Question on succession law in Spain

Iif someone dies in Spain, bearing in mind that 2/3 of the assets go to the children, what happens when there are no children to leave them to?

Do the assets automatically then go to the spouse or whoever is named in the will?"

Well I have been told that as Roy has made the apartment over to me if anything  happens to

him, so I assume it goes to me. But I am worried now how much I have to pay to take his name

of the deeds.

But do you have the specific clause in your will that you wish your assets to be dealt with as per law of your nationality?

Have you read about changes to the succession law in Spain , starting mid August?

If not,  it will go to other members of your family if that clause is not present, even if  the will States he is leaving it to you.

Apart from changing the name on the deeds,

What about inheritance tax? Fine if you live in an area with generous allowances, not so if it's somewhere like Murcia where allowances have been abolished

We live in Formentera so not sure about that. Will have to dig the will out and have a look. But I doubt

if it does have that clause in it. So they can overide me and give it to the children is that what you are saying?

Yes-spanish succession law does not allow you to choose who you leave it to,  2/3 has to go to children, I think the remaining 1/3 can be left to someone of choice.

UK law does allow you to leave it to whom you like, that's why you have to have this specific clause in your Spanish will that you wish for the law of your nationality to apply to your Spanish wil.

UK and Denmark have not signed up to this new law yet,  like other European countries have done, vfbut if they do then the same  clause will have to be in the UK will as well.

It is best to have a UK will for assets in UK, and a Spanish will for assets in Spain

Camposol, I have read differing opinions on whether UK's decison not to join actually helps or hinders the situation with a process called "Renvoi". I don't know the detail, but it seems it is not as clear as it used to be with UK residents holding Spanish assets, and whether seperate wills are now required. I am not qualified to opine on this. Certainly UK ctiizens now resident in SPain can cover matters by stipulating jurisdiction in a SPanish will.

Saludos

In reply to the original question, when we first made our wills it was explained that 2/3 of the deceased share would go to the children (both natural and adopted) but the right to remain in the property remains with the surviving spouse. In other words, even though the kids will own 2/3 of half the property, they have no rights to it until the surviving spouse dies.

In the case of there being no children, the surviving spouse inherits the deceased's half. We were also told that it was important to note that property and goods were treated as two separate items.

It was also pointed out that, as foreign residents, so not Spanish citizens, we could leave the property to our spouse without involving the children. That was back in 2008 so long before the new rules came in.

Late last year we were asked by the solicitors to include a clause stating that inheritance would be as per the laws of where we were citizens, in this case UK. It was not simply a case of simply adding that clause into the will but making completely new ones which we though was a bit of a waste of money.

We were also told that, because UK had not signed up to this agreement, it would be better to have one will for Spanish assets and one for UK assets as the UK says the law of the country of residence applies. It was also important that these wills did not contradict each other.

So, we had a Spanish will leaving half the property to the survivor and then to the children on that death. We had to change that to exactly the same thing but with the clause that both property and assets would be subject to the law of UK. They did give us a discount for the second wills but still thought it a bit of a waste of meney.

We also have wills in UK doing exactly the same thing, dividing UK assets to the surviving spouse and then split equally among the kids on that death and, importantly, naming the surviving spouse as beneficiary for any pension rights.

Phew, what a rigmarole.

So will I still have to pay inheritance tax, I am not looking at selling

at the moment. But would like this clarified, cannot seem to get in touch

with the solicitor we used.   But should I take Roys name of the deeds.

Plus utilities?

If only Roy's name on the deeds then you need advice from a lawyer to change to yours. If in both names it can probably stay as is.  

As I understand it original wills stand until August 2015 thereafter the wording has to change and to do this, if no other changes are to be made, it is more economical to go independently to notary who will give you a new copy of your will with the addition.  Cost c €50, 

The Spanish IT way is good in that it reduces any possible payment by inheritors, providing there is more than 1, because after demise of first parent the share involves little or no payment and value of estate is then greatly reduced in event of demise of 2nd parent. Well, that's how I read the situation.

As regards  to any inheritance tax you may have to pay Pat it will depend on the rules of where you live plus many other factors  involved...... It is a minefield that even the experts have different opinions on. However hopefully the lawyer you use will make the process as stress free as possible for you.

How have you worked it out that Spanish IT is a good thing?

It's an horrendous thing -pouses should be exempt from IHT anyway- how can it be fair to pay tax on the assets of the Deceased, having built them up together over many years with money that has already been taxed?

How can it be fair that if you live in Andalucia, you will probably pay no IHT, as they have a generous allowance, but if you live in Murcia you will probably pay thousands because it abolished all its regional alliances in 2013?

The Spanish IHT is the most  unjust, harsh, penalising taxI have ever come across.

You can't sell the property to pay the tax, and if you don't pay within 6 months, interest will be added.

How's that for heaping misery on the bereaved?

Pat and Roy- it's impossible to say if you will have to pay tax, as it depends on:

The regiona you live in, and the value of the assets.obviously if you live in Murcia region you will be paying it, Valencia region, probably not .

The state gives an abysmal allowance of just under 16 k euros per person., which won't make a dent in the average inheritance

Before the EU ruling which states that non residents must be treated in the same way as residents regarding IHT, a resident had to have lived in the region for 5 years before being able to take advantage of the regional allowances.

As non residents obviously will not be able to fulfil this requirement, I wonder if 

a) this requirement will be scrapped

B) non residents will have to have owned the property for 5 years, and residents have lived there for 5 years

Perhaps Maria de Castro will know?

Legal tip 841. European inheritances 
18 October 2012 @ 14:22 
 

Well thank you all for your help.

But will not be able to get over for another 6 months anyway. So Roy's name

can stay there. Nothing is straightfordward in Spain as I have learnt over the years.

Thank you all!

 And for those interested, a quick explanation on Spain Inheritance Law:

A question for Maria.

If a UK resident owns Spanish property, and has a UK will, is there any impact of the change. For example does the UK will now have to state that the UK law governs all assets including UK and Spain, or does it follow that because the UK resident has made the will in the UK, that this is assumed? IN other words is a separate Spanish will no longer necessary?

Appreciate your input.

As a UK resident owning property in Spain you need no new will to have the transmission-by-death of your Spain assets made in accordance to the will in the Uk.

It was never necessary, although many people made and makes specific Spanish wills to avoid burocratic complications to their heirs.Those " instrumental wills" for naming them in a way you will better undestand, had always to be in full accordance to the National Inheritance Law. They still have to if you grant them. They were... just an instrument to the real UK ones.

It will not be necessary after August 2015 as UK is not under these regulations. So your old UK will, will still be fully valid .

Even if the UK were under this new regulation, as you want your residency- same as nationality Inheritance Law to be applied, you would not have to make a new will.

This new Law is of special importance to foreign people, residents in Spain who dies after August 2015. If not granted/stated otherwise, all their inheritance affairs after death will be submitted to Courts and Legislation of Spain( with some special features and exceptions) 

If you want to avoid this, you can --- from now, you do not need to wait till August--- make a will in Spain by which you  choose your nationality Law to regulate the whole inheritance.

 

Thank you Floella yes both our names are on the deeds. So I will leave it as it is for now.