Where is the inheritance of a deceased relative in Latin America with property in Spain processed: A Practical Case
Spain and Latin America have enjoyed centuries of close, almost fraternal, relations.
The resident population in Spain now exceeds 49 million inhabitants, driven largely by immigration, with a very significant presence from countries such as Colombia, Venezuela, Peru, and Argentina.
This translates into the existence of millions of "mixed" families: parents who grow old and return to their country of origin, children who stay in Spain, and in between, real estate and savings spread between both continents.
In this context, the case of death in Latin America with the only relevant asset being an apartment in Spain, a country where all the heirs still reside, is no longer a rarity, but something very common in notaries and offices.
The question immediately arises:
Can I arrange everything from Spain, or do I need to process one inheritance "there" and another "here"?
The first thing to clarify is that there is only one inheritance . What happens is that this inheritance has two legal scenarios at the same time: the Latin American country where the deceased resided and Spain, where the property and the heirs are located.
Although it is called international succession, in practice it is simply the consequence of a life divided between two worlds.
From the point of view of the Spanish legal system, we are dealing with a succession with a foreign element, and this is where Regulation (EU) 650/2012 comes into play, designed precisely to regulate inheritances with links in several states.
To simplify, this Regulation is based on two central ideas:
- On the one hand, as a general rule, the law applicable to the succession is that of the country in which the deceased had your usual residence at the time of deathThat is, where his center of life really was: where he lived stably, where he had his environment, his interests and his daily life.
- On the other hand, the Regulation allows the testator, during their lifetime, to choose in their will that the law of their nationality will apply to their entire estate. This is known as professio iuris: a choice of inheritance law that provides a great deal of legal certainty to those who live in a country other than their country of nationality.
Latin American countries are not part of the Regulation, but Spain is.
This means that when a Spanish notary or judge has to process the inheritance of an apartment located in Spain, they use these rules to decide which law to apply, even if that law is that of a non-member state, such as any country in Latin America.
In our example, if the deceased lived and died in a Latin American country, the inheritance is normally governed by the law of that country , unless he stated in his will that he wanted to apply, for example, Spanish law or another law of which he was a national.
However, the European Regulation does not simply state which law applies.
It also designs a system so that, whenever possible , the succession is processed in a single manner , without multiplying parallel procedures.
The underlying idea is to prevent each country from "processing its own inheritance" with the multiplicity of procedures and insecurity that this entails.
According to Article 10 of the Regulation, “ If the deceased did not have his habitual residence in a Member State at the time of death, the courts of the Member State in which the assets of the estate are located shall have jurisdiction to rule on the whole of the succession, provided that:
- the deceased held the nationality of said Member State at the time of death.”
- the deceased had previously had his habitual residence in that Member State, provided that, at the time the matter is submitted to the court, no more than five years have elapsed since the change of that habitual residence.”
Thus, the fact that the only asset in the inheritance is an apartment in Spain may allow a Spanish notary or judge to be competent in the proceedings, even if the law to be applied is that of a Latin American country.
That Spanish authority will have to respect and apply the law, but the procedure takes place here.
In practice, the steps to follow are the following:
- The essential documents are obtained from the Latin American country.The following documents are required: the death certificate, proof of a will (if applicable), and, if so, a certified copy of the will, or a declaration of heirs or equivalent document under local law. These documents are legalized or apostilled and translated if necessary to be valid before the Spanish authorities.
- Based on that documentary evidence, In Spain, a notary can authorize a deed of acceptance and adjudication of inheritance by applying the law applicable to the succession.That deed will serve as the title deed, allowing the property to be registered in the heirs' names at the Land Registry. In other words, a significant portion of the inheritance process can take place in Spain, provided the foreign law can be properly proven.
The role of foreign law and originating documents
The fact that the case is processed in Spain does not mean that the country of origin is ignored; on the contrary, it is essential to formally prove the death with a certificate issued there.
Equally important is proving whether or not a will exists , and, if so, its contents, by means of authentic copies or certificates from local registries of last wills, if they exist.
And, when there is no will , it will be necessary to prove who the heirs are according to the legal order of that country: children, spouse, parents, etc.
In addition to the documents, it is necessary to prove the content of the foreign law : how that law regulates succession, what minimum rights the descendants have, whether there is a forced heirship portion or not, how the spouse is treated, what effect certain agreements have, etc., since Spanish legal operators cannot apply a foreign law "by intuition", but need to know it reliably, often with reports from local lawyers or official documentation.
Conclusion: an international, but manageable, legacy
The constant movement of people and assets between Spain and Latin America has made international inheritances an everyday reality.
The fact that a relative has died in a Latin American country and their only important asset is a property in Spain does not mean that you have to face two or three different inheritances or a legal labyrinth.
The solution involves assuming that there is only one succession , rigorously determining which law governs it, and bringing that law and documentation to Spain in an orderly and efficient manner.
The difference between a case that is resolved relatively calmly and one that drags on indefinitely usually lies in looking at the situation as a whole from the beginning: the person, the countries involved, the applicable inheritance law, the available documents, and the notary and registry requirements.
When all of that is put on the same table, inheritance ceases to be a transatlantic enigma and becomes a legally complex matter , yes, but perfectly manageable.
RRYP Global, international probate lawyers.
