In most cases, heirs to an estate resolve probate without requiring court action. Claims are not generally necessary, particularly if the deceased left their affairs in order and made a will in Spain. However, on occasions, the heirs may dispute the terms of the will and need to initiate probate and succession claims.
In this guide, we look at the process for making a probate and succession claim in Spain. As always, we strongly advise that you take professional legal advice whether you are making the claim or find yourself the subject of one.
What is the purpose of probate and succession claims?
A probate trail divides the inheritance between the heirs (ab intestate or testamentary) when they have been unable to reach an agreement on the distribution of the deceased’s assets.
How is the inheritance divided?
The inheritance division, known as particiones in Spanish, is as follow:
- An inventory is made of the deceased’s assets (including debts).
- Each asset is valued and the inheritance tax payable assessed.
- Assets are allocated among the heirs according to the terms of the will.
What is the deceased’s will names an executor?
An executor isn’t necessary for the division of assets but if the will designates an appointed person, they must oversee it.
Who can start legal action for probate and succession claims?
Any designated heir or legatee may initiate probate claims against the terms of the inheritance and/or division of the assets.
Creditors of the deceased may also bring about legal action at their action to ensure that the division of assets takes place with no prejudice to their rights.
Is there a deadline to start probate claims?
No, there is no time-bar for this action.
How is the judical process in a probate or succession claim in Spain?
The legal procedure is as follows:
- The probate claim is initiated at the request of anyone legally permitted to do so. A lawyer and court agent sign the claim, which may take one of two forms:
- A simple division request.
- Intervention of the estate’s assets as a precaution.
- An inventory of assets is made and the Court convenes a meeting with heirs, legatees, creditors and the Prosecutor (if the inheritance involves minors, legally incapacitated individuals or heirs who cannot be traced).
At the meeting, the Court appoints a partitioner to value the estate. The designation is usually by mutual agreement among those present, but if this isn’t possible, a lawyer is appointed by a draw. The Court may also appoint other experts to carry out the inventory, tax assessment and division.
How does inheritance tax affect your income tax declaration?
- The expert’s results are presented in writing within two months of the start of court proceedings, although the Judge in charge may set an earlier deadline. The division allocates assets between heirs while attempting to avoid the partition of assets and excessive fragmentation of properties, for example.
- The parties involved in the probate and succession claim then have ten days to approve or reject the proposed division. If all agree or do not object (tacit consent), the Court approves the division and orders its execution.
- If there is opposition among the heirs to the proposed division, the Court will set a date for a meeting between the partitioner and parties involved in the claim to reach an agreement. If all parties concur, the changes are made to the division and approved by the Court. If there is no agreement, the Judge will continue oral proceedings.
- When the Judge has reached a decision in the oral proceedings, it take effect. However, it is not a matter decided (res judicata) so interested parties may assert still their rights over the adjudicated assets in the corresponding ordinary trial.
What should I do next?
If you wish to make a legal claim against an estate in which you believe you are entitled to a larger share of assets, get in touch with our expert legal team. They will be happy to provide you with the right advice to ascertain the best way to represent and protect your interests.