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Discussion Starter · #1 ·
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!:cool::confused::confused2:
 

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inheritance laws

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!:cool::confused::confused2:
Hmmmm, interesting. I'm in the letter a category above, although I'm married to a Spaniard, but I'm not sure what can only dispose of half of his/her assets by wills or donations means. Does that mean that you have to leave 50% to your child and can leave the other 50% to others if you want to??
 

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Discussion Starter · #3 ·
Hmmmm, interesting. I'm in the letter a category above, although I'm married to a Spaniard, but I'm not sure what can only dispose of half of his/her assets by wills or donations means. Does that mean that you have to leave 50% to your child and can leave the other 50% to others if you want to??
Yes - exactly!
 

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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!:cool::confused::confused2:

Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense. :)

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half.

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose
 

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Discussion Starter · #6 ·
Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense. :)

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half.

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose
Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham
 

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Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham
The term in French is "usufruit" which I've seen translated as "usufruct" - though I don't think I've ever seen that word used in English. It basically means that ownership is split into the thing itself, and the benefits of the thing - meaning that while the kids may "own" the house (or whatever), the surviving parent gets the use of the property (or any income from renting it out).

Normally, inheritance law of the country in which the decedent was living at the time of their death takes precedence. However, for real property (land and buildings), it's the inheritance law of the country in which the property is located. So, the house in Spain is subject to Spanish inheritance law, while the house in the UK passes according to UK law (or a UK will).
Cheers,
Bev
 

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Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense. :)

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half.

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose
Thanks for the info xose.
I wasn't thinking about disinheriting my daughter by the way :) as I get on with her allright at the moment, and she's a teenager so we're doing pretty well!!:D
 

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The term in French is "usufruit" which I've seen translated as "usufruct" - though I don't think I've ever seen that word used in English. It basically means that ownership is split into the thing itself, and the benefits of the thing - meaning that while the kids may "own" the house (or whatever), the surviving parent gets the use of the property (or any income from renting it out).

Normally, inheritance law of the country in which the decedent was living at the time of their death takes precedence. However, for real property (land and buildings), it's the inheritance law of the country in which the property is located. So, the house in Spain is subject to Spanish inheritance law, while the house in the UK passes according to UK law (or a UK will).
Cheers,
Bev
Hmmmm... I took out a will many years ago in the UK. Basically, it was a very simple will, leaving any owned property and all cash assets to my wife...and in the event of her death, to be passed on to our children, divided equally. Somewhere down the line I lost the original, but I have a carbon copy. 2 years ago I took the copy to a notario. He read it carefully. I asked was this will valid in Spain or did I need to take out another one. His answer was an emphatic "no".
Absolutely no need as the copy was quite legal and would be legally binding in Spain.
 

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Hmmmm... I took out a will many years ago in the UK. Basically, it was a very simple will, leaving any owned property and all cash assets to my wife...and in the event of her death, to be passed on to our children, divided equally. Somewhere down the line I lost the original, but I have a carbon copy. 2 years ago I took the copy to a notario. He read it carefully. I asked was this will valid in Spain or did I need to take out another one. His answer was an emphatic "no".
Absolutely no need as the copy was quite legal and would be legally binding in Spain.
Hola Hombre,
Just to make sure that he gave you the right advice. In your position I would pose him a pointed question, and see if the answer remains the same.

So, I don't have a Spanish will. I only have the UK will leaving everything to my wife and then the children AFTER she dies.
Once my children are "adult", can my wife do as she pleases with what I have willed as purely HER house?

Can she do as she pleases before they are of age?

Would be interesting if he said yes to both (or any) of the above. It would certainly get me down to my notario tout de suite! So far as I am concerned, without the power of attourney from any surviving ADULT child, the above UK type scenario is not possible under Spanish inheritence law. Not possible at all whilst they are minors.

Xose
 

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Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham
Both English and Spanish solicitors have advised me that it does not if you are both UK citizens ..... the English will takes precedence, and thats why its important that you make one!
 

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Both English and Spanish solicitors have advised me that it does not if you are both UK citizens ..... the English will takes precedence, and thats why its important that you make one!
Exactly...both our children are adults and I am informed the English will takes precedence.
 

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Discussion Starter · #13 ·
Hola Hombre,
Just to make sure that he gave you the right advice. In your position I would pose him a pointed question, and see if the answer remains the same.

So, I don't have a Spanish will. I only have the UK will leaving everything to my wife and then the children AFTER she dies.
Once my children are "adult", can my wife do as she pleases with what I have willed as purely HER house?

Can she do as she pleases before they are of age?

Would be interesting if he said yes to both (or any) of the above. It would certainly get me down to my notario tout de suite! So far as I am concerned, without the power of attourney from any surviving ADULT child, the above UK type scenario is not possible under Spanish inheritence law. Not possible at all whilst they are minors.

Xose
Hi Xose
I think your are correct! My experience with spanish professionals is that they answer your question without considering any consequences or the matter 'as a whole'. They simply answer your specific question.
:focus: IMO
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.
SO - is the answer to those of us owning property in spain to create a spanish company and move the non-movable assets into the company? The family can be made directors of said company. On the death of either partner then the shares simply move to the surviving directors(eg partner and family). Costs for setting up and maintaining a company? Anybody have any idea?
Graham
 

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Inheritance/ wills

Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham

From Wikipedia
Usufruct is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. In many legal usufruct systems of property, such as the traditional ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.

In Spanish sufruto (xose had popped an extra "r" in :p so if you had looked it up in the dictionary you might not have found it for that reason)
 

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Hi Xose
I think your are correct! My experience with spanish professionals is that they answer your question without considering any consequences or the matter 'as a whole'. They simply answer your specific question.
:focus: IMO
I agree, they'll answer your question as well as they can, but you have to ask the question. For example the doctor will tell you "Take this 3 times a day", but if you don't ask won't tell you how long for, what the side effects may be, if you need a follow up appointment...
 

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Discussion Starter · #16 ·
From Wikipedia
Usufruct is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. In many legal usufruct systems of property, such as the traditional ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.

In Spanish sufruto (xose had popped an extra "r" in :p so if you had looked it up in the dictionary you might not have found it for that reason)
Usufruct is a term I had seen before but didn't know what it meant until I too looked it up in Wikipaedia. I didn't pick up the extra 'r'.
Many thanks for the info.
Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
Graham
 

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Usufruct is a term I had seen before but didn't know what it meant until I too looked it up in Wikipaedia.
Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
Graham

Same for me, one of those things you hear and know it's a legal term and that's about it, but you will find that your average Spaniard knows the term and they are also well versed in medical terms. They'll never say "I've got a sore throat" It always faranghitis, amigdalitis etc etc.
As for the creating a company, sorry, not my thing. I have about 20 pounds in a Nat West account and that's about it in the UK. Not much more here in Spain either unfortunately!! I was only interested in the Spanish side of things as my husband and I are thinking about making wills. :)
 

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From Wikipedia
Usufruct is the legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged. In many legal usufruct systems of property, such as the traditional ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.

In Spanish sufruto (xose had popped an extra "r" in :p so if you had looked it up in the dictionary you might not have found it for that reason)
Actually PW, I made a total pigs ear of it. In Spanish the term is Usufructo. Nothing to do with the surfruto I wrote. That's the problem when 4 different languages are flying around in your head. Faux Ami all over the place :):)

My bad.
 

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Actually PW, I made a total pigs ear of it. In Spanish the term is Usufructo. Nothing to do with the surfruto I wrote. That's the problem when 4 different languages are flying around in your head. Faux Ami all over the place :):)

My bad.

:D Well, I've only got 2.1 languages in my head (The .1 is French, that I used to speak quite well about a million years ago when I was student!!), and I manage to come out with all sorts of combinations - creative use of language I say! :) I think it's amazing that I've managed to learn the meaning of usufructo, and you've remembered the correct usage of the idiom "to make a pig's ear of something" :clap2: And it's only 11 o' clock!!!

Sorry everyone :focus:
 

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Usufruct is a term I had seen before but didn't know what it meant until I too looked it up in Wikipaedia. I didn't pick up the extra 'r'.
Many thanks for the info.
Any comments on the suggestion that creating a company and moving one's property into it in order to avoid inheritance problems?
Graham
The company setup thing for property is one I've seen advertised quite a bit around this type of site.

I'd just be very wary of the implications and responsibilities of directors. Assuming you live for many years to come, does one have normal company accounts, returns etc., etc. to fullfil? Does one have yearly corporation tax to pay on appreciating assetts? Does one have the capital gain tax to pay when the assett is sold, cost of sale minus cost of purchase, or does one de-value it over X years etc., etc., etc.

Oh and last but not least, when I say one, I mean the company. They are not one and the same and it is sometimes difficult to keep that in mind. The company and you are two different entities. Took me ages to get my head around that when I first started contracting under Ltd in the UK (another lifetime ago:))
When I stopped trading (went into PAYE as I got an offer I couldn't refuse) I was shocked that all the money in the company was NOT mine. What ended up saving me was that the company had a deposit account. As such, it was still generating income and so, "trading". The accountant I had was good and used this to get the cash out prior to cease trading status and then closure. But it was a close call. The company nearly went into dormant mode with all my dosh in it!!

Probably nothing to do with the type of setup mentioned above for foreign property handling but just goes to show how much one should be aware of before doing anything like this to avoid future surprises.

Xose
 
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