Changes To Spain’s Inheritance And Gift Tax Law

Raymundo Larraín Nesbitt, February, 21. 2015

Regular legal-contributor Raymundo Larraín Nesbitt examines the legal impact in Spain on matters such as non-resident taxation and inheritance tax brought about by the key ruling of the European Court of Justice (ECJ) from last 3rd of September 2014 (Case C-127/12).

By Raymundo Larraín Nesbitt
Lawyer – Abogado
21st of February 2015

 

 

 

European Court of Justice. Photo credit: Cédric Puisney

 

Introduction

Continuing the trend set out last month on Succession, I think it was long overdue I wrote an article on the ECJ’s landmark ruling of last 3rd of September 2014. The legal repercussions, on the wake of this ruling, have rippled wide and deep across Spanish law; particularly regarding non-resident taxation. For this article’s sake the most prominent change is Law 26/2014 of the 27th of November which amends, amongst other laws, the Personal Income Tax Act (I.R.P.F.), the Non-Resident Income Tax Act (I.R.N.R.) and the Inheritance and Gift Tax Law (Impuesto de Sucesiones y Donaciones, I.S.D. for short). These changes came into force on the 1st of January 2015. I had already referred to them fleetingly in December’s article Taxes on Selling Spanish Property.

Law 26/2014 adapts the decision taken by the ECJ amending internal Spanish national laws. In a nutshell, amongst many other changes that escape the goal of this article, it puts an end to (fiscal) discrimination between residents and non-residents in a wide array of matters; most notably on inheritance and gift taxation.

If you are looking for in-depth articles on Spanish Inheritance Tax please follow these links: 

 

For the purpose of this article, when I make reference to ‘non-tax residents’ I will always be referring to citizens which are either tax resident in another Member State of the European Union or else in the European Economic Area (E.E.A.). Just to clarify, the below-listed changes do not benefit tax residents outside of the EU or EEA.

I will now, as briefly as I can muster, highlight the major changes.

Succession – Situation Prior to the ECJs’ Ruling

To better understand the scope and wide impact of the legal changes it is necessary for me to digress and explain what the existing situation was prior to the ECJ’s ruling.

Basically there were two sets of allowances on inheritance tax; one set out by rigid state law, which is the common regime and is applied nationwide subsidiarily, and another more indulgent regional one set out by each of Spain’s seventeen Autonomous Communities. Broadly speaking, state law applied to non-tax residents by default in all cases. Regional tax laws applied to residents by default.

State law is hands down more unforgiving and decisively less lenient than regional tax allowances which only applied to (tax) residents. Non-tax residents were forced to follow state inheritance law regardless of where the estate was located in Spain.

Spain is divided administratively into seventeen Autonomous Communities. Each of these have devolved competencies on Inheritance tax matters up to a certain point and may apply generous deductions to the point that Inheritance and Gift tax is almost suppressed in some Autonomous Communities. Making a sweeping generalisation, and just to make things clearer to understand, Spain is divided broadly in communities ruled by centre-right and centre-left wing parties. Their ideological spectrum directly impacts on taxation.

On the one hand, Autonomous Communities ruled by centre-right wing parties (i.e. Partido Popular) have generous tax provisions in place almost suppressing inheritance and gift tax i.e. Madrid, Basque Country, Navarre, Valencia, Balearic and Canary Islands. You can read further in-depth on the matter in my article Making a Spanish Will from 2012.

On the other hand, you have autonomous regions led by centre-left parties (or left-wing) which, coherently with their ideology, not only do not apply generous regimes to succession but even penalise it furthermore as they firmly believe wealth ought to be ‘redistributed’.

This is the ideological trench warfare in which non-tax residents are parachuted in being caught in the crossfire. Non-tax residents were, until the ECJ’s ruling, unfairly barred from taking advantage from the generous regional tax allowances which were only reserved to residents and significantly improved upon those set out by state law.

A non-tax resident beneficiary of a deceased’s Spanish estate followed the general state law on inheritance and the inheritance was directly dealt with from Madrid (centrally as opposed to regionally in the case of tax residents). This was irrespective of in which of the seventeen Autonomous Communities had the deceased passed away or where the majority of his assets were held. In other words, non-tax residents were being discriminated as, unlike tax residents, they could not take advantage of the generous tax provisions which almost suppressed inheritance tax in some Autonomous Communities.

This was clearly incompatible with the founding principles and self-admitted goals of a European Union which vies to create a single economic and political space posed to compete in equal footing with the US, China and other major rising superpowers.

Post-ECJs’ Ruling – Changes to Spain’s Inheritance and Gift Tax Laws

The European Commission, through the ECJ’s ruling of 3rd of September 2014, ended all discrimination and forced Spain to amend its internal laws and accommodate the European principles on which the EU is based on.

As an example of such changes, Spain’s Constitutional Tribunal (Tribunal Constitucional) has annulled in March 2015 a part of Law 13/1997 relating to inheritance tax (ISD or IHT) from the Autonomous Community of Valencia when it states that only residents with habitual residency in said Autonomous Community can benefit from the lenient tax allowances on inheritance procedures (decisively more generous than state law as it allows an allowance of up to 99% for next-of-kin beneficiaries, Groups I and II). The Constitutional Tribunal has quashed this and stated that these allowances also apply to non-residents in the Community of Valencia (STC 3337/2013, from the 18th of March 2015). The effects of this ruling are ‘pro futuro’; going forward. It doesn’t affect closed matters.

Without further ado the changes brought about by Law 26/2014 (third final disposition):

 

I. Inheritance Rules

 

a) Deceased is non-tax resident. If the deceased was resident in a Member State of the European Union or else in the European Economic Area (non-tax resident in Spain) the beneficiary will now benefit from:

• The regional tax allowances where the majority of the assets of the deceased are located in.
• If there are no assets in Spain, the rules of the Autonomous Community where the beneficiary lives apply.

b) Deceased is tax resident and beneficiary is non-tax resident. If the deceased was resident in Spain and the beneficiary is resident in a Member State of the European Union or else in the European Economic Area (non-tax resident) he will benefit from:

• The regional tax allowances where the deceased lived.

 

II. Gift Rules

 

a) Immovable property located in Spain (i.e. real estate). If a non-tax resident is donated an immovable asset (located in Spain) he will now be entitled to the regional tax allowances of the Autonomous Community where it lies.

b) Immovable property located outside of Spain (i.e. real estate). If a tax resident is donated an immovable asset located in a Member State of the European Union or else in the European Economic Area, other than Spain, he will be entitled to the tax allowances of the Autonomous Community where he lives in Spain.

c) Movable property located in Spain (i.e. a painting). If a tax resident in a Member State of the European Union or else in the European Economic Area is gifted a movable asset located in Spain he is entitled to apply the tax allowances and gift rules of the Autonomous Community where that asset spent most of the days during the previous five years.

Consequences of the Changes in Inheritance and Gift Tax Laws

When one of the parties is non-tax resident in Spain the above-mentioned changes will bear a dramatic impact on the beneficiary’s taxation; significantly decreasing or even suppressing the tax altogether providing the estate is located in one of the Autonomous Communities outlined above with generous allowances on inheritance and gift taxation. In other words, for clarity’s sake, a beneficiary stands to pay much less now under this new law as from the 1st of January 2015.

For those who are non-tax resident in the E.U. or E.E.A. there are no changes. State law still applies to them unabated.

Changes to Spain’s Inheritance and Gift Tax Law – Conclusion

This is a welcome respite and much-needed change. Kudos to European lawmakers. It made little to no sense to discriminate against fellow EU-members. The previous regulation clearly undermined the principles in which the European Union is firmly grounded upon. Member States must all row as one if the Union is to stand. Or we all become one thing or all the other; but not both. Spain can’t have it both ways.

A house divided against itself cannot stand” – Abraham Lincoln.

American 16th US President (1809 – 1865). He resolutely ensured a pro-union victory and brought about the emancipation of slaves.

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in inheritance, taxation, litigation and conveyancing. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. Voluntas omnia vincit.

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Spanish Wills and Probate Law In Light Of European Regulation 650/2012

Raymundo Larraín Nesbitt, January, 8. 2015

Solicitor Raymond Nesbitt explains the legal consequences European Regulation 650/2012 (Brussels IV) has on foreign resident’s Spanish Wills.

By Raymundo Larraín Nesbitt
Lawyer – Abogado
8th of January 2015

 

 

 

Introduction

This article serves as a gentle reminder of the impact European Regulation 650/2012 (Brussels IV) will have on all foreign residents who live and own assets in Spain and who have made a Spanish will (I am particularly thinking of British and Irish nationals).

European Regulation 650/2012, in force since 2012, introduces significant changes to Succession that may require you to make a new Spanish will. These changes will come into force as from the 17th of August 2015. Anyone affected by it that passes away on or after the said date, and who has not updated their Spanish will accordingly, may cause devastating problems to their beneficiaries (normally family). Let this article act as a warning to all those affected by it.

These devastating effects on your family include, but are not limited to, protracted, lengthy and expensive litigation besides fights that tear families apart. In my professional experience the bitterest litigation takes place within families fighting over inheritance money.

If you wish to avoid serious problems to your loved ones you should heed the advice given in this article.

This Regulation has EU-wide impact. If you own property elsewhere in Europe, for example in France or Italy, and your habitual residence is located there you may face similar problems to the ones described in this article for those who have taken up residency in Spain. Take legal advice.

If you are looking for in-depth articles on Spanish Inheritance Tax please follow these links: 

 

To close, I have structured my article as a F.A.Q. for ease of comprehension. Please feel free to add any comments below and I will do my best to address any legal queries relating to it.

What Do These Changes Entail?

Prior to this Regulation, British nationals (foreigners in general) had free testamentary disposition in their Spanish wills over their Spanish estate following art. 9.8 of the S.C.C. providing their own national law allowed it (meaning they could leave their Spanish estate to whoever they pleased). This avoided a testator from following Spanish forced heirship rules that establish that 2/3rds of the Spanish Estate would go to their children. Almost everyone buying property in Spain will have been advised by their conveyance lawyer to draw up a Spanish will exclusively for their Spanish assets.

Regulation 650/2012 changes the rules of the game as it introduces that Succession in all Member States will now be ruled by the laws of the land where the testator holds residency status in lieu of his own national law (article 20). The United Kingdom and the Republic of Ireland have opted out of this Regulation.

This change translates in practice, for example, for an English resident in Spain who’s made a Spanish will that his Succession will now be governed by default by Spanish Inheritance Laws instead of England and Wales’ Succession Laws.

Spanish Succession Laws stipulate that both descendants (children or grandchildren) and ascendants (parents or grandparents) will inherit with priority over a surviving spouse. They are entitled, by law, to inherit fixed shares of the estate. Spain’s Civil Code dates back to the nineteenth century and needs to be brought up to speed with modern times.

Meaning that the Spanish will of this Englishman as it stands now, unchecked, may be successfully contested by forced heirs under Spanish Succession Laws unless he has specifically opted that his will is governed by his own national law (England and Wales) in accordance with articles 38 et seq. of this Regulation. In other words, your Spanish will must make express reference that your Spanish estate must be disposed of following your own national law (as opposed to Spain’s which is applied by default unless you make a specific provision in your Spanish will).

Following on the above example, a resident Englishman decides to leave everything to his stunning blonde girlfriend (twenty years her senior) and cut out his three children from a previous marriage. If he doesn’t make a new Spanish will his children (any of them) can challenge successfully his existing Spanish will leaving his girlfriend exposed and unprotected to protracted litigation. It is almost a certainty that his children will win the case under this new Regulation. You can only leave everything to your new gorgeous girlfriend under English law and for that you need to opt specifically for it on making a new Spanish will.

A resident testator can only avoid having their will contested by making a new Spanish will that reflects his personal choice (to have his own national law governing his Succession in lieu of Spain’s Inheritance Laws which do not contemplate free testamentary disposition).

Who Does It Affect?

In a nutshell, Regulation 650/2012 affects all foreigners who have their habitual residency in Spain and die on or after the 17th of August 2015 (articles 23 and 83). Spanish nationals may disregard the whole article as they are unaffected by the changes. Specifically:

Foreigners who have their habitual residence in Spain. It affects Spanish wills witnessed prior to the 17th of August 2015 or else which are non-compliant with Regulation 650/2012 terms i.e. there is no mention that your Spanish estate should be disposed of following your own national law. If you are resident in Spain and have made a will according to your own national laws but it is not clearly reflected within (e.g. there is no specific provision in the Spanish will that your Spanish estate should be ruled by your own national laws) you may need to make a new Spanish will compliant with this Regulation. It really falls to a case-by-case scenario; seek a lawyer’s advice to double-check your Spanish will if you are unsure.

Non-resident foreigners, who have made a Spanish will, and plan to become resident in Spain at some point in the future i.e. British family who bought off-plan property in Spain and plan to sell up in the UK and retire to Spain over the next years.

Can I Choose my Own National Tax Law Besides Opting for my National Succession Law?

Short answer is no.

What this Regulation entitles you is to choose freely the Succession Law of your own nationality (i.e. England and Wales or Scotland’s) in lieu of Spain’s compulsory heir rules which, following this new Regulation, applies by default if your habitual residency is in Spain at the time of your death on or after the 17th of August 2.015.

I stress, to avoid misunderstandings, that you cannot choose what Inheritance Tax Laws apply to your Spanish estate. As a rule of thumb, any beneficiary, whether resident or non-resident, inheriting assets located within Spanish territory has to pay Spanish inheritance tax.

So, for example, an Englishman whose habitual residency is in Spain and inherits Spanish assets will pay Spanish inheritance tax.

And likewise, a non-resident Scottish man who inherits Spanish assets will also pay Spanish inheritance tax.

You cannot opt out or choose your own national Inheritance tax laws on inheriting assets located in Spain. You have to pay Spain’s IHT.

What Can I Do? Can I Simply Update my Existing Spanish Will?

Short answer is no.

After speaking with multiple notaries it is clear that a simple addendum (codicil) cannot be made to your existing Spanish will without incurring in legal risks. In order to avoid your will being successfully contested at the time of your death it is necessary you make a new Spanish will.

Only by making a new Spanish will does it ensure you have a cast-iron guarantee that it will remain uncontested. If you do not heed my advice your outdated will may be challenged by any forced heir under Spain’s Succession Laws. And they will most likely win the case.

If I Make a New Spanish Will What Happens With The Old One? Could there be a Conflict?

No. In Spain the newest will always overrules any prior ones. Spain has a Central Registry of Wills located in Madrid. Any will that is witnessed by a notary anywhere in Spain will have the details sent to this central registry. The original will is stored for safekeeping by the notary himself. There shall be no conflicts.

The only problem is if you decide to make a holographic will instead of having it witnessed by a public notary. I highly recommend this is never done as Spain has very strict rules for these type of wills and they can be easily annulled.

Can I grant a Power of Attorney and have my Spanish Lawyer make a New Will for me?

No. Making a will under Spanish law is a personal act that requires it is made in person and not through proxies.

I am a British/Irish national resident in Spain. Neither the UK nor the RoI have Ratified European Regulation 650/2012, Therefore I don’t Need to Follow your Vested Advice. Thank You Very Much.

It’s beside the point.

Spain has ratified it and your assets are located in Spain for the purpose of this article. When you pass away your Spanish Estate will be unwinded following your own national laws. Both the UK and the RoI make an internal “renvoi” to Spanish Succession laws which happen to follow Regulation 650/2012. So regardless if neither the UK nor the RoI have ratified this Regulation, Spain has and your Spanish estate will be bound by it following European Regulation 650/2012.

I am a British/Irish national and NOT resident in Spain. I Don’t Plan to Become Resident in Spain.

In such a case this Regulation does not affect you. It only affects existing residents in Spain or else those who at some point in the future plan to take up residency in Spain. There is no need for you to make a new Spanish will. You may disregard the whole article.

I am a Foreign Resident Living in Spain. I Plan to Leave All (or Most of) My Estate to My Spouse/Partner. I Have Children (or Grandchildren) and my Parents (and Grandparents) are all Dead. Do I Still Need to Make a New Spanish Will?

Yes, you would need to make a new Spanish will. You should do it before August’s deadline.

It is important to note that Spanish law will govern the estates of all foreigners who have their habitual residency in Spain and who die on or after the 17th of August 2015 as per art 83 of this new Regulation. In other words, Spanish law will govern by default the estates of all foreign residents unless a specific provision is worded in their Spanish will to avoid it.

Children, under Spanish Succession law, have priority on inheriting over a surviving spouse; regardless if they are from a previous marriage or not. They are entitled to 2/3rds of the deceased’s estate. Your children – any of them – could apply to a Spanish court to have your will set aside. They would most likely succeed under this new Regulation leaving your wife or partner in dire straits i.e. they could for example inherit the villa where your wife/partner currently lives in and throw her out leaving her unprotected.

If you care for your partner/spouse’s future well-being act now and make a new Spanish will according to your own choices (providing of course your own national law allows it).

The same rule applies to grandchildren. Grandchildren also have priority on inheriting over the surviving spouse. They would likewise be entitled to 2/3rds of the estate.

In order to legally leave everything to your wife (or partner) you need to override Spanish Succession Laws by making a new Spanish will and specifically opt that your own national law governs the will (E.g. England and Wales’) in lieu of Spain’s Inheritance laws.

I am a Foreign Resident Living in Spain. I Plan to Leave All (or Most of) My Estate to My Spouse/Partner. I Do Not have Children (or Grandchildren) and One (or Both) my Parents/Grandparents are Alive. Do I Still Need to Make a New Spanish Will?

Yes, you need to make a new Spanish will.

If there are no descendants (children or grandchildren), ascendants (parents or grandparents) of the deceased are next in line in the pecking order (arts. 809, 810 and 935 et seq. of the S.C.C.). They have priority on inheriting over the surviving spouse. You run the risk of having one of your parents, or both, contesting your will and leaving your spouse or partner unprotected as a result.

Parents of the deceased are entitled to half of the estate if the deceased wasn’t married to their partner.

Parents of the deceased are entitled to one-third of the estate if the deceased was married to the surviving spouse.

I am a Foreign Resident Living in Spain. I Plan to Leave All (or Most of) My Estate to My Spouse/Partner. I Do Not have Children (or Grandchildren) and my Parents (and Grandparents) are all Dead. Do I Still Need to Make a New Spanish Will?

No. Your existing Spanish will leaving all (or most of) your estate to your spouse/partner should suffice.

I have read your article but the 17th of August 2.015 is now past; Is it now too late to make a new Spanish will in compliance with this European Regulation or can I still make a new will?

No, it is not too late. In fact you should make a new Spanish will immediately updating it. You can make a new will at any moment after said deadline. The problem I highlight is only if you die on or after the 17th of August 2.015 and you have not updated your will.

Spanish Wills and European Regulation 650/2012 – Conclusion

To avoid potentially devastating consequences to your loved ones that may lead families to fight over inheritance money it is your duty to have your existing Spanish will checked by a Spanish lawyer and, only if necessary, to make a new Spanish will compliant with European Regulation 650/2012. This will allow your own national law to be applied to your late estate in lieu of Spain’s Inheritance Laws.

Making a new Spanish will typically has an individual cost of between €100 to €250. This is a paltry amount compared to the dozens of thousands of euros your family stands to lose unless you take evasive action now before August’s deadline; not to mention the additional grief and aggravation you will spare them at a time of bereavement. It is in truth a small price to pay for peace of mind.

Surviving spouses or partners are the ones who stand to lose most (or all) under this new Regulation unless you act now.

Remember, you have until the 17th of August 2015 to make a new Spanish will if this Regulation affects you. Do not take chances with your loved ones’ well-being and plan ahead for your demise.

If you fail to plan, you plan to fail” – Benjamin Franklin.

Founding Father of the United States. Exceptionally gifted scientist, inventor, diplomat, writer, printer, postmaster and political theorist. Even politician in his spare time; nobody’s perfect.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in inheritance, taxation, litigation and conveyancing. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

Legal services Larraín Nesbitt Lawyers can offer you

 

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          Succession and WillsEuropean Commission

 

Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice. This article may be posted freely in websites or other social media so long as the author is duly credited. Plagiarizing, whether in whole or in part, this article without crediting the author may result in criminal prosecution. VOV.

2.015 © Raymundo Larraín Nesbitt. All rights reserved.

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Non-Residents: Six Advantages of Making a Spanish Will

Raymundo Larraín Nesbitt, August, 8. 2012

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

 

Spanish Inheritance Tax Overview

 

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.

 

Making a Spanish Will: The Advantages

 

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.

In Conclusion

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.

Founding Father of the United States. Exceptionally gifted scientist, inventor, diplomat, writer, printer, postmaster and political theorist. Even politician in his spare time; nobody’s perfect.

 

Larraín Nesbitt Lawyers, small on fees, big on service.

Larraín Nesbitt Lawyers is a law firm specialized in inheritance, taxation, litigation and conveyancing. We will be very pleased to discuss your matter with you. You can contact us by e-mail at info@larrainnesbitt.com, by telephone on (+34) 952 19 22 88 or by completing our contact form.

 

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