Can this be done?

Hi

My sister lives in Spain, unfortunately on her own after her partner passed away 5 years ago. She survives on a basic state pension and just about makes ends meet.

She has never had the deeds to the house changed into just her name and in the 5 years she met another partner who spent about £100k on the property but they have now separated.

My question is, is it possible for the property to be transferred into her sons name? I'm thinking this in order to make things as simple as possible if she were to pass away (she is in her 70's and not in the greatest health). What would the implications of this be? We would cover all of the solicitors costs.

I'm also a bit concerned about the amount owed to her ex partner. Could her son take out a mortgage against the preoperty to pay him off?

She lives in the Malaga area.

Thanks for any advice.

Solicitors' fees are the least of your worries.  It's the taxes that should concern you. 

If she transfers it to her son, there will be 7% (8% on anything over €400,000) property transfer tax.  The property is likely to be worth minimum €200,000 given what her ex spent on it and probably a good deal more.  So there's probably €15,000 to €20,000 there.

If she has been resident in Spain for at least three years she will be exempt from capital gains tax but only if she has Spanish tax certificates to prove it.  If not, that will be a substantial amount.

If she dies in the reasonably near future, there will be inheritance tax to pay on the money she receives from her son from the sale of the house.

If you do nothing but make sure her will is in order, I believe that the transfer tax and capital gains tax are waived but I'm not expert.  You need a specialist tax adviser rather than a general lawyer.

I think you will find that there are various alternatives, however it will cost you the same to transfer the property to anyone as it would if it were sold, about 10% of it's value, and your Mother would be liable to capital gains on the calculated profit that she had in theory made by transferring the property. So it could be costly, It may work out cheaper for her to make a Spanish will and leave the property to the person of her choice. I think that you need legal help with this matter, to be on the safe side. I would recommend Marbella Solicitors who have offices all along the coast and don't charge for a consultation, so you've got nothing to loose by contacting them. Good luck

I think that the big question here is who's name is on the deeds now and if it is her ex partners was it left to her in his or hers will as to me it appears that she is living in someone else's property

I would certainly reccomend a consultation with a good property solicitor asap.

If her ex-partner (I presume they weren't married) had kids,they would have a claim to title under Spanish inheritance law that would be greater than your sister's.  His kids would be entitled to at least a third of his half of the property.

Really messy.  Get good legal advice.

Hi, thanks for all of your replies.

In answer to your questions:

The deeds state my sisters name and her ex partner (that passed away) as she has never changed them. His will stated that everything in Spain should be left to her and everything in the UK should be left to his daughter. We have been told though that the will was not valid in Spain so I have no idea where that leaves her. His daughter has not been in touch for years now.

My nephew is so concerned about what would happen if she were to pass away. He has a family and good job in the UK so moving out there isn't really an option. As my sisters will states that everything should go to him where would that leave him both legally and financially? Would he have to pay anything to resolve this? Could any legal fees be paid from the sale of the house or is he going to have to pay out potentially thousands to sort this? I'm so worried for him and wish my sister would just get things sorted.

Thanks folks

Daisy, CONSULT A LAWYER, it's FAR too involved & whyever would you take any strangers word on the forum anyway?

EDITED: However, as her name is on the deeds with her ex partner's & he's passed away (5 yrs ago!!!) it seems logical (to me) she owns the property but why has she not paid inheritance tax ... another issue. She needs to see a lawyer AND she also needs to make a SPANISH will as seemingly she hasn't. Am I correct?

Hi

I shall be consulting a lawyer about this, it's just knowing where to start.

Thanks for all of your advice to date.

Regards

Dear Daisy:

Plese have answers/comments below in bold green ( same text as your email): 

Hi

My sister lives in Spain, unfortunately on her own after her partner passed away 5 years ago. She survives on a basic state pension and just about makes ends meet.

She has never had the deeds to the house changed into just her name and in the 5 years she met another partner who spent about £100k on the property but they have now separated.

My question is, is it possible for the property to be transferred into her sons name? Yes, it is possible. Did her partner leave a will for the Spanish property? That will ease proedures as it will simplify the process that the spanosh validation of the UK probale brings attached. I'm thinking this in order to make things as simple as possible if she were to pass away (she is in her 70's and not in the greatest health). What would the implications of this be? Taxes and Notary/Registrar charges. Why do not wait till she passes away as more taxes reductions will be available then?  We would cover all of the solicitors costs.

I'm also a bit concerned about the amount owed to her ex partner. Could her son take out a mortgage against the preoperty to pay him off? Yes, he could. Is the expartner claiming this?

She lives in the Malaga area.

Thanks for any advice.