Sample Declaración de Herederos

Information and questions about the Law in Spain and Andalucia.
aaronsm
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Sample Declaración de Herederos

Postby aaronsm » Sun Aug 28, 2011 9:01 pm

Hello all,

Background:
My sister-in-law and her husband were permanent residents in Spain. When they travelled to their home country, he died (of a terminal illness) there. My sister-in-law has since then never returned to Spain. By the time of his death (over 6 months since their departure from Spain) their Spanish residencia had already elapsed.

She is now trying to liquidate his bank holdings in Spain. She has been asked to produce a notarial “Declaración de Herederos” with supporting documents. He wrote no will, and they are both of foreign nationality. So the version needed is one applicable to intestate foreigners (abintestado, extranjero).

I am posting here to seek help on the form and content of such a Declaración. A template or a sample of the document furnished in the case of a foreign national would be perfect (with personal information blanked out). Will be grateful for any and all help! Thanks!

ps: A sample of one produced by a Spanish national will also be useful.

Jool
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Re: Sample Declaración de Herederos

Postby Jool » Wed Aug 31, 2011 2:58 pm

Have you asked the Spanish consulate in her home country? Its quite a technical questions and in the absence of David Searl ............I guess you´be googled already in spanish?

El Cid
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Re: Sample Declaración de Herederos

Postby El Cid » Wed Aug 31, 2011 3:55 pm

aaronsm wrote:
My sister-in-law and her husband were permanent residents in Spain. When they travelled to their home country, he died (of a terminal illness) there. My sister-in-law has since then never returned to Spain. By the time of his death (over 6 months since their departure from Spain) their Spanish residencia had already elapsed.



If they were permanent residents in Spain then they would also have been classed as tax resident.

Just because they left Spain that will not necessarily change. Just because the "residencia" expired may not be relevant.

If you spend more than 183 days in Spain in one calendar year you are classed as tax resident for the whole of that tax year. So you can see that his tax status depends on the actual dates involved.

If he is deemed as tax resident then the Spanish rules regarding inheritance tax will apply and also the rules about intestacy.

This looks like one for a lawyer.

Sid

aaronsm
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Re: Sample Declaración de Herederos

Postby aaronsm » Wed Aug 31, 2011 9:23 pm

Thank you both, Jool & Sid. Very useful & pertinent points.

The point about tax status in Spain (vis-a-vis residencia) is a very good one. In my case, the (now) deceased person left Spain in September or October of 2004, and died in November of 2005- the next year. His wife (my sister-in-law) left Spain earlier than him even, and she hasn't returned to Spain since.

By the way of proof, she has her passport and stamps of entry on it. We don't have access to his passport unfortunately.

She has appointed a friend in Spain (a naturalized Spanish national) as her power of attorney. He has consulted his lawyer and sent us a sample copy of the Declaracion made by a Spanish inheritor of a deceased Spanish national. I haven't been able to get a sample of one made by a foreign national upon death of another (with movable assets in Spain).

She reported to the bank in Spain shortly after his death, but it has taken us this long just to learn about procedures, appoint power of attorney in Spain, obtain some key documents in the foreign country, and so forth. Language differences, translations and required legalizations of documents by multiple entities in both countries have retarded the pace of progress.

AS

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DavidSearl
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Re: Sample Declaración de Herederos

Postby DavidSearl » Thu Sep 01, 2011 10:34 am

FROM DAVID SEARL

FOR AARONSM

A man has died. We shall suppose that he is a UK citizen who died in the UK. It would be the same for any other country. He left no will. Therefore the people who believe they are his inheritors go to the Probate Court and apply to be declared as inheritors. The Probate Court, or similar, examines all the documents and declares, say, the surviving wife as sole inheritor. She is then able to take possession of the assets in the UK or other home country.
If the deceased also has assets in Spain, the inheritor must go to the Spanish Consulate in her home country with the court order which declares her as sole inheritor. She then obtains a legal translation of this order which enables her to go the Spanish court which will declare her the sole inheritor in Spain and she can then take possession of the assets in Spain.
The Consulate will explain the exact procedure. None of these documents is a form which you fill in. They are all court-issued documents.
With any luck at all, you will find that inheritance tax has lapsed by now, five or six years later.
If the lawyer of the holder of the Power of Attorney in Spain has not explained this process clearly to you, perhaps you should consider finding a lawyer who can.
Good luck with it, David Searl
You and the Law in Spain

aaronsm
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Re: Sample Declaración de Herederos

Postby aaronsm » Thu Sep 01, 2011 6:36 pm

Thank you, David!
AS

aaronsm
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Re: Sample Declaración de Herederos

Postby aaronsm » Thu Sep 01, 2011 7:30 pm

Hello agai David,

Just to get clarification on a procedural nuance:

When the heirs include a surviving spouse or surviving parents (among a few others), what is called for seems to be a "notarial" declaration, in the form of a sworn affidavit, involving a notary lawyer in the "habitual residence of the deceased".

In other words, one does not file for it in a court and obtain an order from the court, but rather goes to a notary lawyer who presumably examines all supporting documents and if necesasry conducts enquiries before notarixing the affidavit.

If the heirs are brothers, nephews or other "collateral" relatives, then a judicial declaration, involving a court, is called for.

I suspect that the former, laborious as it sounds, is still simpler than the latter. Merely because a judicial proceeding is typically initiated by filing a lawsuit-- a process with its own attendant delay-causing factors in most countries.

Cheers
AS


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