We are going to review the main issues that arise when we intend to register an inheritance in the Land Registry.
Firstly, let's look at what documentation we have to present and where.
We must present the documentation at the Registry Office corresponding to the place where the deceased's estates are located. If you have estates in different mortgage districts, you must present them at all the competent Registries depending on the place where the estates are located.
In order to prove the death of the deceased, who appears as the registered owner of the property in the Register, the death certificate must be presented. In fact, if all we want to do is to cancel a life usufruct held by the deceased, it is sufficient to present a request, with the signature authenticated by a notary or ratified before the Registrar, accompanied by the death certificate and the inheritance tax liquidation.
Next, we must check whether or not the deceased has made a will. If there is a will, the authorised copy of the last will of the deceased must be presented. To prove that it is the last existing will, a certificate from the General Register of Last Wills and Testaments must be presented, which determines the date of the last will and testament or that there is no record of the existence of a will. As stated in Article 78 of the Mortgage Regulation, the certificate is not considered contradictory if it is negative (i.e. if there is no proof of the existence of a will) but a will of the deceased is presented, or if there is proof of a date of the last will but a more recent one is presented.
If the will shows that there is only one heir, the inheritance can be registered by submitting an application with a notarised or ratified signature before the Registrar or with an electronic signature through the electronic filing portal of the Association of Registrars (www.registradores.org), without having to grant a deed of partition.
In other cases, if there is more than one heir or legitimisee, a deed of partition of inheritance must be executed before a Notary Public, in which, with the intervention of all the interested parties, all the assets that make up the inheritance are listed, as well as all the debts and charges, so that the valuation, distribution and adjudication can be carried out among all those called to the inheritance. The deed of partition of inheritance must necessarily be attended by the heirs, the legatees and the legatees of aliquot parts.
Lastly, documentation must be provided to prove payment or deferral of inheritance tax and, if the inheritance includes urban real estate, payment of the municipal capital gains tax (Impuesto Sobre Incremento de Valor de los Terrenos de Naturaleza Urbana).
For transnational successions, and for the Member States of the European Union, the European Succession Regulation provides for the European Certificate of Succession, which certifies who has the status of heir, legatee or administrator of the estate in another State, and does not require it to be accompanied by the death certificate or will. It should be borne in mind that the authorised copies of the European Certificate of Succession are valid for six months from the date of issue, unless extended.
It is necessary to check whether we are dealing with a holographic will. This is one that the testator writes and signs himself, without the presence of witnesses.
Only persons of legal age can make a holographic will. It must be written and signed in the testator's own handwriting, stating the year, month and day in which it is made.
Foreigners can make a holographic will in their own language.
Spaniards may make a holographic will outside Spain, even if the laws of the country where they are located do not admit it.
Whatever the case may be, once the testator has died, it must be presented to a Notary within the following five years, so that he/she can draw up a protocol of probate.
In addition to what we have indicated with regard to the holographic will, a will can be made before a Spanish diplomatic or consular official abroad. A will that is made in accordance with the formalities of the country in which I am present is also valid.
It should be borne in mind that wills can be made from the age of 14. To make a holographic will it is necessary to be 18 years old.
A will can be made if, in the opinion of the notary, he or she has sufficient capacity to understand and express the scope of his or her dispositions at the time of making the will. If the will was made before the disability, it is perfectly valid. A will is a very personal act and cannot be left to the discretion of a third party.
In the event that this circumstance is proven, a will granted with violence, fraud or fraud is null and void.
Likewise, if a person with the right to inherit, using violence, fraud or deceit, prevents a person from freely granting his last will, he is deprived of his right to inherit, without prejudice to the criminal liability incurred.
Finally, and in the event that there is no will, intestate succession is opened, which will correspond to the relatives of the deceased (descendants, ascendants and collateral relatives up to the fourth degree), to the widow or widower and, in the last instance, to the State.
In order to determine the persons entitled to inherit, a declaration of heirs must be drawn up before a notary.
