Inheritance

[Bevdeforges]

Originally Posted by morlandg

Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
Graham

I don't know about Spanish law, but under French law there is a special type of company you can set up, specifically for ownership of real property (land and buildings). There may be something similar in Spain - another of those questions you have to ask the notaire about very specifically (same as in France).

In France it's called an SCI - société civile immobilière - and it allows you to hold shares in a property rather than owning the property directly. It's used to get around some of the inconveniences of the French system of "indivision" where heirs (normally the children) inherit property in equal shares, but can do absolutely nothing with it unless all the owners agree.
Cheers,
Bev

[Stravinsky]

Originally Posted by morlandg

1. non-movable assets in spain (eg property) must be handled via the spanish succession rules and any spanish will must take this into account. They cannot be freely disposed of by a will.
2. movable assets (eg company shares) can be handled by a will prepared in the UK and later enforced in spain

No ....as I said before, because of reciprocal arrangements the British will takes precedence. The whole estate is treated under UK rules, and therefore your house is not automatically split between children etc etc

The important thing is to have a UK and Spanish will, mirroring each other

[Xose]

Originally Posted by Stravinsky

No ....as I said before, because of reciprocal arrangements the British will takes precedence. The whole estate is treated under UK rules, and therefore your house is not automatically split between children etc etc

The important thing is to have a UK and Spanish will, mirroring each other

Hi Strav.
As with everything legal, there are many opinions amongst the "Professionals" let alone the non.

All I can say is that there seem to be one hell of a lot of preofessionals dealing on how to avoid Spanish Inheritance - including things like pre-inheritence, selling to the inheritors to be or even donation, all of which they will have to pay a Tax for but WAY more straight forward than inheritence.... and not to mention, the 6 month payment time limit for example, certain things are made much simpler.

Here's an example of why I, personally, wouldn't wait for a judges interpretation post inheritance challenges or some such and would get definitive answers from both UK and Spanish authorities.

15 Inheritance & Wills - Living In Spain

Xose

[Xose]

Originally Posted by Xose

Hi Strav.
As with everything legal, there are many opinions amongst the "Professionals" let alone the non.

All I can say is that there seem to be one hell of a lot of preofessionals dealing on how to avoid Spanish Inheritance - including things like pre-inheritence, selling to the inheritors to be or even donation, all of which they will have to pay a Tax for but WAY more straight forward than inheritence.... and not to mention, the 6 month payment time limit for example, certain things are made much simpler.

Here's an example of why I, personally, wouldn't wait for a judges interpretation post inheritance challenges or some such and would get definitive answers from both UK and Spanish authorities.

15 Inheritance & Wills - Living In Spain

Xose

...by the way, don't be tempted to just read the top bit - this shows that the UK will is enough if registered in Spain under article 9. Read on re:- anyone resident in Spain who, under Spanish law, loses out and takes it to court.......

[Stravinsky]

Originally Posted by Xose

Hi Strav.
As with everything legal, there are many opinions amongst the "Professionals" let alone the non.

All I can say is that there seem to be one hell of a lot of preofessionals dealing on how to avoid Spanish Inheritance - including things like pre-inheritence, selling to the inheritors to be or even donation, all of which they will have to pay a Tax for but WAY more straight forward than inheritence.... and not to mention, the 6 month payment time limit for example, certain things are made much simpler.

Here's an example of why I, personally, wouldn't wait for a judges interpretation post inheritance challenges or some such and would get definitive answers from both UK and Spanish authorities.

15 Inheritance & Wills - Living In Spain

Xose

Oh I know that, but thats because of the extremely high inheritence tax here, not because of the succession.
Everything I have read anywhere ... all legal advice I have received ..... even David Searles book iirc which is updated regularly, all claim that the UK will takes precedence.
It is true to say though that when the second spouse here dies and leaves to a non resident, the IHT can be absolutely horrendous!

[Xose]

Originally Posted by Stravinsky

Oh I know that, but thats because of the extremely high inheritence tax here, not because of the succession.
Everything I have read anywhere ... all legal advice I have received ..... even David Searles book iirc which is updated regularly, all claim that the UK will takes precedence.
It is true to say though that when the second spouse here dies and leaves to a non resident, the IHT can be absolutely horrendous!

Indeed, there are several issues to consider. Not having a double taxation treaty with regards to inheritance Tax is a major one. The possibility of paying Inheritance Tax here and in the UK...OUCH!!

So, you don't agree with the article ref if challenged, there could be problems, then ?

Defenetely an area in which each person with possible exposure should satisfy for themselves I think.

Providing this interpretation does not change, there is in practice only one major difficulty. If a person who would have benefited under the Spanish Law of Obligatory Heirs (Ley de Herederos Forzosos) challenges in the Spanish courts a will of a UK national based on the Article 9 declaration providing for the free disposal of property, the Spanish courts will first look at the UK law, find that it applies Spanish law to the disposal of property, and so apply Spanish law –and a person who would have inherited under the Spanish Law of Obligatory Heirs will therefore have his challenge upheld.

If therefore there is any possibility that you might make a will, which disposes of your Spanish property in a way, which could be challenged, it is definitely necessary to consult a lawyer with specialist expertise in this area.

[Stravinsky]

Well I know this is Spain, and anything can happen
What Im saying is that the advice I have been given both professionally and have heard over time is different to what is on the site of a property sales company ... thats all I can say

Also I've never heard of such a thing happening, and I do know of several people who have died over here and been through the system.

There were lots of nightmare scenarios I heard back a while where people were worried about their partners dying and then being thrown out of the house because they no longer owned the majority of it ..... I just have never heard of such a scenario happening, or seen people complaining that its happened to them.

I'm open to anything that proves it wrong though

Personally I plan (and I know its almost impossible) to sell up in maybe 10 years and rent so theres no Spanish property to come into the equation. I have to time it just right though

Originally Posted by Xose

Indeed, there are several issues to consider. Not having a double taxation treaty with regards to inheritance Tax is a major one. The possibility of paying Inheritance Tax here and in the UK...OUCH!!

So, you don't agree with the article ref if challenged, there could be problems, then ?

Defenetely an area in which each person with possible exposure should satisfy for themselves I think.

Providing this interpretation does not change, there is in practice only one major difficulty. If a person who would have benefited under the Spanish Law of Obligatory Heirs (Ley de Herederos Forzosos) challenges in the Spanish courts a will of a UK national based on the Article 9 declaration providing for the free disposal of property, the Spanish courts will first look at the UK law, find that it applies Spanish law to the disposal of property, and so apply Spanish law –and a person who would have inherited under the Spanish Law of Obligatory Heirs will therefore have his challenge upheld.

If therefore there is any possibility that you might make a will, which disposes of your Spanish property in a way, which could be challenged, it is definitely necessary to consult a lawyer with specialist expertise in this area.

[Xose]

Originally Posted by Stravinsky

Well I know this is Spain, and anything can happen
What Im saying is that the advice I have been given both professionally and have heard over time is different to what is on the site of a property sales company ... thats all I can say

Also I've never heard of such a thing happening, and I do know of several people who have died over here and been through the system.

There were lots of nightmare scenarios I heard back a while where people were worried about their partners dying and then being thrown out of the house because they no longer owned the majority of it ..... I just have never heard of such a scenario happening, or seen people complaining that its happened to them.

I'm open to anything that proves it wrong though

Personally I plan (and I know its almost impossible) to sell up in maybe 10 years and rent so theres no Spanish property to come into the equation. I have to time it just right though

Absolutely with you on that one. Let it not be said that in Spain there is no conflict of interest advise Hence my saying that each should satisfy themselves.

I guess it would be easy enough to check "back home" if English law does indeed refer a Spanish house sale back to Spanish law. If that's true, then in the case of a contested will, there could be problems.

Be a shame for you to guess when you're going to kick the bucket though
Bit like the wealthy folk issue in the UK with the pre-inheritence 7 year rule etc. How about pre-inheritance, donation, cheap sale - all with a Sufructo in place of course

[Pesky Wesky]

Originally Posted by morlandg

Does anyone know if the Forced Heirship rules apply to we expats in Spain?
The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
I have had conflicting advice -
1.these rules DO apply and
2.others say that they only apply to spanish citizens - British inheritance laws and wills apply to british citizens.
A definitive answer to this vexed question would certainly be welcomed by me but maybe to a lot of other expats also!

Have just found this page. Point 6 talks about who inherits what.
Main features of Spanish wills | Legal guide provided by English-speaking Spanish lawyers with iAbogado, Spain

[Stravinsky]

Isn't that all to do with Spanish wills ... IE, It didnt address the English citizenship / english will / ovveride issue

Originally Posted by Pesky Wesky

Have just found this page. Point 6 talks about who inherits what.
Main features of Spanish wills | Legal guide provided by English-speaking Spanish lawyers with iAbogado, Spain