S panish probate: What is it and when is it needed?

What can we do when a person dies owning an estate in more than one country (i.e. the UK and Spain)

This is a fairly common situation, where a foreign person dies owning some type of estate (property, bank account, assets, company shares, etc.) in Spain. In such a situation:

How is the process managed and where is the application for probate done?

Let’s see a fairly common example of the above:

Mary passes away in 2020 in a hospital in the UK after spending her last days with her closest family and relatives. She was a UK citizen although for the past ten years of her life was living in the Canary Islands where she had her domicile.

She owns property both in Spain and the UK.

Mary made a will in the UK appointing executor her eldest son and leave all her estate to the four of her descendants who reside in the UK and Australia.

What are the steps to get Mary’s estate transferred to her four sons?

But before anything, let’s clarify, what is probate?

Probate is legal the process where a person obtains permission to deal with the decedent’s estate. Generally speaking, if a person holds interests in several countries application for probate must be done before the authorities in each country.

Following the above we must distinguish two scenarios:

1. Estate in the UK
2. Estate in Spain

ESTATE IN THE UK

Grant of Representation

The term grant of representation, which includes the grant of probate, is the document issued by a probate court in the UK which gives the executor capacity to manage the decedent’s estate.

This, in our example, would be mandatory for the executor to liaise with Mary’s estate in the UK; identify the will, check for the executor, locate and value the estate, pay the IHT and distribute the estate according to the will of the testator.

But, can the grant of representation issued by the probate court in the UK be valid to change the ownership title of Mary’s property located in the Canary Islands?

Unfortunately, succession laws in Spain have different requirements than those set out by the UK regulation thus, once the estate is distributed in the UK and because there is no other will than that Mary made in the UK, the executor must apply again for probate in Spain to distribute the estate located in the Canary Islands.

ESTATE IN SPAIN

Applying for probate in Spain

In the example we are revisiting Mary did not make a will in Spain, that is why the executors, after applying for probate in the UK, must apply again for probate in Spain.

At Legaliaspain we emphasize the importance of making a will in Spain as part of an estate planning strategy given that succession laws in Spain attribute mandatory heirship quotes of the estate to the decedent’s descendants.

Application for probate in Spain is not done before a probate court but a notary public, in this act:

1. The content of the grant of representation, which previously would have to be translated into Spanish by a sworn translator, will be reviewed, heirs, beneficiaries and estate referred in the will identified;
2. Verification that the persons who hold any rights to the decedent’s estate (named in the will and according to the Spanish succession regulations) are present or duly represented;
3. The decedent’s estate located in Spain will be listed;
4. The total value of the decedent’s estate in Spain declared;

This process is often done through a solicitor who will represent the heirs and beneficiaries before the notary public through a power of attorney.

Once the probate is completed IHT tax must be paid to the Spanish tax authorities’ and from this moment, change of the ownership in the title deeds of the property located in Spain can be done.

Inheriting property in Spain while living abroad

Most of the enquiries we receive share a common situation: a relative has passed away, they owned a property in Spain, usually on the coast or in the islands, and the heirs live in the UK, Ireland, the US, or elsewhere in Europe. None of them have set foot in Spain in years, or at all.

This distance adds a layer of difficulty that a purely domestic inheritance does not have. Here are the questions we hear most often from heirs in this exact situation.

Do I have to travel to Spain to inherit the property?

No. The entire probate process, from identifying the estate to signing the deed of acceptance before a notary, can be handled through a power of attorney granted to your solicitor. This can be signed at a Spanish consulate in your country of residence, or before a local notary with the document later apostilled, avoiding the need to travel to Spain at any point.

How is inheritance tax calculated if I don’t live in Spain?

Inheritance tax (IHT) in Spain depends heavily on where the heir is tax resident, not where the deceased lived. Non-resident heirs are subject to state-level rules, while residents may benefit from regional deductions that can be substantial in some autonomous communities. Getting this assessment right before filing can make a significant difference in the final tax bill.

What happens if I don’t want to keep the property?

Many heirs in this situation have no intention of using the property themselves, and simply want to sell it and receive the proceeds. This is entirely possible, but the property must first be formally inherited, registered in the heirs’ names, and the corresponding taxes settled, before any sale can take place. We regularly assist clients through the full path, from probate to the eventual sale, coordinating estate agents and buyers on their behalf.

Could Spanish forced heirship rules affect what I’m entitled to?

Possibly. Spanish law can reserve a fixed portion of the estate for children and, in some cases, the spouse, regardless of what the will says, a concept known as legítima. This surprises many foreign heirs who assumed the will’s distribution would apply exactly as written. We explain in detail how this works, and when it can be avoided through proper planning, in our guide to forced heirship in Spain.

How long does it take from start to having the property in my name?

For a straightforward case, with the will and documentation in order, the process typically takes between two and four months. Cases involving multiple heirs, missing documentation, or estates without a will tend to take longer.

Further questions regarding probate and inheritance in Spain

Probate in Spain usually triggers many questions to the heirs and the descendants who in some cases reside overseas.