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INHERITANCE

Foto de INHERITANCE

06 Marzo, 2015

Escrito por Dr Crespo

This guide do not substitute professional advice, which we will be happy to provide on request.


Introduction
Over 500,000 British people have an interest in a holiday home in Spain. More than 4,000,000 take holidays in Spain each year. Some stay to start businesses, to retire - or just to enjoy the sunshine.
When they die, most will leave assets in Spain that will need to be transferred to their heirs.
The basic approach to dealing with an inheritance involving assets in Spain is the same in all cases:
1. Establish what assets exist in Spain
2. Establish which law should apply to the inheritance
3. Establish whether there was a valid Spanish will
4. Establish whether there is a valid English or other will covering the assets in Spain
5. If there is no valid will, work out who is entitled to the assets
6. Complete the documentation needed to transfer title of the assets in Spain to the persons entitled
7. Pay the necessary taxes
8. Register the title of the new owners
The detailed procedures to be followed will depend upon whether or not the person who has died made a valid will, either in Spain or anywhere else.
Note that this document has been made only taking in consideration the provisions of the European Regulation 650/2012.
Which law should apply?
The position is a little complicated.
Estates of residents in Spain will be governed by Spanish Law unless special provisions are set up in the will.
Estates of non residents in Spain will be governed by National Law.
Spanish general law provides for only limited freedom of testamentary disposition. A person making a will can say what he likes in it, but certain groups of people - mainly the husband/wife and children - have priority rights which, if not reflected in the will, can allow them to challenge it. In a typical case of a man with a wife and children the man will only have total freedom to dispose of one third of his estate. One third must pass to his children equally. The second third is subject to an automatic life interest in favour of his wife and can also only be distributed, after her death, amongst his children - but in such proportions as he thinks fit. The final third is his to deal with as he wishes.
Did the person who died make a Spanish will?
Even if you think you know that there is no Spanish will we are required to make a check with the Spanish central wills registry to ensure that this is the case.
If there is a Spanish will
Provided it is valid and has not been revoked it is likely that the contents of that will shall determine what is to happen to any assets in Spain.
If there is no Spanish will
Is there a valid English or other will covering the assets in Spain? If so that will shall be accepted as valid in Spain.
If there is a valid non-Spanish will
Subject once again to the possible superior rights of the wife and children, then the assets are likely to be distributed in accordance with the provisions of that will.
If the will is to be used in Spain then various steps will need to be taken:
1. It will need to be translated - by an official translator - into Spanish
2. We will need to obtain official copies of the Grant of Probate of the will and of the death certificate. In certain cases, official copies of birth and marriage certificates may be needed. These all need to be translated into Spanish.
3. All of the documents for use in Spain need to be certified by the Foreign & Commonwealth Office for use in Spain.
4. We may need to prepare a certificate of law to confirm to the Spanish authorities that the dispositions in the will are lawful.
5. We will need to prepare powers of attorney authorising one of our Lawyers to pay the appropriate taxes and to sign all of the inheritance documentation in Spain on behalf of the beneficiaries.
6. The money needed to pay the taxes has to be collected and sent to Spain.
Once this has been done we will pay the taxes and sign the paperwork, thereafter registering any land of buildings in the name of the new owners.
If there is neither a Spanish nor any other will
1. We will need to explain to the Spanish authorities who is - under the combined rules of Spanish & English law - entitled to the inheritance. This will need to be supported by the appropriate documentation, duly translated into Spanish & authenticated. We may also need to produce a certificate of law for presentation in Spain.
2. We then arrange for the payment of the taxes, the signing of the inheritance documentation and the registration of title as described above.
Paying the taxes
Taxes due on an estate are calculated very differently in Spain from the way they are calculated in England. The amount to be paid is calculated by reference to each beneficiary rather than on the basis of the estate as a whole. Each may have his or her own tax free allowance and will pay tax at a rate which will vary according to their relationship to the deceased. A return has to be made to the Spanish tax office and the necessary taxes paid. This should be done within six months of the date of the death as otherwise a surcharge and interest may become payable.
Preparing the documentation to accept the inheritance
This is done in by a Spanish notary after consultation with us who will ultimately sign the documents.
Registering the beneficiaries title
Where part of the inheritance is a house or apartment the title will need to be registered the title of the new owner will need to be registered at the Land Registry.
Other matters
It is in the nature of dealing with inheritances that the unexpected often occurs. Perhaps the deceased's title to his home was defective and needs rectification before it can be conveyed to the beneficiaries. Perhaps he has not paid all the taxes expected of him. Sometimes the family cannot agree to what should happen to the assets or unexpected claimants or assets may turn up. These problems need to be dealt with as they occur.
The new owners should consider themselves making Spanish wills. If they have inherited from someone who did not do so they seldom need much persuasion as to the wisdom of doing so.
The beneficiaries may want advice as to investing the money inherited or about selling other assets for which they may have no personal use. We are happy to assist with all such matters.

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