Inheriting an Estate in Spain From Australia

Inheriting in Spain from Australia starts with a certificate of last wills from the Ministry of Justice, a Spanish notary to identify the heirs, and a power of attorney so someone in Spain can act. The Consulate-General in Sydney can authorise that power of attorney; an Australian notary's document needs a DFAT apostille and a sworn translation.

Key takeaways

• The Ministry of Justice's certificate of last wills shows whether the deceased made a will in Spain, and before which notary. It can be requested only after 15 working days from the death.
• Without a will, the heirs are identified by a declaration of heirs before a notary in Spain.
• The Consulate-General in Sydney authorises powers of attorney, for Spaniards and foreigners, and renunciations of an inheritance. Honorary consulates cannot.
• A document signed before an Australian notary can take effect in Spain with a DFAT apostille and an official Spanish translation.
• A non-resident heir of Spanish assets files the inheritance tax return within six months of the death, with a possible extension.

Which law applies to the inheritance?

The Spanish consulate's page on wills explains that Spanish nationals were once always inherited under Spanish law, but that changed with the EU Succession Regulation. Successions are now governed by the law of the country of the deceased's habitual residence, whatever their nationality and wherever the property is. A person can choose their national law instead, expressly, in a will or a separate declaration before a notary.

So a Spaniard who had lived in Australia for decades may be inherited under Australian law, unless their will chose Spanish law. Which law applies affects who inherits and in what shares, so ask a Spanish lawyer or notary early.

What is the certificate of last wills?

Spain keeps a central register of wills, the Registro General de Actos de Última Voluntad. The Ministry of Justice explains that notaries report every will made before them, consuls report wills made at Spanish consulates, and a foreign will can be registered too. The certificate of last wills (certificado de actos de última voluntad) states whether any will exists and, if so, where, when and before which notary it was made. With it, the heirs can ask that notary for a copy of the will.

The Ministry says heirs use the certificate for the declaration of heirs, life insurance claims, bank accounts and any step that depends on knowing who the heirs are, and that anyone, Spanish or foreign, can request it from abroad. Its key rules:

• The request cannot be made until 15 working days after the death.
• The online route works only where the death is recorded in the Spanish civil registry in a way the system can check; otherwise, apply by post or in person with the full death certificate.
• If the certificate is to be used outside Spain, the register also legalises it.

What if there is no will?

The Ministry explains that where someone dies without a will, a declaration of heirs on intestacy (declaración de herederos abintestato) establishes who the heirs are under the law. It is made before a notary in Spain, chosen by the applicant from those for the place of the deceased's last domicile or habitual residence, where most of the property is, or where they died, provided those are in Spain. Failing all of them, a notary for the applicant's own domicile can act. Spanish notaries report each declaration to the register, which checks for duplicates.

This step happens in Spain, so most families in Australia deal with it through a relative, lawyer or gestor acting under a power of attorney.

What can the Spanish consulate in Sydney do?

The Consulate-General's page on consuls' notarial role says Spanish consuls can act as notaries, like notaries in Spain, within limits. They mainly authorise:

• powers of attorney, general or special, including for court proceedings;
• deeds ratifying or revoking other notarial acts;
• deeds renouncing an inheritance;
• wills and marriage property agreements;
• signature certifications.

The consulate adds that consuls do not authorise documents meant to take effect only outside Spain, that anyone who does not understand Spanish well enough must bring an interpreter at their own cost, and that honorary consulates of Spain cannot act as notaries. It also mentions an online option: some acts can be signed before a notary in Spain by videoconference with a Spanish digital certificate, but not steps relating to inheritances.

How do you sign a power of attorney at the consulate?

The consulate explains that powers of attorney can be given by Spaniards or foreigners. A general power lets the attorney do any valid legal act, including taking part in inheritances; a special power covers named acts, such as accepting an inheritance. The steps it describes:

1. Complete the application form and describe the powers you want to give. A draft can be attached, sent to the notarial section by email in Word or editable PDF.
2. Post the form with a copy of your valid Spanish ID and the fee by Australia Post money order. A foreigner also provides their NIE, the Spanish foreigner's identity number.
3. Include copies of the ID (DNI or NIE) of each attorney you are appointing.
4. Wait for a call offering an appointment, given in strict order of requests.
5. Attend in person on the signing day with your original DNI or valid passport.

A power of attorney authorised by a Spanish notary or consul can be revoked at any time by a deed of revocation, which the consulate can also authorise.

Can you renounce a Spanish inheritance from Australia?

Yes. The consulate says a renunciation is made by a deed of renunciation of inheritance (escritura de renuncia de herencia), which it can authorise. Renouncing releases you from all rights and obligations under the inheritance, but the consulate warns that it is irrevocable, and that the law does not allow renouncing partly, from a date, or on a condition. For the deed, it asks for:

• your valid DNI or passport, and your NIE if you are a foreigner;
• the deceased's death certificate;
• the certificate of last wills;
• an authentic copy of the last valid will, or of the declaration of heirs.

As with every consular deed, you attend in person with your original ID. Renouncing is a serious step, so take advice from a Spanish lawyer about the debts and about who inherits in your place.

When does an Australian notary come in?

The consulate's own page says notarial acts made before a foreign notary can take effect in Spain, provided they are duly legalised or apostilled and, where needed, accompanied by an official translation into Spanish. So an Australian notary is a real alternative for a power of attorney, for example where the consulate's appointments do not suit, or where the Spanish lawyer has sent a draft to be signed locally. Before you book, ask the Spanish notary or lawyer, as the receiving authority, which route they prefer. Our guide to signing a power of attorney for use overseas explains what the Australian notary checks.

Which Australian documents might Spain ask for?

The consulate explains that Australia has been party to the Hague Apostille Convention since 1995, so an Australian document needs no consular legalisation: for validity in Spain, it must be apostilled and officially translated into Spanish. The apostille comes from DFAT, and only originals, or authentic copies from the issuing body, are accepted. Documents in another language must be translated by a sworn translator-interpreter registered in Spain, and the consulate says foreign documents must be apostilled before they are translated. Check the HCCH status table on the day.

Document	Where it comes from	Form for Spain
Certificate of last wills	Spanish Ministry of Justice	Requested from 15 working days after the death
Australian death certificate	State Registry of Births, Deaths and Marriages	DFAT apostille, then sworn Spanish translation
Power of attorney	Consulate-General, or an Australian notary	Consulate: signed in person. Notary: apostille and translation
Renunciation	Consulate-General, or a notary in Spain	Deed; irrevocable, not partial or conditional
Australian grant of probate	State Supreme Court	Apostille and translation, if the Spanish notary asks
NIE	Spanish authorities	Asked of foreign signatories at the consulate

A Spanish national who died in Australia should also have the death recorded in the Spanish civil registry. The consulate registers deaths of Spaniards in its district, with the Australian certificate apostilled and translated, by registered post. Our guide to documents for Spain covers apostilles in more detail.

Is there Spanish inheritance tax?

There can be, on assets in Spain. The Spanish tax agency explains that a person not habitually resident in Spain who inherits assets or rights located in Spain must file a return, the Modelo 650. For inheritances, it is due within six months of the death; an extension of the same length can be requested within the first five months. Ask your Spanish lawyer or gestor how it applies to your case, and an Australian tax adviser about the Australian side.

An illustration

This is an illustration, not a real case. A Spanish-born man who lived in Hobart dies, leaving a flat in Valencia. His daughter, a Spanish citizen in Hobart, requests the certificate of last wills by post with the apostilled, translated death certificate, and learns of a will made before a notary in Valencia. She then signs a special power of attorney at the Consulate-General in Sydney so a Valencian lawyer can accept the inheritance for her, file the tax return and complete the deed.

Common mistakes to avoid

• Requesting the certificate of last wills too early, before 15 working days have passed.
• Going to an honorary consul for a power of attorney, which honorary consulates cannot authorise.
• Translating before the apostille, when the apostille must come first.
• Renouncing on a condition, or only in part, which Spanish law does not allow.
• Missing the six months for the non-resident tax return.
• Signing without an NIE as a foreigner at the consulate.

In short

Inheriting in Spain from Australia starts with the certificate of last wills, then a will or a notarial declaration of heirs in Spain, and a tax return within six months where there are Spanish assets. Most families appoint someone in Spain: sign the power of attorney at the Consulate-General in Sydney, or before an Australian notary with a DFAT apostille and an official Spanish translation. A renunciation can also be signed at the consulate, and it is final. See our apostille service and our guide to overseas inheritance documents.

People also search for

• When does a document for Spain need an apostille?
• Which Spanish documents need a notary?
• Which documents do I need for an overseas inheritance?
• Can a notary witness a power of attorney for overseas?
• How do I use a death certificate overseas?

If a Spanish lawyer or notary has sent you a document to sign, send us what they asked for, and we will explain each step before you book.