Cross-Border Probate: The UK-Spain Legalisation Trap

Cross-Border Probate: The UK-Spain Legalisation Trap 

Executors and practitioners handling ab intestato (intestate) successions face severe delays when executing Spanish deeds before UK notaries. While Spanish Land Registrars demand strict administrative compliance for entries into the Land Registry, UK Notary Publics must simultaneously navigate the legalisation rules set by the Foreign, Commonwealth & Development Office (FCDO) to obtain the Apostille of the Hague. When these two regulatory regimes conflict, cross-border estate administrations can grind to a halt. 

 To take effect in Spain, any UK public instrument must bear the Apostille of the Hague. However, the FCDO maintains strict criteria regarding the physical composition of notarial bundles. Crucially, the FCDO will routinely reject any notarial bundle containing a photocopy of an apostilled supporting document -that is, it contains a copy of the Apostille of the Hague for said supporting document. For example, an apostilled and translated death certificate. It is standard practice for Spanish sworn translators to include a photocopy of the UK death certificate’s Apostille of the Hague in the translation bundle, as it is an integral part of the document they translated. However, this photocopy cannot be included in the notarial deed to be executed before a UK notary public, or FCDO will reject the legalisation with the Apostille of the Hague on the deed, rendering it ineffective in Spain. A common solution is to remove said photocopy of the supporting document’s Apostille of the Hague from the translation bundle, as the original is included in the notarial deed bundle. 

 A more complex impasse occurs in intestate successions of cross-border estates affecting Spanish assets. In this case, if Letters of Administration have not been issued or are not required, the Spanish authorities require a process called as Declaration of Heirs, which is a notarial deed granted (mandatorily) before a Spanish notary public with jurisdiction over the Spanish estate that confirms who are the beneficiaries of said estate and produces a bundle with notarial copies of the death certificate and additional evidence. Documents issued in the UK are apostilled and translated, and thus the copies contained in said Declaration of Heirs include copies of Apostilles.  The final notarial step in this process, is to grant the Deed of Acceptance and Adjudication of Inheritance to distribute the Spanish estate, which by its nature must include the Declaration of Heirs. As the Declaration of Heirs notarial bundle includes copies of apostilled documents with copies of said apostilles, inserting them into the UK notarial Deed of Acceptance and Adjudication of Inheritance bundle triggers an immediate refusal by the FCDO to legalise the bundle, thus rendering it unusable in Spain. 

 Many practitioners in the past have given up on completing the Deed of Acceptance and Adjudication of Inheritance in the UK, instead incurring in higher costs by either travelling to Spain to execute said document before a Spanish notary public, or by engaging an agent to sign said deed on their behalf using power of attorney. While this traditional route has proved acceptable to the Spanish authorities, it is far from time and cost-efficient. 

At Labrums Solicitors, using our cross-border expertise in both English and Spanish Law we have devised and implemented a more efficient solution that saves our clients costs, time, and allows the client and this firm to retain full control of the Deed of Acceptance and Adjudication of Inheritance.  

 If you are currently handling a cross-border estate, please contact Labrums Spanish Law Department at SpanishLegalTeam@labrums.co.uk to discuss how we can assist you.