heirs so agree, the estate may be settled by a Spanish Notary where assistance of a lawyer is strongly advisable.
When the heirs do not agree on the distribution of the deceased’s asset, the Spanish judge will deal with it, where heirs must be duly assisted by a lawyer of their choice.
2. Find out whether the Decedent left a Will or Not
If the decedent left a will which specifies shares in succession and/or the method of estate partition, the inheritors are bound by the statements of the last will, unless they work against the mandatory heirs rights of succession. The testator may have designated a third person to make the estate partition.
If the heirs disagree with the distribution of the assets, they may contest before courts the partition made by the partitioner that the testator had designated.
If the deceased died intestate, the heirs aged over 18 and those who are not of legal age, duly represented, can distribute the assets among them in the form they wish. If they do not seek agreement on partition, they are entitled to request from the judge the designation of a partitioner, who must then make the partition of the estate.
Whether there exist a last will or not, the heirs are entitled to carry out the partition by common agreement. The partition and distribution of the assets must be made before a notary on a public deed.
3. Identifying all Inheritors
When the decedent dies intestate (without a legal will), before distributing the assets among the inheritors, it is necessary to identify them. This task will be carried out by obtaining a “declaratoria de herederos“, which states the name of the inheritors.
When the inheritors are closer relatives, they may request the “declaratoria de herederos” to a Notary from the last place where the decedent lived.
When the inheritors are indirect relatives or friends, they could request the “declaratoria de herederos” to the Courts of the First Instance from the last place where the decedent lived.
4. Dissolution of the Matrimonial Property Regime
The matrimonial property regime is extinguished upon death of one of the spouses, and therefore, before distributing the estate among the inheritors, it will be necessary to set up which assets correspond to the surviving spouse and which correspond to the deceased.
Distribution of the assets is normally stated on a public deed made before a notary. The compulsory heirs may contest this if they consider the distribution has damaged their “legítima” or the third of the assets which legally correspond to them.
5. Gifts
Those gifts that the parents give to their descendants during their lifetime are intended to be an advancement of their corresponding assets. These gifts shall be deducted from their corresponding quotas once the estate partition is made.
6. Registration of Estate
The public deed stating the partition of the estate shall contain all assets, its value, identification of the inheritors, their quota and corresponding assets, and their conformity with this partition.
This public deed entitles the heirs to register their assets under their own name with the local Land Registry. For these purposes, they must have previously paid the inheritance tax and the Capital Gains tax on land.
7. Court Procedure of the Partition of the Estate
If the heirs do not seek agreement on partition, any of them is entitled to request the judge to carry out the partition. They can also request this from the judge when they do not agree with the partition made by the partitioner designated by the testator, or when the agreement is reached according with the testator provisions.
The petition for the partition of the estate must be submitted by a Lawyer and a Procurator. The following documents will be required:
- The deceased’s death certificate.
- The certificate of the the Central registry of Spanish wills.
- Documents about the exixting assets.
- Certification on the plaintiff’s identity proving that he or she is a lawful inheritor.
8. Payment of the Estate Partition Costs
When the partition was made for the benefit of the joint heirs, the costs (Notary fees, Land Registry…) shall be indebted to the inheritance.
When the partition was made for the benefit of only one inheritor, he is liable for the costs he incurred.
9. Payment of the Inheritance Debts
If the creditors are either identified in the will, or they have any legal document which entitles them to collect their credit ( a court decision, bill of exchange, promissory note…), or when the heirs recognize them, creditors may contest the partition of the inheritance until the amount of their credits is either paid or secured.
The inheritors may accept the inheritance in profit of inventory, otherwise they must pay the total amount of the debt even with their personal assets. Had an individual heir paid more than his share according to his quota in the estate, he shall be entitled to request from the others the payment of the proportional part.
10. Sale of the Inheritance Assets
Not until the partition of the inheritance is made before a notary, or until the court proceedings finish and the inheritance tax is paid, can the heirs sell the assets left to them. Meanwhile they can only sell their inheritor’s rights. The purchaser will only acquire the assets when these belong legally to the inheritors.
The heirs can exercise their preferential right to purchase any inheritance assets, individual heir must inform the rest of inheritors that he wishes to sell his hereditary quota in order to enable them to acquire it before a stranger does.
11. How to Revoke Partition Estate
The partition may be rescinded if it does not favour any of the beneficiaries. Notwithstanding, the partition made by the decedent in a will may not be contested, unless it appears to be made in prejudice of the compulsory heirs or it is assumed that this was not the decedent’s will.
The legal term within which the partition estate may be revoked is 4 years since the date the partition is made. The defendant may have to pay an indemnity to the inheritor damaged, or a new partition of the inheritance can be made as a result of this rescission.
12. What about new Assets Appeared after the Partition is Made
In this case the partition already made cannot be cancelled. Another partition of the new assets must be made.
13. What happens if Someone was believed to be a Heir and He turns not to be? What happens if a heir is missing in the list of heirs
When someone was believed to be a heir and he turns not to be, the inheritance partition will be null.
In the event of there being omitted an individual inheritor with no intention, the beneficiaries of the partition shall give him his/her corresponding assets.
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