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Spanish legal advice in plain English

Inheriting in Spain

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About Us

At E&G Solicitors in Spain we have been advising our clients in relation to all
aspects of inheriting in Spain and Spanish assets since 2004.

We specialise in inheriting in Spain and are experts in the
field of succession of Spanish assets, the administration
of Spanish estates, Spanish wills and estate planning, all
aspects of Spanish tax, as well as
contentious matters.
We go the extra mile to help our clients avoid the
unexpected and unwelcome pitfalls often associated with
dealing with an unfamiliar language, legal system and
business culture.
dedicated team has extensive experience and expertise in
helping you to achieve your objectives with minimal stress
and expense.
You can rely on our knowledge and experience of legal
systems and business practices in the UK and in Spain, so
that whatever your goal you are not hindered by cultural,
linguistic or bureaucratic complexities.

With offices strategically based in London, UK, and

Tarragona, Spain, working throughout mainland Spain, the
Balearic Islands and the Canary Islands, our

Contact Us

London Tarragona
17 Red Lion Square Rambla Nova, 127
London 43001 Tarragona
WC1R 4QH Spain

Tel: +44 (0)20 3478 1420 Tel: +34 977 249 960
Fax: +44 (0)20 3070 0020 Fax: +34 977 240 977
Email: info@solicitorsinspain.com Email: info@solicitorsinspain.com

Online
www.solicitorsinspain.com
@EshkeriGrau
www.facebook.com/SolicitorsinSpain
www.linkedin.com/company/egsolicitorsinspain

Other Information
E&G, E&G Solicitors and E&G Solicitors in Spain are trading names of Eshkeri & Grau Ltd, a limited company registered
in England and Wales with company number 07437515, authorised and regulated by the Solicitors Regulation Authority,
SRA number 557474. The Directors are Jonathan Eshkeri (Solicitor in England and Wales; Abogado in Spain) and Josep
Grau (Abogado in Spain).

Copyright © 2021 Eshkeri & Grau Ltd

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Dear Reader

In February 2004 we first conceived of a law firm exclusively servicing the needs of non-Spanish nationals in Spain. It
quickly became apparent that aside from buying property in Spain the greatest need for our services was in the area of
inheriting in Spain.

Certainly since the 1960s and perhaps in smaller numbers before then, northern Europeans have been purchasing
property in Spain, principally for use as holiday homes, but also for their retirement and, in more recent times, for
investment purposes. As undoubtedly you will be aware, the spike in Spanish property purchases by foreign nationals
occurred during the nineties and the noughties. Given that the most common age of the foreign national purchasing
Spanish property is between 45 and 65 years old, people who purchased in the 1980s are now in their 70s and 80s and
in natural course are dying, leaving any Spanish assets to the beneficiaries of their estates.

Anyone who has handled the administration of a death estate will be aware that while not rocket science, the process is
bureaucratic and often long-winded. It follows that the administration of an estate in a country of which you are not a
national, the language of which you do not speak fluently, and with a culture of which you are not wholly familiar, is a good
deal more complex, time consuming and frustrating.

A key tenet of our philosophy is to provide comprehensive information about the work that we are able to undertake, well
before we are engaged to handle a particular matter. It is for that reason that we publish material such as this guide and
the information to be found on www.solicitorsinspain.com.

We hope that this guide will provide you with a solid basis from which to begin the process of inheriting assets in Spain.
Of course, what is written in this guide does not purport to be a substitute for specific advice and assistance in relation
to the administration of a particular estate.

We will be delighted if you decide to engage us to advise and assist you in respect of your matter. Whatever you decide, we
hope that you will be certain to seek independent expert advice from a suitably qualified, knowledgeable and experienced
Spanish lawyer who understands your requirements and with whom you can communicate effectively.

Yours sincerely

Jonathan Eshkeri Josep Grau

Director Director

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Terminology
You will note that although we have made every effort to prepare this guide using plain English, we use a number of
technical legal terms in Spanish and English. Here we have defined the most complex of these terms to help you to
understand the concepts and to avoid any confusion.

Glossary of English Legal Terms

Beneficiary(ies)
The people named in a will as the individuals, or charities, that the Testator/Testatrix would like to inherit their
estate.

Common law
A part of the English and Welsh legal system in which law is derived from custom and judicial precedent (case
law) rather than by statute (Acts of Parliament and secondary legislation).

Estate
All of the property and assets owned by the person who is deceased.

Estate Assets
The individual items that make up the estate, for example, a building or a bank account.

Executor/Executrix
The person named in a will by the Testator or Testatrix as the person whom they wish to administer their estate.

Freedom of testamentary disposition

The rule whereby under English and Welsh law, you are entitled to leave your estate to whomever you please,
without restriction.

Intestacy/Intestate Estate
Where a person dies without having made a valid will in respect of one or more jurisdictions.

Jurisdiction
A system of law, usually connected to a country or nation, for example English law or Spanish law.

Legacy
A gift in a will to a particular person. A legacy can be a specific item, a specific sum of money, or a share of the
estate.

Legatee
The person to whom a legacy is gifted.

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Legal Rights
The rights of an individual as prescribed by law.

Notary Public
A person authorised to perform certain legal formalities in relation to documents for use in other jurisdictions.

Pecuniary Legacy
A legacy of a fixed sum of money. For example “I give to my son the sum of £100.”

Personalty
Assets owned by the deceased which are not realty, for example, a bank account.

Power of attorney
A power of attorney is a document that is signed by one person in which they appoint another person to carry out
certain tasks on their behalf.

Probate
In English law probate can be defined as the official proving of a will, but it is also commonly known as the process
of administering an estate.

Realty
Land or buildings owned by the deceased.

Residuary Beneficiary
A person who inherits all or some of the residuary estate.

Residuary Estate
What is left of the estate assets after the expenses and the pecuniary legacies have been paid.

Succession
The action or process of inheriting an asset, an estate or a title.

Testator/Testatrix
The person who makes a will is known as the Testator if male, and the Testatrix if female.

Trust
A collection of assets held by one person on behalf of another person, for example, an Executor holds assets on
trust for the beneficiaries of an estate.

Vests
When an individual becomes the owner of an asset that asset vests in him.

Will
The document where an individual sets out whom they wish to inherit their estate when they pass away. A will
must be signed in accordance with the law in order to be valid.

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Terminology (cont’d)
Glossary of Spanish Legal Terms
Albacea
Under Spanish law, the Testator can appoint an administrator in relation to their Spanish estate. The role of the
Albacea is similar to that of an Executor, but the assets do not vest in an Albacea.

Certificado de Últimas Voluntades

Wills in Spain are registered with the Spanish registry of wills. This means that when a person passes away in
Spain it is very easy to find their last Spanish will, if they made one. An application is made for a Certificado de
Últimas Voluntades - a certificate of last will. This is a document which sets out the date of the last will of the
deceased as well as the Notary before whom it was signed, so that an application can be made to receive the will
in due course. If no Spanish will was made then a negative result will be obtained.

Declaración de Herederos
Where a Spanish estate is intestate, because the deceased did not leave a will, it is necessary to prove to a Spanish
Notary who is entitled under the applicable rules of intestacy to inherit the estate. This is done in a document
called a Declaración de Herederos.

Escritura de Manifestación y Aceptación de Herencia

The documentation signed in the presence of a Notary in Spain setting out the assets of the Spanish estate and
setting out setting out the names of those who will inherit the estate.

Fiduciario
A person appointed in a Spanish will to be responsible for a Fideicomiso

Fideicomiso
Similar to a Trust in English law - a collection of assets held on behalf of someone else.

Herederos
The beneficiaries of a Spanish estate. The literal translation is “heirs”.

Legítima
The proportion of an estate which ought to be left to the children of the deceased under Spanish law. Failure to
provide for your children in your Spanish will could mean that they are entitled to make a claim against the estate.

Legatarios
The people to whom a legacy is gifted under a Spanish will.

NIE
The Número de Identidad de Extranjero or NIE is a Spanish tax number for non-residents of Spain. You need to
have this number in place in order to engage in

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First steps Applicable Law

Is there a will?
The personal law of
The first question to ask when thinking about inheriting
Spanish assets, or for that matter when considering the deceased is the
succession in general terms, is whether the deceased
made a will. The will may have been made according to
law of the country...
the law of the deceased’s country of origin, or according
to the law of the last place of residence of the deceased,
or perhaps the will was made in the country in which the
Until 17 August 2015 the law applicable to the succession
deceased’s assets were situated. Wherever the will was
of assets belonging to someone who was not a Spanish
made, the first thing to establish with certainty is whether
national was the personal law of the deceased. The
the Spanish assets pass according to the provisions of
personal law of the deceased is the law of the country of
any of the wills made by the deceased.
which the deceased was a national as at the date of his
or her death. This continues to be the law that is applied
It may be that there is an English will made in say December
to the estates of people who died prior to 17 August 2015
1998 and a Spanish will made in 2006. In this example
and so it is a rule that continues to be very relevant and
the Spanish will relates only to the Spanish assets and
will probably remain very relevant well into the 2020s, as
revokes all previous wills to the extent that they relate to
often people’s estates are not administered until some
Spanish assets of the testator. Hence, the English will is
time after their death, for a variety of reasons.
still valid in relation to all of the testator’s assets except
those assets in Spain. When the testator dies it will be his
In relation to the estates of those who died from 17
Spanish will that relates to his Spanish assets.
August 2015 the applicable law is governed by the
provisions of the European Succession Regulation (“the
Using the same example, if the Spanish will made in
Regulation”), known as EU 650/2012 and even better
2006 revoked all previous wills, then the previous English
known as Brussels IV, which provides that subject to any
will would be revoked. In that case the people who were
express statement or clear evidence to the contrary, the
supposed to inherit according to the English will would
law applicable to Spanish estate assets is the law of the
have to rely on the Spanish will, if it applies to assets
country of habitual residence of the deceased. This is a
outside of Spain. It may be that the people who were
law that applies across the European Union, although the
beneficiaries named in the English will are not mentioned
United Kingdom, Ireland and Denmark have opted out of
in the Spanish will, because the testator thought that he
Brussels IV, hence assets situated in those countries are
had looked after them in the English will. It may be that
not affected by the provisions of the Regulation.
the Spanish will only relates to Spanish assets, so that
estate assets situated outside of Spain will be inherited
It follows that the interest in assets located in Spain,
according to the applicable rules of intestacy.
whether land, buildings, money in bank accounts, shares,
vehicles, or any other class of asset, will be transferrable to
Of course, the example can be turned on its head, so that
beneficiaries according to either the law of the deceased’s
the Spanish will is made in 1998 and the English will is
country of habitual residence, or the law of the deceased’s
made in 2006. The English will revokes all previous wills
country of nationality if he made a will stating that. This
and relates only to assets in the UK. That means that the
is important for UK nationals, particularly those from
Spanish will is now without effect and so the beneficiaries
England & Wales, as according to English law a testator
of the Spanish estate will be those family members who
has what we call freedom of testamentary disposition,
have a right to inherit according to the applicable rules of
meaning that one’s assets may be left to whomever one
intestacy.
wishes to leave them. If someone is a national of more
than one nation state, he may choose the law of whichever
As you can see, there really is no option but to consider
of those countries he prefers. According to Spanish law,
the effect of any will made by the deceased before going
the assets of a deceased person must be left at least in
on to think about how we will administer the estate.
part to members of the family of the deceased. This is
known as the law of forced heirship. The rules of forced
heirship differ in the 17 autonomous communities in
Spain.

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Case Study - Sue

Applicable law
- case studies

See page 9 for continued case studies

Sue is a teacher from Brighton, where she lives in

a house which she owns. She is 55 years old and
As Margaret is owns an apartment in Alicante. She bought the
property 5 years ago and over the past five years
a citizen of the has been spending all of her holiday time there.
United States of Three years ago she began to work on a part-time
basis to spend a bit more time in Spain. Sue works
America, it is the in the UK from 1 October to 15 June. She spends
one month in Spain over the Christmas break, one
succession law month in Spain over the Easter break, and two
of the State with weeks in Spain over each half term, leaving the
UK on 16 June and not returning to the UK from
which Margaret Spain until 30 September each year. Sue is in the
UK for 170 days each year, so she is in Spain for
is most closely the other 195 days. Sue is certainly a Spanish tax
connected that resident and is very probably habitually resident
in Spain, as she spends more than 183 days a
will apply. year there. Sue has three adult children. She
wishes to leave a quarter of her Spanish estate to
her children and 75% of it to a named UK cancer
charity. If upon Sue’s death she still owns property
in Spain and remains resident there, then unless
she makes a clear statement in her will that English
law is to apply to her estate, her children will have a
legitimate claim to two thirds of her Spanish estate,
notwithstanding that Sue makes a will leaving only
one quarter of her Spanish estate to her children.

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Case Study - Roger
Roger is from Jersey, but for the past 20 years
has spent most of his time living in Ibiza. Roger’s
partner, Penny, has been living with him for the past
15 years.
They are not married, although Roger is divorced
and has two children from his previous marriage.
Roger has made a will according to the law of
Jersey leaving his Jersey property to his children
in equal shares.
Last year he made a Spanish will in Ibiza leaving
his Spanish assets to Penny. In his Spanish will
he made a clear statement that he is habitually
resident in Jersey, because according to the law of
Jersey he has freedom of testamentary disposition.
Roger returns to Jersey each year for Christmas
and perhaps again at Easter for a few days.
Roger is habitually resident in Ibiza, whatever he
may have stated in his Spanish will, because it is a
matter of fact.
Upon his death his children have a legitimate claim
to two thirds of his Spanish estate.
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Case Study - Margaret
Margaret is from California. Margaret bought a
property in Spain with her husband in 1990. Her
husband died in 2012 and she inherited his share of
the property, so that the property is now registered
in her sole name. Margaret has one child, an adult
daughter, but they are estranged from each other.
Margaret wants to leave all of her Spanish estate to
an international medical charity.
Margaret makes a Spanish will leaving all of her
Spanish assets to the charity and states that she
wants the succession law of California to apply to
her Spanish estate.
According to the law of the State of California there
is freedom of testamentary disposition. Margaret’s
daughter will not be entitled to a share in Margaret’s
Spanish estate according to Spanish forced
heirship rules, because Margaret has chosen to
elect for the succession law of her country of
nationality to apply.
As Margaret is a citizen of the United States of
America, it is the succession law of the State with
which Margaret is most closely connected that will
apply.
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Administering estates where there is a will
Accepting the inheritance in
Spain
If there is a will that governs the succession of Spanish
assets belonging to a deceased person, then there is
a process to follow in order to register the assets in the
names of the beneficiaries. According to Spanish law and
procedure the beneficiaries of the assets of the deceased
have to accept the inheritance, that is they have to take
the positive step of inheriting the assets. By inheriting
the deceased’s assets the beneficiaries also inherit the
deceased’s debts, so that if the deceased owned assets
with a value of €250,000, a property and some money in
the bank, but also owed €120,000 to the bank because
of a loan he had taken out to open a business, the
beneficiaries would have to repay the loan from the money
they received after selling the house and receiving the
money from the bank accounts (unless the beneficiaries
prefer to pay the debts from their own funds). Hence,
a beneficiary of Spanish assets can decide whether to
accept the inheritance or not. The inheritance can only be
accepted as a whole, not in part. If a beneficiary does not
want to accept the inheritance then he can renounce the
inheritance.
In order to accept the inheritance of Spanish assets, all
of the beneficiaries must be identified. It is possible that
the testator left specific gifts to one or more people, such
as a watch, or a vehicle, or perhaps a particular property,
or perhaps the contents of a particular bank account, or
simply and most commonly a specific amount of money.
The people receiving those specific gifts are called
legatees, in Spanish “legatarios”. The beneficiaries who
receive the rest of the estate, what English lawyers call the
residuary estate, are the heirs, in Spanish the “herederos”.
Documentation needs to be prepared and signed that sets
out in detail the following information:
I. The identity of the beneficiaries, together with all of
their personal details
II. The personal details of anyone representing the
beneficiaries (i.e. signing in the name of a beneficiary),
including the legal basis of that representation
III. A precise description of each of the assets to be
inherited, including its value as at the date of death
IV. The proportion in which the beneficiaries are to
receive the residuary estate assets
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The role of the Executor in a
Spanish estate
The situation according to Spanish law is quite different
to the situation according to English law, for example.
According to English law and the law of many common law
jurisdictions, the testator appoints one or more executors.
The executors may also be beneficiaries of the estate.
Under English law the legal interest in the estate vests
in the executors from the moment the testator dies.
The beneficiaries may choose to vary the terms of the
will, or to disclaim the inheritance, but unless they do
either they cannot avoid their ownership of the estate
assets. Whereas in Spain the beneficiaries accepting
the inheritance have direct responsibility for the debts
of the estate, according to English law the executors
have that responsibility (limited to the value of the estate
assets). The executors according to English law also have
responsibility for paying any inheritance tax, sometimes
known as death duties, whereas according to Spanish law
the beneficiaries are liable to inheritance tax themselves.
In many ways the Spanish system of administering a death
estate is more straightforward than the common law
route, as each of the beneficiaries has a direct say in the
way in which property is marketed for sale and the price
at which it is sold. That said, it is possible for a testator
to appoint an administrator in a Spanish will, in Spanish
an “albacea”. The role of the albacea is to administer the
realisation of the assets and the payment of the debts of
the estate, but the estate assets will not vest in him, that
is to say that he will not at any point be the legal owner of
the estate assets as albacea.
Whether an albacea is appointed is a matter for the
testator at the time he makes his Spanish will. The
testator may instead choose to appoint someone who
in Spanish is called a “fiduciario”. A fiduciario is the
person with responsibility for what is called in Spanish a
“fideicomiso”, similar in nature to a trust in English law. He
has responsibility for the assets within the fideicomiso, for
achieving the ends of the fideicomiso, whatever they may
be, and a duty to do whatever he may do in relation to the
fideicomiso in the interests of the beneficiaries. Hence, the
fiduciario has many of the characteristics of an executor
according to English law.
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Documentation required to administer a Spanish estate
Although the strictly legal aspects of the administration
of a Spanish estate may appear to be the most complex
and costly element of the matter, it is often the case
that obtaining the necessary documentation in order to
progress a given matter can cause significant delay and
expense.
The executor or beneficiary of the estate needs to prove
with documentation everything that is being relied upon
in order to inherit the estate assets. That means that
death certificates, birth certificates, marriage certificates,
witness statements, powers of attorney, Grants of
Administration and on occasion affidavits of law must be
obtained, most often outside of Spain, in order to provide
the Spanish authorities with evidence of the facts that
form the basis of each acceptance of inheritance.
Legalisation of documents
Each document issued outside of Spain must be legalised;
it must be sealed or stamped by the relevant authority in
the country in which the document was issued. If the
country is a signatory to the Hague Convention of 5th
October 1961, as are Spain and the UK, as well as 111
other countries, only the Hague Apostille need be attached
to the document to legalise it. If, on the other hand, the
document is issued in China, Cuba, or Iran, as well as a
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Spanish legal advice in plain English
number of other countries that are not signatories to the
Hague Convention, a number of different stamps will need
to be obtained from various local and central government
offices, as well as from the Spanish Consulate as the
documents are to be used in Spain. If a document issued
outside of Spain has not been legalised, the Spanish
authorities will not recognise it as sufficient evidence of
what the document seeks to prove.
Translation of documents
In addition to the legalisation of documents, it is normally
the case that documents issued outside of Spain, invariably
not in Spanish, need to be translated into Spanish by an
official translator. This step is taken after the document
has been legalised. On occasion, the document issued
outside of Spain has been drafted both in English and
in Spanish, which often occurs with powers of attorney
and other documents signed before a Notary Public, as
lawyers, usually with experience of cross-border matters,
prepare these documents. Sometimes death certificates
are issued in various languages, although not in the UK.
The process of obtaining documentation can be the most
drawn out and costly of all, as the information necessary to
obtain the documentation is not immediately forthcoming,
the documentation itself is difficult to obtain for various
reasons, and people often need to attend at the offices of
a Notary Public to sign documentation.
Liability to tax
Whoever accepts the inheritance will become liable to
Spanish inheritance tax, to the extent that inheritance
tax is payable in respect of the asset. Hence, if a Spanish
will provides that the testator’s wife and two children are
to inherit the assets in equal shares, it will be the wife
and each of the two children who may become liable to
inheritance tax in Spain.
The outcome will be different if the testator was from the
UK and the executor named in the English will decides
to accept the inheritance in his name, as he would have
a right to do, and to distribute the net proceeds to the
beneficiaries. In that case the executor would be liable to
Spanish inheritance tax at the same rate as if he were a
beneficiary of the estate.
As you can read in the section “Pitfalls to avoid”, subject
to the circumstances it is often extremely unwise for an
Executor to accept the inheritance, for the very reason of
his liability to inheritance tax.
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Pitfalls to avoid
It is often said that nothing is difficult, once you know
how to do it. That principle applies in large helpings to
the administration of cross-border estates. It certainly
is not rocket science to administer in Spain the estate of
a non-Spanish national, but the differences in business
culture, law, language and experience of this narrow field
of work mean that it is far preferable to seek the advice of
a professional with a track record than to try to find one’s
way by reference to the experience of friends, Internet
searches, or any other media.
The beneficiaries should accept the
inheritance themselves
If you are administering the Spanish estate of a person
who made either an English will, or a will according to
another common law jurisdiction, then the testator will
have appointed one or more executors. One or both of
the Executors may be beneficiaries of the estate also. The
amount of Spanish inheritance tax to be paid is directly
linked to the proximity of relationship between the testator
and the person who accepts the inheritance. The wife and
children of the testator will often benefit from generous
reductions in the inheritance tax payable, whereas
someone with a distant family relationship or no family
relationship at all, may pay considerably more tax than
that payable by a wife or child of the deceased.
Be certain of the entire process
before you take the first step
It is a common error to commence the process of
administering a Spanish estate without first making sure
that you know where you are heading. There are two main
issues. The first relates to the documentation that you may
be asked to provide. Subject to the specific circumstances
of the particular matter some documentation may be
easier or harder to obtain. The second issue relates to
the legal advice you take. Unfortunately, it is typical of
Spanish legal advisers without specialist knowledge of
the administration of cross-border estates to accept
instructions from the client and then make an appointment
with the local Notary, who will request documentation and
information, which the lawyer will then request from his
client. The trouble is that the Notary will not explain the
process to the lawyer, so that when the Notary realises
that another document is necessary he will request it,
a request that the lawyer passes on to his client. If the
document is not available then the matter cannot proceed.
The Notary, while a lawyer, is not acting for the client, so
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Case Study - Cheryl & Frank
Cheryl’s husband, Frank, a British national, died
in July 2017 leaving a house in Alicante, Spain.
Cheryl, also a British national, has three children.
Frank made a will according to English law in
2011 leaving 20% of his residuary estate to his
wife, 20% of his residuary estate to each of his
three children, and a further 20% of his estate
to a national sea rescue charity. Cheryl and the
children live in the UK. In his will Frank appointed
his best friend, Eric, as the Executor of his estate.
Eric is an accountant. Eric appointed a firm of
English solicitors to administer the estate. The
solicitor handling the matter engaged a firm of
Spanish lawyers to help with the Spanish element
of the estate. The Spanish lawyers discovered that
according to English law the legal interest in the
estate assets vests in the Executor and obtained
from a Notary Public in London an Affidavit of
Law stating that the Executor could accept the
inheritance in Spain in order to distribute to the
beneficiaries. The Spanish lawyers prepared the
acceptance of inheritance document according
to the affidavit of law and by way of a power of
attorney granted to them by Eric they accepted
the inheritance in Eric’s name. The Spanish
house was the main Spanish asset. The value of
the house for the purposes of an inheritance tax
calculation is €400,000. It is situated in Torrevieja.
The inheritance tax payable is €170,665.05
provided it is paid within six months of the date
of death. The important point to note is that
had the beneficiaries of the estate accepted the
asset instead of the Executor, the inheritance tax
payable would have been nil.
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Pitfalls to avoid (cont’d)

he is under no obligation to take steps that may be in the
client’s best interests. A great deal of time and expense is
often wasted in this way. You can avoid it by engaging a
specialist legal adviser at the outset. So, ensure that you
know the whole picture at the very start.
Accepting the inheritance at the
minimum permitted value, but with
a view to selling at market value
Anyone who has been involved with the administration of
an estate in the UK will know that the value of the property
as at the date of death of the owner is called the probate
value, which is the value that is used to calculate the total
estate value in order to establish whether and to what
extent the estate is liable to inheritance tax. Hence, the
probate value is the market value of the property as at the
date of death.
In Spain, where for some years the market value of
property has been uncertain, either because market prices
were rapidly increasing until 2008, or rapidly falling from the
same year, the tax authorities of the various autonomous
communities have established a lowest permitted tax
value in relation to the transmission of property, whether
upon purchase, gift, or inheritance. While the market
prices of property were very high, the lowest permitted tax
value may have been considerably less. Since the Spanish
property market crash in 2008 that circumstance is less
common. In fact, it is sometimes the case that the market
value is lower than the lowest permitted tax value.
the inheritance at the market value, or thereabouts. A
capital gain is calculated by subtracting the acquisition
value from the disposal value. The acquisition value will
be increased by reference to the necessary expenses of
the inheritance, such as inheritance tax and a Notary’s
fee, and the disposal value will be decreased by reference
to the necessary expenses of the disposal, such as any
estate agent’s fee and local taxes.
If you represent a charity that has
received a legacy
In the event that your charity is a residuary beneficiary of
an estate or the recipient of a legacy in a will where the
assets received are in Spain, either in part or in whole, it is
important to note that the administration of the estate on
your behalf ought to be handled by a specialist in cross-
border estates involving Spanish assets to be inherited by
charities. We have considerable experience of handling
these matters and above all have learnt that the needs of
charities are very specific, in terms of cost, reputation and
liability.

There are two main pitfalls to avoid. The first relates to

applying too low a value to the inheritance and so risking
a demand for extra tax at a later date, as tax may have
been paid on the market value of the property, which is
below the lowest permitted tax value. In that case a tax
inspector can assess the value at even higher than the
lowest permitted tax value and it would be for the person
subject to the tax liability to argue the point, at some
expense, which would not be recoverable in any event.

The other pitfall in this regard is in circumstances where

the lowest permitted tax value is lower than the market
price of the property. The tendency is often to use the
lower value, because one can get away with it. However, if
the intention is to sell the property shortly thereafter, then
by using a lower tax value one is creating an automatic
capital gain, which is taxable both in Spain and often
according to the rules of the country of one’s tax residence.
In this situation, therefore, it makes good sense to accept

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Pitfalls to avoid (cont’d)
Choice of professional support
In a publication such as this prepared by a firm of specialist
lawyers you would of course expect to find a suggestion
that you use lawyers specialising in cross-border
succession law. This cannot be stressed enough. It is too
often the case that lawyers without any experience, or with
limited experience of this type of work receive instructions
to deal with this type of matter. Notwithstanding that
you have read the information that E&G Solicitors in
Spain makes available on our website, which is fairly
comprehensive, unless one has considerable experience
of communicating with the various private and public
parties involved in the administration of a cross-border
estate, in addition to experience of preparation of the
necessary documentation, an inexperienced adviser is
bound to refer to other more experienced professionals
in order to achieve the desired end. The result is delay,
greater expense, uncertainty and on occasion negligent
advice.
Trust is the essential
ingredient, in addition
to being able to
communicate
effectively with your
adviser.
Sourcing a suitably qualified lawyer is not an easy process.
It takes time and sometimes meetings with various
lawyers until one finds someone whom one is happy with,
both from the perspective of competence in the field, as
well as in terms of trust. Trust is the essential ingredient,
in addition to being able to communicate effectively with
your adviser. Either your Spanish has to be good enough
to communicate with your adviser, or his English (or
perhaps French, German or any other language you may
speak) must be good enough to communicate to you the
complex issues that may arise during the course of the
administration of the estate.
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Spanish legal advice in plain English
Case Study - Mrs H
Mrs H died in the UK in 2004. She died with
assets in the UK and a property in Tenerife,
Spain. She did not make a Spanish will, but
an English will by which she bequeathed her
worldwide assets to a number of individuals
and a number of English registered charities.
Mrs H’s will appointed two Executors, an
English solicitor and a close personal friend.
The Executors approached a Spanish lawyer
based close to the property in Tenerife to deal
with the Spanish estate. The Spanish lawyer
proceeded to sign documentation in which the
Executors accepted the inheritance.
The Spanish tax authorities demanded
inheritance tax on the basis that neither of the
beneficiaries had any family connection with
the deceased, meaning that the inheritance tax
payable was very high, whereas in respect of
the charities it would have been nil. The Spanish
lawyer opposed the tax demand through the
courts, but was unsuccessful. The Spanish
lawyer clearly did not have sufficient knowledge
of cross border succession matters to be able
to administer the estate effectively.
A number of years later we were asked to
resolve the problem, which involved preparing
documentation to rectify what had been done
in 2004 in order that the property could be
registered in the name of the new owners. The
charities did not have an inheritance tax bill to
pay.
 SOLICITORS Spanish legal advice in plain English
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Administering estates where there is no will

How intestate estates differ on page eight of this publication will also be necessary,
other than a will, which will clearly not be available in these
If you are administering an estate where the deceased did circumstances.
not make any will before he died you will be administering
what is called an intestate estate. In England & Wales you
would need to obtain from the court what are called Letters
of Administration. That means that you would prove to the Case Study - Ken
court that you have sufficient authority to represent the
deceased’s estate, to receive the assets, to pay the debts,
and to distribute to the beneficiaries the net estate, that is
the difference between the assets and the debts and other
liabilities, in the proportion in which the beneficiaries have
a right to receive that amount according to the applicable
rules of intestacy.

In Spain there is a two-stage procedure in relation to

intestate estates. The first stage is called the “Declaración
de Herederos”, or declaration of heirs. It is at this stage
that the people with a right to inherit prove their right to do
so. So, if someone dies owning property in Spain leaving
only a wife and no children or any other living family
members, it will be the wife who will inherit the estate
Ken died in Spain in 2014. He was separated from
(according to the succession law of any jurisdiction). She
his wife, with whom he had two adult daughters,
will have to make a declaration of heirs proving that she
but they had not got round to formalising a divorce.
was the wife of the deceased and that accordingly she has
At the time of Ken’s death he lived with his partner,
a right to inherit the entire Spanish estate, because there
and he had a good relationship with his partner’s
are no other family members to inherit.
son, who saw him as a father figure. At the time
of his death Ken owned, in his sole name, a villa in
Once the declaration of heirs has been signed by a Notary
Barcelona, Spain. Ken did not leave a will in the UK
and by at least one of those with a right to inherit, and
or in Spain, meaning that his estate was intestate.
after a prescribed period of time has passed (currently
The people entitled to inherit Ken’s estate were
30 days), the heirs may accept the inheritance in the way
his daughters and his wife, because although Ken
described on page seven of this publication.
and his wife had separated many years ago, they
had not divorced. Ken’s partner and her son were
Documentation required to not entitled to receive anything from the estate.
administer an intestate estate In order to prepare the declaration of heirs, it was
necessary to obtain a marriage certificate for
Ken and his wife, as well as birth certificates for
In terms of documentation, if only the spouse is to inherit
both of his daughters and a witness statement
according to the applicable intestacy rules then it will
signed by two individuals stating that Ken had no
be necessary that she was indeed the spouse of the
other children. It was necessary for the Hague
deceased and that there are no children of the marriage
Apostille to be applied to all documentation. In the
with a right to inherit. It will also be necessary to show
end, Ken’s wife decided that she did not wish to
that the deceased had no other children with a right to
receive anything from his estate, as did one of his
inherit who survived him. Hence, a marriage certificate
daughters. This meant that when the time came
will need to be obtained, as will the sworn declaration of
to sign acceptance of inheritance documentation
two witnesses as to the facts. If children are to inherit then
both Ken’s wife and his daughter were required to
their birth certificates will be required also. All documents
sign a document renouncing their interest, while his
obtained outside of Spain will need to be legalised and
remaining daughter signed a document accepting
also translated into Spanish if the notary in question is not
the inheritance.
able to understand the English Language, as explained on
page eight. Of course the other documentation set out

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Realising the estate assets
Estate assets can be divided into two main categories,
what lawyers call realty and personalty. Realty, also
known as immovable property or real estate, refers to land
and buildings of any description. Personalty, also known
as moveable property, refers to anything that is not realty,
so money, shares, vehicles, financial instruments, etc.
Realty
In order to realise realty we need to market it for sale and
sell it. Hence, it is vital to engage an estate agent who is
going to value the property at a price at which it will sell
and who either has sufficient footfall through his premises
or is dynamic enough to attract sufficient numbers of
potential purchasers to your property, to be able to secure
a sale within a reasonable period of time. Many people
have read numerous horror stories of Spanish estates
taking years to wind up. This is often because of the
incompetence of both legal advisers and estate agents.
municipal tax is
calculated based on
the notional increase
in value of the land
on which the property
is built
Most of the expenses relating to a sale of real estate in
Spain fall to the purchaser, but there is a municipal tax that
needs to be paid by the seller. The local council charges
a municipal tax each time there is a transmission of the
property. Hence, this tax is payable in relation to the
inheritance of the property and then again upon the sale of
the property. The municipal tax is calculated based on the
notional increase in value of the land on which the property
is built (or a proportion of it in the case of apartments)
from the date of the most recent transmission.
16
Spanish legal advice in plain English
It follows that if the property was purchased in 2000 and
the owner died in 2014, but the property was not sold until
2016, there will be a municipal tax payable in relation to
the notional increase in value of the land between 2000
and 2014 and a further municipal tax payable based on
the increase in value of the land from the date of death
until the date of sale in 2016.
It is essential that whomever you engage to sign
documentation on your behalf in respect of the sale of
Spanish property, you make certain that you trust that
person implicitly as he will be receiving the proceeds of
sale and very probably paying them into his bank account
before onward transfer to you.
Personalty
The most common personal assets that we recover
in Spain are funds in Spanish bank accounts. In order
for a bank to release funds, or for that matter for any
organisation to release funds for any reason, whether the
proceeds of an investment product, or a life assurance
policy, or the proceeds of sale of a share portfolio, the
person releasing the funds will want to see the document
signed by the beneficiaries accepting the inheritance and
they will also want to see that the document has been
stamped by the tax agency with responsibility for the
inheritance tax in question. The person at the bank or other
organisation who receives the documentation will send
it either to an in-house legal department, or to external
lawyers to be checked. Once it has been checked and
approved, someone at the bank or other organisation will
have to authorise the transfer of funds. This process may
take some months to complete. In addition to the normal
delay caused by often overly bureaucratic systems, there
seems to be a reluctance to release funds, particularly by
Spanish banks when it is plain to them that they are losing
a client, so to speak. Hence, patience is sometimes the
most important attribute for a beneficiary to have in these
circumstances, notwithstanding the pressure that any
competent legal adviser will bring to bear to ensure that
funds are released as soon as possible.
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Case Study - Sarah
Sarah passed away in 2016 owning one asset
in Spain, a villa in Marbella. She left it to her
children who sold it in 2017. Sarah originally
purchased the villa in 1987 in joint names
with her husband, David. David passed away
in 2010 and Sarah accepted the inheritance
of David’s 50% so that the property was then
registered in her sole name. Municipal tax was
payable by Sarah on the increase in the value
of the land that she had inherited (David’s
50%) between 1987, the date of acquisition
by David, and 2010, the date of David’s death.
When Sarah’s children inherited the villa they
had to pay municipal tax on the following:
(i) the increase in value of 50% of the land
between 1987 (when Sarah acquired the villa)
and 2016, the date of Sarah’s death; (ii) the
increase in value of the other 50% of the land
(inherited by Sarah from David) between 2010
and 2016; and (iii) the increase in value of all
of the land between 2016 (when Sarah died)
and the date of sale.
What our clients think
Upon the death of my late brother, Jonathan Eshkeri guided
me through the extremely complex workings associated
with winding up my late brother's estate in Spain. He
died intestate, and Jonathan worked tirelessly and with
great good humour, dealing with the Spanish Courts and
also with the sale of my brother's house. I always have
had great confidence in him and have no hesitation in
recommending E&G Solicitors in Spain unreservedly.
~Tim Seely, Norfolk
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Spanish legal advice in plain English
We appointed E&G Solicitors in Spain as our Spanish fiscal
representatives to administer all Spanish estates and
assets left to us in Wills. We find their approach pragmatic
and helpful. They deal with matters promptly and with
professionalism and have enabled us to overcome
complexities in the Spanish legal system that we struggled
with prior to their involvement. We value our association
with E&G Solicitors in Spain and I have no hesitation in
recommending them.
~Legacy Manager for a major English registered charity
Upon the death of my sister I needed help winding up her
estate. She had been living in Tenerife for 30 years and had
made a Spanish will, so I knew I needed expert Spanish
legal advice. I decided to instruct E&G Solicitors in Spain
after meeting with Jonathan Eshkeri. It was that personal,
face-to-face contact, and knowing that they have offices
both in the UK and in Spain, that gave me the confidence I
needed to know that they could handle my case. Jonathan
was able to explain the Spanish inheritance tax process
to me clearly, and knowing Josep Grau was based in
Spain and that he possessed the local knowledge and
connections needed to communicate effectively with the
tax and probate offices in Spain to make things happen
was great. E&G did a first class job dealing with my sister’s
estate, offering a professional but personal service.
~Gerry, Hampshire
E&G did a first class
job dealing with my
sister’s estate
E&G Solicitors in Spain could not have done more to put
my mind at ease. The fact that they have solicitors in Spain
and the UK who are bi-lingual and have knowledge of the
legal system over there is great. I couldn’t recommend
them highly enough.
~Tony, Derbyshire
E&G Solicitors in Spain were professional, knowledgeable,
approachable and efficient. We had absolute trust and
confidence that they would do a good job, and they did.
Considering the company is based in both England and
Spain, communication was seamless. All calls and emails
were dealt with swiftly, and we felt they listened very
carefully to us. E&G Solicitors in Spain are professional,
person-centred, attentive to detail and pro-active. We
would definitely recommend them.
~Julie, Chorlton
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Spanish legal advice in plain English

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