The UK probate system from a Spanish perspective. In Spain, the probate process, called sucesión, is often more straightforward than compared to its English counterpart, namely the grant of probate. To better illustrate and explain this, I will use a classic example of someone who is a Spanish national who comes to live in the United Kingdom (UK) for several years and, therefore, has various assets here in the UK. Shortly thereafter, they pass away. Which legal regime to follow? Where to even start with this process? And how does one navigate the English regime, which so often causes a lot of confusion?
To begin with, from a Spanish perspective, if they were a Spanish national and they had a legally valid Spanish will, everything should be done in accordance to Spanish law, right? This would, by and large, be correct so you would be right in reaching that conclusion. The problem is that it fails to consider two crucial aspects, firstly, the location of the assets, and secondly, the intricacies of the concepts of “domicile” and “residence”.
Firstly, if there are any assets in England and Wales then you will need to deal with them in accordance with English Laws. Usually, you will need to apply for a grant of probate if the total value of the estate exceeds £5,000 (more on this later) but this will need to be calculated quite early on to be able to determine the next steps. As a result, one can not just assume that Spanish law will apply for all of the assets of the estate.
Secondly, determining the applicable law for any given inheritance case can be a complex task, especially when considering the distinction between “domicile” and “residence” in both jurisdictions. While a Spanish national living in the UK who later returns to Spain may appear to be subject to Spanish law, their “domicile” could remain in the UK, given the long-term connection they may have had with this country, such as owning property or having financial ties of some kind. This means that UK law could still apply to their estate, even if they reside in Spain. This creates a conflict between the inheritance laws of Spain and England, as highlighted in the EU Succession Regulation 650/2012, thereby further complicating and adding unnecessary stress to an already long, strenuous and legally technical process. As a result it is necessary to conduct a detailed analysis of both legal systems and the assets involved to ensure compliance with both jurisdictions and avoid unnecessary legal complications.
This whole ordeal is further complicated since fiscal issues may also arise. The deceased’s residence in Spain means his estate is subject to Spain’s Inheritance Tax, while his “domicile” in England could trigger inheritance taxes under British law, potentially leading to double taxation. Each country’s tax authorities will typically apply what is known as a unilateral tax relief, but this may, or may not, be applied at their own discretion. Henceforth, it is necessary, depending on the given case at hand and its specific details, to give careful consideration to avoid excessive, and unexpected, tax burdens on the beneficiaries. As a consequence, I would also like to emphasise that in these cases, in addition to seeking legal advice, it may be necessary to seek expert tax advice to accurately assess the potential tax implications in each case.
Process of applying for probate:
Once adequate legal and tax advice has been sought and after identifying all of the assets and debts of the deceased, (which includes savings, investments, mortgages, and loans, as well as any gifts given in the last seven years prior to death), then the next step is to estimate the total value of the estate. It is important to note that undertaking probate is not always necessary. In fact, generally speaking, you will not need to apply for a grant of probate for smaller estates, these tend to be the ones with a value of less than £5,000.
Once this is done, then it is necessary to also calculate, based on the value of the estate and the debts, whether inheritance tax will be payable. In most cases, inheritance tax does not apply if the value of the estate is under £325,000, or if the entire estate exceeding £325,000 is left to a spouse, civil partner, charity, or amateur sports club.
Once this is completed, then the probate can formally begin. You can apply for it via the post or online, if you do so online, there is quite a self-explanatory system to follow on the UK government’s website. The application will be submitted and reviewed, and the progress can be tracked through an online portal. If you apply by post then the form that you will need to fill in will depend on whether the person has left a will, if there is a will, then fill in the application form PA1P, and if there is no will, then fill in the application form PA1A.
After you apply, the application will be reviewed by the Probate Service and you should receive a letter or email within 12 weeks. If your application is approved, then you will receive a document that will allow you to start dealing with the estate. This will be one of the following: either a ‘grant of probate’ – if the person left a will; or ‘letters of administration with will annexed’ – if the will does not name an executor; or ‘letters of administration’ – if the person did not leave a will. Once this is all complete, then you can start dealing with the estate.
In conclusion, while the probate process is in and of itself long and convoluted, dealing with it in two different jurisdictions adds an extra layer of complexity. Navigating the process is challenging, making it essential for those who did have family members who lived in the UK for a while before passing away to be prepared for these difficulties.
Here at Del Canto Chambers, we offer expert legal and tax advice in the main areas of probate and intestacy, both in the UK and in Spain, and we are committed to delivering the best possible outcomes for individuals undergoing this process.
Don’t hesitate to reach out to us if you need advice regarding your probate in both Spain and the UK.
By Álvaro José Gutiérrez Calero, Legal Consultant at Del Canto Chambers.
