As a previous matter, it must be pointed out that in Spain there are various regional (“autonomous”) succession rules rather than a single nationwide rule. In particular, there are specific succession rules in the autonomous regions of Catalonia, Navarre, Aragon, Basque Country, Balearic Islands and Galicia. In the rest of the country, the rules in the “general” Spanish Civil Code apply. This is very important to be taken into consideration, because the regional rules do not only contain slight differences with regard to the general Spanish rules, some of them are fully different succession systems.
Deciding which succession rules apply in each case will depend on the deceased's region of birth, unless later on he/she has lived in another region for a continuous period of ten years or more, or for a period of two years or more if he/she has expressly stated that this is the desired legal region of residence.
It is considered that intestate succession arises if a will has not been made or, if one has, it is deemed null and void. Whether a will is deemed null and void will vary according to the specific regional rules.
Notwithstanding the specific regional differences in the rules, broadly speaking, the procedure to be followed in the case of intestate succession is as follows: the heirs must obtain a statement from a competent authority (notary or court), make an inventory of the deceased's estate, and accept or refuse the inheritance.
In the case of intestate succession, the closest relatives will be entitled to inherit, with the children and direct descendents of the deceased taking priority over other family members. The general order of priority is as follows: children and descendants, parents and ancestors, spouses, other blood relatives and public bodies (state, regional or other).
Despite the fact that each region has its own rules, in general there exists the idea of forced heirship whereby children and descendants come first and, in their absence, parents and ancestors.
The part of an inheritance that must go to forced heirs varies widely from one region to another, ranging from rules under which there are no forced heirs to others whereby two thirds of the inheritance must go to the forced heirs.
Likewise, the rights of spouses also differ in each region, although most of them make provisions for the usufruct of the deceased's estate. However, the scope of these rights varies greatly as they may either apply to the whole of an estate or only part of it. In the latter instance, this will depend on the people who have a share in the estate with the
Spanish and regional succession laws recognise a great variety of wills, although the most common are those drawn up before notaries and holographic wills, both of which have special characteristics, which differ in the country's various legal systems.
The content of wills drawn up before a notary can be revealed to the Notary or can be kept secretly. In case of a “revealed” will, this is drawn up by a notary's office and signed by the testator before the notary. In case of a secret will, the will is drawn up by the testator and afterwards delivered to a notary in a sealed envelope or it is sealed before the notary in person.
In wills which content is revealed to the notary, the notary not only takes part in writing it and keeping it on the notary records, but also assesses whether the testator has the sufficient legal capacity to make a will, and also regarding the proper legal content of the will. This is the most recommendable way to grant a will, as the Notary’s advice avoids the risks of nullity of the will. That is why most of wills are granted in this way in Spain.
Holographic wills must have been written in the hand of the deceased and do not require the help of a notary nor must they necessarily be kept on notary records. Such wills must be dated and signed by the testator. In the case of holographic wills, certain procedures must be carried out to authenticate them subsequent to the deceased's death.
Special wills may be made under certain circumstances, such as the testator being abroad, at sea or at the risk of death. In some cases, subsequent procedures must be carried out to authenticate such wills. These wills are in practice very seldom used.
Inheritance tax and gift tax have not been abolished in Spain, although in some autonomous regions the effective rate to be paid after reductions is very low (it can be less than 1%).
The autonomous regions of Spain are authorized to set their own tax rates within certain limits. If a region fails to set its own rates or the taxpayer or the deceased is a non-resident, the progressive rates are:
On the amounts resulting from the application of the above mentioned rates, variable surcharges shall be applied depending on: i) the amount of the beneficiaries’ net wealth before the receipt of the inheritance or gift and ii) their family relationship with the deceased or the transferor.
In the case of inheritances, the taxable base is reduced by the family allowances foreseen in the law. There is also a deduction of 95% on the value of: the family business, the “qualified holdings” shares and the permanent residence of the deceased.
In the case of gifts, the family allowances and the 95% deduction on the value of permanent residence do not apply. Furthermore, the 95% deduction on the value of a family business and qualified holdings shares only apply if, among other conditions, the transferor is over 65.
This information was compiled by Bellavista Legal.