Registration of certificate of inheritance

1. To what extent could the Certificate be registered in your Land Registry? Is this Certificate enough for the registration of ownership (or other rights in rem) in the name of the heirs (or legatees)? Otherwise, which other additional documents or complementary requirements would be needed?

Certainly we have not any experience or practice yet about this Certificate, however, insofar as Regulation (UE) 650/2012 establishes that the Certificate involves same effects (and aims) as national certificates, taking into account such equal effects, we could reach the following conclusions.

Firstly: the certification itself cannot normally be enough for transfer registration under Spanish law neither for the heirs nor for the legatees. It is considered that a formal partition deed (or distribution of estate document) shall become necessary[1].

However, a provisional entry (caveat) can be required by means of the certificate by the heir in order to publish his right against third party in good faith acquisition[2]. Caveats of the rights can be requested by the heirs regarding succession rights whether there has been not a specific transfer of particular or undivided properties (Article 42. Mortgage Act).

The same possibility is available for the legatee, who can publishes, by a provisional, entry his expectant right but not the transfer of the rights by means of the certificate. The bequest is not transferred to the legatee until a formal deed of delivery and acceptance is written[3].

Nevertheless, the certificate might be sufficient for purposes of registration in some specific cases[4]:

• If there is just one heir, and there is no any other interested party with a right to the legal portion of the properties, or any trustee or authorized person to award the properties, the certificate of succession along with an application signed upon the registry or with legalized signature containing the description of the immovable is enough for registration.
• In the event of partition entirely made up by the deceased on the will or testament.
• For the legatee, when all the state is distributed into bequests and there is no administrator named by the deceased.

Finally, we have to outstand that the certificate by itself will not be enough for registration of close relative’s reserved legal shares[5]. Only a provisional entry is possible in certain rarely cases (A.15 Mortgage Act).

Although not totally out of debate, if the Certificate of succession implies the application of substantive foreign law, we might assume that there might be other possibilities of registration:

• It may happen that according to the foreign law the estate is transferred from the decease by means of the certificate with no need of future partition deed. In this case, the transfer could be registered in the Spanish registry by means of the certificate itself.
• The same will happen if the certificate, according to the material foreign law, gives a share over the state to certain heirs or legatees (roman community of heirs or legatees). Goods will be registered under the heirs name in the established portion.
• If the certificate establishes a regime of community among the designated heirs but not specific shares over the goods (German community), the registration will be done with compliance with the established community regime[6].
• Do you request official translations of European Certificates of Succession that are drawn up in a foreign language? Is the registration of a multilingual deed possible?

The matter of translation of documents that shall be registered is ruled in Spanish law by Article 37 of “Reglamento Hipotecario”: the registrar may require the document to be translated if it is drawn up in a foreign language, but he can assume the responsability of not requiring it if he or she knows that foreign language. It will depend thus on the particular registrar that has to decide the registration. However, since the the form to be used for the European Certificate of Succession is estabished by a Regulation of the Commission implementing Regulation (EU) no 1329/2014 of 9 december 2014, on this basis the European Certificate of Succession should not need any translation in Spanish territory.

If the certificate establishes rights unknown in Spanish national law, principle of adaptation will be applied to get their closest equivalent. (See answer next question).

2. In particular: for the purposes of registration, if the interested parties have complied with a Certificate of Inheritance adequately, will sharing out or distribution of estate deeds be also necessary?

Yes, according to Spanish law, a formal deed of partition would be requested, except in the cases outlined in the previous question.

According to Article 14 Mortgage Act, 2nd paragraph (…) properties or transfers of properties will be registered by means of a public deed or by a final judgment. Once determined the heirs and accepted the inheritance, partition or distribution of estate could be done.

A partition document must be enclosed, drawn up by the heirs. Partition made up privately is valid, although for registration a public document (notarial one or judicial approval of the partition or civil case on distribution of estate) is needed. Generally registration requires the submission of a public document at the land registry (Mortgage Act, article 3).

As again will be mentioned, we should take into account that in Spain often the matrimonial regimes consist of community of properties; so, and in practical terms, a first step before the distribution of an estate will be the liquidation of properties acquired during marriage; once that has been done, the distribution may take place.

3. In the event that the Certificate cannot be used for purposes of registration at all in your LR system, please let’s know the legal reasons.

We don’t consider this option at all because the Regulation (UE) 650/2012 is directly applicable.

The certificate itself (in the cases outlined) or along with the partition deed might be acceptable for registration under Spanish law in the indicated terms.

4. May the Certificate be rejected by your registration authorities in the event of inadequate completion, mistakes or inaccuracies?

In accordance with the Spanish law, registration of the documents shall be submitted to a strict legal scrutiny calificación. Registrars shall assess, under their responsibility, the legality of the extrinsic formalities of all kinds of documents by virtue of which the registration is required. Registrars will also assess the capacity of grantors and the validity of acts by virtue of which properties are transferred and granted in the public deeds and in the Registry entries. This assessment guarantees the principle of legality, as all entries are presumed to be accurate and, once made, under safeguard of judicial authorities.

This land registrar’s scrutiny not only falls on the partition deed but also the certificate of succession. The registrar can assess not only that all documents for succession are presented as a formal checking but also the right application of the material law for the determination of the status of heir and/or legatee. The registrar shall carry out this assessment in the same way as the national documents (judicial intestate abintestato statements and notarial deed of declaration of common knowledge of intestate heirs). Registry entries are presumed to be legal and accurate and so, the registrar assessment implies the control of legality of all documents presented, including the succession title, in order to prevent null or incomplete acquisitions by inheritance mortis causa.

Finally, we must remark that when the succession is based on a will or testament, heirs shall prove their status by means of a will and testament along with a certificate of the Ministry of Justice confirming that the will is the last one plus a certificate issued by the Civil Status Registry attesting the event of the decease and its date.

The certificate of succession of Regulation 650/2012, when applying Spanish law, must prove these facts to comply with Spanish succession law.

If there were no will and testament, the status of the heir ab intestato is proven by a judicial act or a notarial act, and now, as stated in the regulation 650/2012, by the certificate of inheritance, in application of the correspondent law. Legal presumptions based on the facts proven in the judicial or notarial acts can be always contested by the registrar who is only obliged by the facts proven but not by the legal conclusions, in case, there are not accurate according to the applicable law.

• • Do you control whether the authority, who issued the Certificate, is indeed competent to do so? Imagine you receive a request for the registration of a European Certificate of Succession that is drawn up by a foreigner claiming to be a notary in the Netherlands. Do you actively control whether this person is actually a notary in the Netherland and if so, how do you control this? 

  Provided that the document that has been received is a certified copy of the original document, of the original European Certificate of Succession, it is assumed that it has been issued by a competent authoriy of the Member State where it has been issued, since the Certificate shall produce its effects in all Member States, without any special procedure being required (Article 69(1) of the Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012), and no legalisation or other similar formality shall be required in respect of European Certificate of Succession (Article 74 of the Regulation (EU) No 650/2012). Notwithstanding that, the competency of the authority that issues the certificate is under control of Spanish Land Registrars (articles 18 Ley Hipotecaria and 98, 99 and 100 Reglamento Hipotecario), and as a consequence, if there were any indication of a lack of competency of the authority that issued the certificate, it might be controlled and eventually rejected by Spanish Land Registrars (Article 69(5) and Article 1(2) point (l) Regulation (EU) No 650/2012).

  • A foreign ‘court’ has drawn up a European Certificate of Succession and submitted a request for registration to your organization. As the Certificate does not comply with your national registration requirements, you have to reject the application. In practical terms, how and in which language do you contact the ‘court’?

  When a document does not comply with registration requirements, the registrar will extend a “nota de calification” (which can be translated as examination writing conclusion, resolution or note), where it will be expressed why the document cannot be registered, which requirements are not fulfilled and the legal basis of it all. This resolution will be notified to the court or authority that has issued the document and to the interested party in the registration of that particular document. The resolution and the notification will be issued in Spanish, since there is no legal obligation to translate it to foreign languages.

  • Does your answer to the preceding question change when it is not the issuing authority but the heir himself who submits the request for registration?

  No, in fact, as it has been said, the resolution denying or suspending the registration will always be notified to the court or authority and to the interested party in the registration, and there is a presumption of interest in the person that submits the request for registration (in this case the heir). It will also be issued in Spanish.

5. For the certificate to be effective for the distribution of the estate and its registration, should this document be issued by national notaries or other practitioners or could it be issued by foreign notaries?

According to Spanish law there would not be any problem in order to admit the certification issued by other MS authority in accordance with the Regulation (UE) 650/2012.

Foreign wills are nowadays recognized and used for partition deeds made up in Spain and are considered suitable title for registration. In addition, partition deed made up by foreign notaries has also been recognized and —according to a Supreme Court’s resolution— foreign public documents are suitable for purposes of registration insofar as they meet those requirements demanded by Spanish law.

Foreign documents in order to be registered do only have to comply with the principle of article 3 and 4 Mortgage law (only public documents are valid for registration). As the certificate is it self considered a public document (issued by public authority) according to the Regulation (UE) 650/2012, the formal acceptance seems to be compulsory[7].

[1] According to Spanish law, heirs success the decease in all his/her assets and debts (his/her estate) from the moment of the decease. However, the succession does not take place automatically: a formal act of acceptance is needed, because the heirs have the right to accept or waiver the estate. Acceptance or rejection has to be done upon the death of the decease and no previous manifestation is taken into account. However, once accepted, the effects take place since the moment of the decease (retroactive effect of the acceptance).

[2] The heirs once formally declared as such do not have a specific share over each good from the decease. Nevertheless, the heirs form a German community so that they have a global right over the estate of the decease. This kind of right, which doesn’t implicate a proper transfer of concrete goods belonging to the deceased, could lead to a provisional entry in the registry.

[3] According to Spanish law, the deceased can set in its will and testament not only the designation of an heir but also the right of a person to certain assets. The legatee cannot take possession of the bequest by himself: he has a right to accept or reject the bequest but it is needed that heir or the administrator gives him formal possession. There are two main exceptions to this rule, first when the deceased specifically allows the legatee to take himself possession over the legacy and when the deceased has not named any heir and all the inheritance is shared out by bequests.

[4] We think the certificate of sucessions will be enough for registration as these cases according to Spanish law, when the succession title, with no need of other deed is sufficient to transfer the property it self.

[5] Under Spanish law the principle of freedom to dispose is limited by what we call legitimas, reserved portions, as a share of the estate reserved by law to the closest relatives (children or grand children, widow and in certain cases parents). The legitimas or reserved portions don’t involve a right on specific assets but a right to a certain share of the inheritance of the deceased, which has to be paid with assets of the same inheritance.

[6] We think that according to the Spanish principle of numerus apertus and the principle of adaptation set in article 31 of the Regulation, the assets could be registered in favor of the heirs in community. In addition, in accordance to article 36 Spanish Regulation on Mortgage Act, foreign law shall have to be proved and the whole regulation of the regime will be transcribed in the registry entries so that the disposure regime is clearly explained in the land registry entry.

[7] (Supreme Court – First Hall – 19th of June of 2012. DGRN Resolution of 22th of February of 2012).