Our firm has ample experience in obtaining the recognition of foreign wills and testaments in Spain and securing the subsequent liquidation of the estate’s assets located in Spanish territory. Typically these assets include real estate, bank accounts and other types of moveable property. This is a complex area of law where both the nationality of the deceased, the country where the testament was granted and other considerations must be taken into account. Tax considerations are also important, as Spanish taxation will usually be applicable with regard to those assets located in Spain. While there are both treaties and European law which may facilitate recognition of foreign wills, United States wills and those from other common law countries (United Kingdom, Canada, Australia, etc.) are often subject to particular procedures.
Wills from the United States (and generally other common law countries) must first pass through probate proceedings in their respective jurisdictions, usually before the state courts (New York, California, etc.). Once a sentence of probate has been obtained, it must be accompanied by the Hague Convention “Apostille” from the respective state authority, usually the Secretary of State or its equivalent. We guide our clients through this process in cooperation with local US or other local counsel to ensure that the final document with its Apostille is adecuate for recognition in Spain.
Once we have the probated will with the Apostille, this document must be translated into Spanish by a translator authorized by the Spanish Ministry of Foreign Affairs and submitted, along with certain other documents to a Spanish notary for validation. Additional documents include, amongst others: powers of attorney to the heir’s counsel, certification from the Spanish registry of wills, bank certification of balances, extracts from the real estate registry if real estate is involved and the heir’s Spanish tax identification number or “NIE”. Once the appropriate documentation has been validated by the notary, the foreign will is given treatment equivalent to that of a Spanish will.
In parallel with the validation process, the foreign heir typically proceeds to officially accept (again, before a notary) the inventoried assets in Spain (and eventual liabilities). Thereafter, and as part of the overall process, our firm assists the foreign client in liquidating the estate in Spain. This liquidation process includes: obtaining funds from bank accounts, transferring real property to the name of the heirs, selling real property and other assets, paying off debts of the deceased, etc. Paramount to this liquidation process is the payment of taxes in Spain. These taxes include income, inheritance and capital gains taxes, all of which must be paid prior to the liquidation of the estate. Where liquid assets are insufficient to pay taxes prior to the sale of real property, special arrangements must be made with the tax authorities to permit such sale to go forward.
