Solicitor Raymundo Larraín Nesbitt explains why it is almost essential, for non-residents owning property, to make a will in Spain in lieu of drawing up a national one to dispose of their Spanish estate. He also sheds some light onto Spain’s Inheritance Taxation system so as to cast aside some increasingly widespread misconceptions.
By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of August 2012
Original article from 3rd September 2.009
The topic of Inheritance in Spain is a fairly complex and technical one, allowing for multiple articles on the matter.
Besides a general legal framework which is applied nationwide (Law 29/87 andOrdinance 1629/1991), each of the 17 existing autonomous regions that make Spain are additionally empowered to rule on some aspects enacting their own laws i.e. on applying their own tax allowances.
There’s an ongoing trend to abolish Spanish Inheritance Tax fostered by Spain’s conservative party. These trends are always very popular amongst voters. Many Autonomous Regions have jumped onto the band wagon and are now applying reductions on IHT to such an extent which in practice translates to almost suppressing it i.e. Madrid, Basque Country, Navarre, Valencia, Balearic and Canary Islands.
Other regional communities, despite not having suppressed IHT, apply their own tax allowances in addition to those set by the Government in the above laws. Such would be the case of Andalusia in which beneficiaries, resulting from a death occurred after the 7th of June 2008, may benefit from the following regional tax allowances:
– Reduction of 99.99% in the IHT taxable base on inheriting the family home (deaths occurred since the 1st January 2003). This requires the beneficiaries to be resident in Spain.
– Reduction of 99% in the IHT taxable base on those inheriting a business – providing certain criteria is met.
– No IHT paid on the Estate itself on compliance with certain requirements (i.e. inheritance taxable base < €175,000 heirs are next of kin or spouse, heirs pre-existing net wealth < €402,678 ).
– No IHT paid by physically handicapped (disability above 33%) with a taxable base < €250,000.
For more detailed information on Spain's Inheritance Tax, I advise you read my two in-depth articles on the matter:
Is the Dread on Spanish IHT Justified? Not so.
Spanish Inheritance Tax has been grossly overblown over the last years by a minority with a vested interest in peddling doubtful financial products or else complex holding structures to non-residents at large who, in most cases, are in no real need of them.
These ‘creative’ solutions often involve high setting up fees as well as high annual costs that can altogether negate the sought tax mitigation. Besides, you run the risk that if you decide to sell the property later on in life, for whatever reason i.e. health issues, some purchasers’ lawyers may turn down deals when the property is locked up within a string of holding companies because of the associated legal risks. Naturally these companies can always be wound up – at a prohibitive expense – to sell on the underlying property although it may take some time. And last, albeit not least is the point on who’s really in control of such corporate structures.
I just have to make a special mention of equity release schemes that were sold by unlicensed agents in Spain to senior affluent foreigners. These schemes were supposedly devised to avoid or greatly reduce Spain’s IHT. The way they worked is that you borrowed money against your villa by placing a mortgage against it. The borrowed funds were put to work in some ‘safe’ offshore fund which gave a ‘guaranteed’ yield of 5% p.a. The theory was that the yield would pay off for the high setting up fees and ongoing expenses, almost self-financing itself – too good to be true. In this manner, on passing away, the estate went untaxed as it already had a lien against it – that’s the theory or sales pitch.
In practice things panned out very differently for these would-be-investors who ended losing both their homes and the borrowed money – which they never saw by the way –to these unscrupulous lenders as the property market took a nosedive. There were clauses ‘hidden’ within them that triggered repayment – in full – to lenders if the value of the collateral fell by more than 20 pc. By then your ‘safe’ yield was making a massive loss and as most of these borrowers were asset rich but cash poor they were forced to surrender the property – which acted as collateral – to these lenders.
Basically what these lenders were really doing was to buy trophy homes for a fraction of its market price. They knew very well that the invested funds would soon be in the red. And they let the magic of compound interest do the rest with owed funds increasing exponentially over time as losses continued to mount. It was only a matter of time until you were notified to either provide additional security or else surrender the collateral. It was pay up or put up.
It was always apparent to me – I am slightly pessimistic – that property prices were going to nosedive significantly post boom. You just cannot seriously expect real estate to appreciate by over 300pc over an eight-year period in Spain not to fall significantly over the following years – not to mention how very overvalued these properties were to start with by surveyors for the purpose of applying for a mortgage loan. Surveyors who were strongly ‘recommended’ by lenders but who oddly enough were paid for the borrower himself.
The more the property was worth, the more the borrower could borrow tightening the noose around their neck even further should the market turn the corner. Because the more you borrowed the easier it became to lose your property on a market downfall. The writing is on the wall.
I add that in my career I refused point blank to sign such contracts while working for a British law firm that heavily promoted them on the costas. I will still recommend anyone who wants to hear to steer well clear of such contracts. Not to be confused with lifetime loans in Spain which are wholly different and have no purpose of mitigating your heirs’ IHT bill and – needless to say – the loan is not invested in exotic offshore investments – you do as you please with it.
Worthwhile mentioning is the Spanish Tax Office’s clamp down on such structures as of late, eager to offset the shortfall in property tax revenue. The bottom line is that these solutions may prove unsuitable for most people, requiring a careful case-by-case approach.
IHT’s most onerous cases are related to the transfer of large estates or assets bequeathed to distant relatives or non-family members such as friends (Group IV). It is in both of these cases, which are a minority, in which the IHT liability can be high, too high, reaching even 81,6%, which is tantamount to expropriation in my opinion. Hence the need of tailored tax planning which may indeed – at times – justify setting up corporate structures, for tax mitigation purposes, on such cases.
The key to successfully mitigate Spain’s IHT is to plan ahead prior to the purchase of a property in Spain.
Isn’t a Will Drawn up in the U.K. or in the R.O.I. Valid?
A UK or Irish will are perfectly valid to bequeath assets located in Spain. Having said this, many practical problems stem from this that could easily be overcome by means of having made a Spanish will.
So why is it then ‘essential’ to make a Spanish Will?
Fairly often people just don’t realise they are adding unnecessary stress and expenses to their loved ones at a time of bereavement by not having drawn up a Spanish will. For all those owning property in Spain it is highly advisable you make a Spanish will which will be complementary to the will you’ve already made in your own home country.
However I would just like to clarify that making a Spanish will doesn’t avoid you being liable for Spanish IHT in any way whatsoever.
Drawing up a Spanish will, to dispose exclusively of your Spanish estate, has a number of advantages for your beneficiaries, all having to do with saving them time, money and hassle.
1. A Spanish will is exclusive to your assets located in Spain. It doesn’t preclude any will you may draw up in your home country whether before or after. This means that the Spanish will won’t overrule your national will and affects only your Spanish estate – providing your national will holds no provisions on Spanish assets.
2. Drawing up a Spanish will may help your heirs mitigate their tax bill. There’s a deadline of 6 months as from the time of the testator’s demise to file and pay Spanish Inheritance Tax. You can request a one-time six-month extension or deferral within the first five months of the death but heirs may still have to pay the penalty and/or delay interests depending on how late they actually pay (totaling 12 months). You can also request to fraction the IHT paying in instalments up to five years. After the six months deadline has elapsed your beneficiaries will incur in penalties for late payment typically ranging from 5%, 10% and 15% if paid in the next 3, 6 and 12 months as from the said deadline. If payment is made after 12 months from the deadline a surcharge of 20% is applied besides the accrued delay interests. Bear in mind that deposit monies held at a bank will be frozen upon death – access to them will be restricted until the IHT is settled with the tax authority.
Spanish wills have the advantage that they can be executed almost immediately whereas a UK or Irish one will no doubt exceed the six-month deadline attracting penalties from the Spanish Tax Office for late payment. The reason is that a Grant of Probate must be followed in your home country which takes a long time in my experience and besides is fairly expensive. It is usual that foreign wills take in excess of a year or more to be executed in Spain. This translates into higher expenses borne by your beneficiaries due to the surcharge for late payment incurred on surpassing afore mentioned six-month deadline.
So in a way, making a Spanish will helps to mitigate your heir’s tax bill as it will ensure they will be able to file IHT within the stipulated legal time frame of six months without attracting penalties and surcharges which could have been so easily avoided.
3. Drawing up a Spanish will saves both money and hassle. On making only a national will your beneficiaries will have to translate all documents (death certificate, will) into Spanish by a sworn translator, notarise them and affix to each of them the Apostille seal of the Hague Convention of 5th October 1961. They will also have to obtain a Grant of Probate which must also be translated into Spanish and apostilled. Additionally a Certificado de Ley (certificate of legal compliance) may be necessary explaining the inheritance procedure in a foreign country.
The above greatly – and unnecessarily I may add – increases the expenses for your beneficiaries besides delaying significantly the whole transfer of estate procedure; thus attracting the penalties highlighted in my point two above. A Spanish will eliminates the need to follow all the above steps.
4. Spanish wills are stored safely at no extra charge. On you making a Spanish will you will be given only a “copia simple” (simple copy) or “copia autorizada”. The original is stored by the Notary in his files for record. The Notary will send off to Madrid the details of this will to a registry known as “Registro General de Actos de Última Voluntad” (Central Registry of Last Wills) for safekeeping. Your beneficiaries can always request an authorised copy (“copia autorizada”) of the testator’s last will from the Notary who witnessed it. You can always know before which Notary it was made (if you happen not to know it) by means of requesting a “Certificado de Últimas Voluntades” from the aforementioned Central Registry of Last Wills. It’s just an A4 sized sheet of paper from the Ministry of Justice with the seal of the said registry which specifies which Spanish Notary witnessed the last will and the date on which it was made. The latest will always overrule any prior will unless specified otherwise.
Should you lose your copy, the notary office burn down or you simply don’t know before which Spanish Notary the will was made don’t panic, it doesn’t matter really. All Spanish will’s details are stored safely in the said registry free of charge. One can always request a copy and they will let you know before which Notary it was witnessed if you believe you are a beneficiary. You will have to provide an original death certificate (translated into Spanish with the Apostille seal affixed if the death occurred abroad) and the original “Certificado de Últimas Voluntades” (Certificate of Last Will). The Spanish death certificate is obtained from the civil registry in the municipality in which the death took place.
Be wary of opportunistic companies – read con – that charge you an annual fee to store ‘safely’ your Spanish will with state-of-the-art technology. As read above, this is unnecessary and they are just taking advantage of you.
5. Spanish wills drawn up before a Notary Public (Open wills) add security. Making a will is a personal act. It cannot be granted by means of a proxy. Normally these wills are set out in double column (Spanish and your native language) so you fully understand what you are signing. They are drafted by your appointed lawyer. If your command of Spanish is low it will be compulsory you draw up the will assisted by a translator (which can be an acquaintance with a good grasp of Spanish or typically your own lawyer) who will also sign it. The Notary will read out aloud the will in Spanish to make sure you fully understand and agree with its content. All this adds to the security on you granting a will in Spain.
6. The content of a Spanish will is governed by your own national laws. This means that you are not constrained by Spain’s forced heirship rules. Additionally, If you are British or Irish you have free testamentary disposition in Spain meaning you can make a will exactly the same as you would in the U.K. or in the R.O.I. albeit with all the additional advantages I’ve highlighted above for your loved ones.
Right, you’ve convinced me – what’s the next step for my heirs?
Once heirs have all three documents:
1. Original death certificate
2. Certificate of Last Will
3. Notarised copy of the testator’s last will
They may now obtain what is known as a Deed of Declaration of Acceptance of Inheritance (‘Escritura de Aceptación de Herencia’) before a Spanish Notary Public. With this deed they are now able to file, pay and lodge the death duties.
Only once IHT is paid and lodged – never before – will the property be registered under the beneficiaries’ name at the Land Registry where the property is located. Once registered, the property can be disposed of freely i.e. they can sell it on. Heirs cannot mortgage or sell any of the estate’ assets, such as the Spanish home, to pay IHT as it still doesn’t belong to them legally. This is something that escapes many as they are banking on the Spanish estate itself to foot the tax bill – won’t happen.
It is important to plan ahead to mitigate IHT, especially on large estates. A specialised lawyer can greatly reduce or even eliminate completely exposure to this tax. IHT rules vary widely from one region to another. There’s an ongoing trend to abolish IHT in Spain.
Ideally foreigners should make two wills; one in their home country ruling on their national assets and a second Spanish will drawn up in Spain which will rule exclusively on their Spanish estate. Spanish wills can be drawn up in Spain (Notary) or else at a Spanish consulate.
A Spanish lawyer can assist you both making and executing one.
“In this world nothing can be said to be certain, except death and taxes” – Benjamin Franklin.
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2.009 and 2.012 © Raymundo Larraín Nesbitt. All rights reserved.