Investment approach
Inheriting an SL Stake and Property in Spain: Procedure and Risks
By default, the heir to an SL stake becomes a member unless the articles give the others a buyout right. Which law governs the estate, and the legítima, depends on where the person lived.
When a member of an SL (sociedad limitada, limited company) dies, the stake passes to the heir by default and the heir becomes a socio (member): so says art. 110 of the Ley de Sociedades de Capital (LSC, Spain's companies act), unless the articles provide otherwise. Which law governs the succession itself is decided not by where the property is but by Regulation (EU) 650/2012: as a general rule, the law of the country where the deceased habitually resided at death.
Which law applies: residence versus nationality
Regulation (EU) 650/2012 applies to the estates of people who died on or after 17 August 2015 (art. 83.1). The law governing the succession is set by habitual residence at the time of death (art. 21). A person may choose the law of their nationality (art. 22), known as professio iuris. The choice must be made expressly in a disposition of property upon death, usually a will.
For a non-resident investor from a non-EU country this means: if you live outside Spain, the starting point is the law of your country of residence, even if the property is in Barcelona. But there is a caveat about renvoi (reenvío, art. 34): if that country's private international law itself points to the law of the place where the real estate is, Spanish law may apply to the property in Barcelona. How this plays out for your country and property is for an abogado (lawyer) to say. If you live in Spain, the answer is different.
What is inherited: the property directly or an SL stake
| What the owner holds | What the heir receives | What decides it |
|---|---|---|
| An apartment held personally | Ownership of the property | The law of succession, then registration in the Registro de la Propiedad (land registry) |
| An SL stake (participaciones) | The stake, and with it socio status | Art. 110 LSC and the company's articles |
| A stake under a participation agreement | Depends on the agreement | The agreement's terms and the law |
For an SL, under art. 110 LSC the heir or legatee gets socio status unless the articles say otherwise. The articles may give the remaining members, or, if there are none, the company itself, the right to buy out the deceased's stake at a reasonable value on the day of death, paid in cash at once. That right must be exercised within three months of the company being told of the succession.
Worked example: a 50/50 SL and three heirs
Worked example, not a forecast. An SL has two members, each holding 50%. One dies and has three heirs in equal shares. If the articles are silent, each heir gets 50 ÷ 3 ≈ 16.7% and becomes a socio. The other member now has three people in place of one partner, and decisions under the articles must be agreed with each of them.
If the articles contain a buyout right, the remaining member can buy the 50% within three months at a reasonable price on the day of death. The heirs then receive money, not shares. Which option is better depends on your project, which is why such a clause is discussed with an abogado before the articles are signed.
The legítima in Catalonia: what a will cannot contradict
If Catalan law applies to the estate, the legítima applies. This is the minimum share of the estate that the testator cannot take away from the heirs. Under Ley 10/2008 (Book IV of the Civil Code of Catalonia) the legitimarios are descendants, or parents if there are none (art. 451-3 and 451-4), and the legítima is a quarter of the calculation base (art. 451-5).
Worked example, not a forecast. The calculation base is 1 M€. A quarter is €250,000. This figure is not what each heir will receive: the base and the split are calculated by a lawyer from the family's make-up.
What to do after a death: the order
- Obtain the certificado de defunción (death certificate).
- Request the certificado de actos de última voluntad (certificate of last wills) from the Ministerio de Justicia: it can be applied for only 15 working days after the death (Ministerio de Justicia online office).
- Find the will or obtain a declaratoria de herederos (declaration of heirs) if there is none.
- Sign the deed of acceptance and distribution of the estate before a notary.
- Deal with the tax side: for inheritance tax for a foreign owner see a separate article.
- Record the changes in the Registro de la Propiedad. For an SL stake, notify the company and update the register of members.
Documents from the deceased's country may need legalisation and a sworn translation: translation requirements. If there are several heirs and they acquire the property in shares, co-ownership arises, described in the article on proindiviso.
What to discuss with an abogado in advance
- A will in Spain and one in your country of residence: how they relate.
- Whether a professio iuris is needed and under whose law you want your estate handled.
- What to write in the SL's articles about inheriting a stake, and how that fits with the shareholders' agreement.
- Who can run the company and the project in the first period: an administrator, a power of attorney.
This article does not replace a consultation: inheritance law depends on nationality, place of residence and the family's make-up. The choice of ownership form (the property held personally or through an SL) is compared in the article on buying through a company or as an individual.
Questions and answers
Who inherits an SL stake in Spain?
The heir or legatee, who becomes a member of the company unless the articles provide otherwise (art. 110 LSC). Who exactly the heir is follows from the law of succession or the will.
Which law applies to the estate of a foreigner with an apartment in Barcelona?
Under Regulation 650/2012, as a general rule the law of the country of habitual residence at death, or the law of nationality if the testator chose it. The property's location does not decide the law by itself, but it can matter through renvoi (art. 34) if the law of the country of residence points to the law of the place where the real estate is.
Can a will get around the legítima in Catalonia?
As a general rule, no: the legítima is a quarter of the calculation base and belongs to descendants, or parents if there are none (art. 451-3, 451-4, 451-5 of Ley 10/2008). Exceptions and the method of calculation are for an abogado to check.
When can I request the certificado de últimas voluntades?
After 15 working days from the death, not counting the day of death, weekends and holidays, according to the Ministerio de Justicia website.
