UPDATED: 15th July 2021
Applying for Probate in Tenerife
So a relative or friend has died in Tenerife. But how do you sort out the paperwork and administer their estate?
The first step is to obtain the Death Certificate (Certificado de Fallecimiento). This will typically be issued to the next-of-kin promptly following the death where there are no complications. However, in more complicated cases (e.g. where an autopsy or inquest must take place), the Death Certificate may have to be issued by a Judge or Registrar at a later date.
If issued in Spain, the Death Certificate will obviously be available in Spanish, although the standard version contains a European language translation matrix / index, which is generally accepted throughout the EU.
However, if the death occured overseas (e.g. in the U.K. or Ireland), the death certificate will obviously be issued in English. To be accepted in Tenerife, it must then be apostilled/legalised and then officially translated into Spanish.
The next step is to establish what Wills the deceased left. The obvious first question is whether the deceased left a Spanish Will. The next of kin or friends might already know the answer to that question. However, an official Certificate of Last Will (‘Certificado de Ultimas Voluntades’) will answer this question (and must be applied for as a formality in any event). Any Spanish Notary can apply for the certificate upon production of the correct form of Death Certificate plus the original I.D. of the person applying. The notary will typically not charge for obtaining the Certificate on the assumption that he or she will get to handle any subsequent probate application. However, they may charge for the certificate if you ask them to release it to a different notary. The turnaround time for the search to the Registry in Madrid typically takes about 4 weeks (as of July 2021).
Once the Certificate of Last Will has been obtained in Spain, it will reveal whether a Spanish Will exists. If so, the relevant notary holding the original Will can be contacted and the Will released. Alternatively, if no Spanish Will exists, but there is a foreign Will (e.g. UK or Irish Will) which on its wording, is capable of administering assets in Spain, then Spanish probate can proceed using that foreign Will, but only AFTER first obtaining probate in that other country. Also, when using an English or other foreign Will, The resultant English or other Probate Certificate will have to be legalised/apostilled in that country and officially translated into Spanish before the application for probate in Tenerife can commence.
In the event that there is no valid Will in any country capable of administering the Spanish assets, then the deceased will be deemed to have died ‘intestate’ (‘ab intestato‘). In such event, there are fixed rules governing how the deceased’s assets must be distributed and to whom. In most cases, the starting point is any surviving spouse, and any direct children.
Another potential complication is where one country’s Will inadvertently revokes or limits a Will made in another country. This is surprisingly common, despite the Wills typically having been prepared by supposedly qualified lawyers. A quick check of all Wills made by the deceased is therefore highly recommended before proceeding with an application for probate in any country.
If, as is recommended by TENERIFE SOLICITORS, the deceased left a separate valid Will in each country that he or she held assets and there are no clashes between those Wills, then separate probate applications can commence independently and immediately in each relevant country, without waiting for completion of probate in any other country.
The next question is, which national law should be applied to distribution of the deceased’s assets? For deaths that took place prior to August 2015, Spain would always apply law of nationality (i.e. for an English deceased, English law will be applied to distribution of his estate).
However, for any death that has occurred after August 2015, the situation has become slightly more complicated. EU Regulation 650/2012 (which came into force on 17th August 2015) now dictates that for all Wills, the testator must specify whether he wishes for his national law to apply, or alternatively the law of the country in which he is making a Will (in the case of Tenerife, Spanish Law). If the testator fails to specify that choice in the Will, then the local law will apply by default. This new rule applies even if the Spanish Will was made some time ago, so anyone who made a Spanish Will prior to August 2015 is strongly advised to review the Will and update it if necessary.
Once the applicable law has been ascertained, the entitled beneficiaries specified by that law can proceed to apply for probate, then make the necessary Inheritance Tax Return Declarations and then distribute the assets. We say ‘beneficiaries’, because an Executor (Administrador / Albacea) is not a legal requirement in a Spanish Will. They are usually only appointed where the deceased’s estate is particularly complicated (e.g. extensive business interests) or where a family feud over the assets is anticipated.
It should also be noted that the Inheritance Tax Declarations must be filed and paid individually by each beneficiary (unlike in the UK, where tax is paid on the entire estate BEFORE distribution). The tax calculation differs person to person, as it is calculated on a formula based on the beneficiary’s proximity of relationship to the deceased and even the beneficiary’s existing personal wealth (e.g. where there are two sons sharing the estate 50/50, a millionaire son will pay more inheritance tax than a destitute son).
This is obviously different to other countries such as in the UK, where the executor files an Inheritance Tax Return for the entire estate and pays any applicable tax as a whole.
Given that each beneficiary must be actively involved in a Spanish probate application (unless they expressly revoke), this can generate far more paperwork and bureaucratic steps. Each beneficiary must give any acting lawyer copies of various documents plus a Power of Attorney to act on his or her behalf and must be able to pay any applicable Inheritance Tax upfront BEFORE receiving their share of the assets.
As a result, TENERIFE SOLICITORS strongly advises clients making a Spanish Will to think about the effect of their proposed wishes as far as possible so as to take into account the availability of beneficiaries and their ability to deal with such administration or payment of tax. Gifting small amounts to a large number of non-Spanish charities is also strongly discouraged for the same reason.
For more information or assistance with making a Probate Application, or in making or reviewing your Spanish or English Wills, contact TENERIFE SOLICITORS, Tenerife’s only authorised English Solicitors and Spanish Abogados. The firm has over 10 years experience in dealing with probate applications in both England and in Tenerife. The firm is fully familiar with the requirements of foreign expats in Tenerife and can handle probate applications in either or both countries seamlessly.