Leaving our house to my son

Information and questions about the Law in Spain and Andalucia.
Usinspain2578
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Leaving our house to my son

Postby Usinspain2578 » Mon Feb 15, 2021 12:20 pm

Hello

The house I own in Spain is worth €495000 in mine and my wifes names I am making a will out in the UK to leave my assets there to my Son.

We would want my son to also get the house in Spain, the house is up for sale but when it will be sold we have to wait and see.

We are fiscal residents in Spain

Thank you

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Wicksey
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Re: Leaving our house to my son

Postby Wicksey » Mon Feb 15, 2021 12:27 pm

Have you made a Spanish will? I would have thought you would have needed one to say who will inherit an asset here.

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Re: Leaving our house to my son

Postby costakid » Mon Feb 15, 2021 12:44 pm

I am sure if your residents you need a Spanish will. Only if you are UK residents can you mirror overseas assets as per uk will.

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Re: Leaving our house to my son

Postby katy » Mon Feb 15, 2021 12:50 pm

Why not consider setting up a trust fund whilst doing it. We were told best to have a Spanish will and a UK one but later changed to a trust fund.

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Re: Leaving our house to my son

Postby El Cid » Mon Feb 15, 2021 1:36 pm

It doesn't matter if you are residents or not, if you own assets in Spain you need a Spanish will as well as an English will for the UK assets.

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elusive
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Re: Leaving our house to my son

Postby elusive » Mon Feb 15, 2021 2:56 pm

Much easier to have a will but under spanish law your kids,not your spouse are first in line to get everything anyway. Could cause issues if its second marriages and theres other children to consider.

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Re: Leaving our house to my son

Postby El Cid » Mon Feb 15, 2021 3:21 pm

Can I clarify that. If you don't have a Spanish will, then Spanish succession laws apply which can be a problem in the future as Elusive pointed out. When you make your Spanish will, they add a clause which says that UK, not Spanish law will apply.

Your Spanish will specifically says that it only applies to your Spanish assets and you English will say that it only applies to English assets.

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Re: Leaving our house to my son

Postby elusive » Mon Feb 15, 2021 5:35 pm

Whats the advantage of having a uk will for uk assets and not just including them in a spanish will and stating you want everything processed under uk inheritance law. Ie the spouse rather than kids or possibly even parents getting everything.

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Re: Leaving our house to my son

Postby El Cid » Mon Feb 15, 2021 5:47 pm

Because if you don’t have a UK will then UK probate will be more complicated.

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Re: Leaving our house to my son

Postby Paddy Pumpkin » Mon Feb 15, 2021 6:20 pm

There are a couple of extra things you need to look out for.

Forced heirship, in Spain you are not free to leave your property to whoever you want. For example on a national level you cannot give this house to your son because it is joint property with your wife.The rules on forced heirship differ by region also. When the UK was still in the EU then you could get around this by declaring in your Spanish will that you want the will dealt with under UK inheritance laws (note this is not tax law just the inheritance rules). I am not sure this is still an option now that the UK has left the EU.

You don't say where in Spain the house is and the taxes are different by region and the can be quite draconian including some regions who tax inheritance between spouses. You should check out what the potential inheritance tax bill will be. It may be better to sell the house at a lower price for a quick sale, put the proceeds in a UK bank and then gift/will the cash to your son as then the asset (cash) will be in the UK and not subject to Spanish inheritance tax.

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Re: Leaving our house to my son

Postby El Cid » Mon Feb 15, 2021 7:12 pm

Leaving the EU does not affect the situation. The property is in Spain so EU rules apply. The new EU law about saying in your will that you want English law applies is still valid.

On the assumption the OP lives in Andalucia, 90% of forum Spanish residents do ( the clue is in the name of the forum) there is effectively no IHT for close (Group 1 and 2) relatives.

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Re: Leaving our house to my son

Postby elusive » Mon Feb 15, 2021 8:17 pm

Why more complicated? Because you arent a uk resident? I thought the uk end of the will would be the easy part as everything just goes to the spouse or N.O.K. hence why alot of average people dont bother with them.

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Re: Leaving our house to my son

Postby El Cid » Mon Feb 15, 2021 9:46 pm

It’s more complicated because you don’t have a UK will. Surely you can understand that.

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Re: Leaving our house to my son

Postby dxf » Mon Feb 15, 2021 10:57 pm

Hola,

Friends of mine used a suggestion from their gestor to transfer the ownership of their house to their son. To do it while living saved an amount of money.

You need proper professional advice to go down this route

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Re: Leaving our house to my son

Postby chrissiehope » Mon Feb 15, 2021 11:49 pm

My late husband & I jointly owned our casa (holiday home, non-resident. He wanted it to go to his daughters from a previous marriage, but for me to have use of it, after he died (& I still owned half). So, in Spain there is (& I assume still is) a usufruct (I think I have this right) which gives the surviving spouse half the property ownership & the other half equally between the offspring until the spouse dies & then it becomes wholly the property of the offspring. That's how it worked out anyway when my husband died, We both had english & Spanish wills.
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Re: Leaving our house to my son

Postby Paddy Pumpkin » Mon Feb 15, 2021 11:59 pm

El Cid wrote: Mon Feb 15, 2021 7:12 pm Leaving the EU does not affect the situation. The property is in Spain so EU rules apply. The new EU law about saying in your will that you want English law applies is still valid.

On the assumption the OP lives in Andalucia, 90% of forum Spanish residents do ( the clue is in the name of the forum) there is effectively no IHT for close (Group 1 and 2) relatives.

Sid
Forced heirship is still relevant and the OP needs to be aware of it because his current plan to leave the jointly owned house to his son is illegal in Spain.

What if the OP is like me and in the 10% who don't have any tax liability to Andalucia? At least he is aware of this. Additionally should the OP (and wife) gift the house, presuming it is in Andalucia (or the cash), to his son now and then survive 7 years he could save about 60k EUR in UK IHT. If the OP goes down this route they should get personalised advice as this saving depends on many variables.

Both of my points are something that the OP should be aware of, he is free to disregard them if not relevant, but it could be a very costly assumption for the OP if we assume that they are not relevant.

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Re: Leaving our house to my son

Postby dxf » Tue Feb 16, 2021 7:34 am

chrissiehope wrote: Mon Feb 15, 2021 11:49 pm My late husband & I jointly owned our casa (holiday home, non-resident. He wanted it to go to his daughters from a previous marriage, but for me to have use of it, after he died (& I still owned half). So, in Spain there is (& I assume still is) a usufruct (I think I have this right) which gives the surviving spouse half the property ownership & the other half equally between the offspring until the spouse dies & then it becomes wholly the property of the offspring. That's how it worked out anyway when my husband died, We both had english & Spanish wills.
Hola

I have an usufruct which gives me the right to live in my home for the rest of my days; I own no part of the house so when I die then there can be no death duties. This usufruct was started in 2002 when the inheritance tax laws were different; however, I am still happy to have got it and believe it will still save hassle and stress

Davexf

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Wicksey
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Re: Leaving our house to my son

Postby Wicksey » Tue Feb 16, 2021 10:57 am

Paddy Pumpkin wrote: Mon Feb 15, 2021 11:59 pm
El Cid wrote: Mon Feb 15, 2021 7:12 pm Leaving the EU does not affect the situation. The property is in Spain so EU rules apply. The new EU law about saying in your will that you want English law applies is still valid.

On the assumption the OP lives in Andalucia, 90% of forum Spanish residents do ( the clue is in the name of the forum) there is effectively no IHT for close (Group 1 and 2) relatives.

Sid
Forced heirship is still relevant and the OP needs to be aware of it because his current plan to leave the jointly owned house to his son is illegal in Spain.
Isn't the whole point of putting in your will you want it dealt with under British law (as we have done) in order to avoid it being dealt with under Spanish law ie being able to leave your assets how you wish? It doesn't affect us as we have no family to leave it to but we still put that in our Spanish will. We have a UK will for our UK assets.

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Re: Leaving our house to my son

Postby elusive » Tue Feb 16, 2021 2:12 pm

Agree wicksey. The whole point of saying i want the will done under english law is to avoid the spanish system.

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Re: Leaving our house to my son

Postby Paddy Pumpkin » Tue Feb 16, 2021 2:28 pm

Wicksey wrote: Tue Feb 16, 2021 10:57 am
Paddy Pumpkin wrote: Mon Feb 15, 2021 11:59 pm
El Cid wrote: Mon Feb 15, 2021 7:12 pm Leaving the EU does not affect the situation. The property is in Spain so EU rules apply. The new EU law about saying in your will that you want English law applies is still valid.

On the assumption the OP lives in Andalucia, 90% of forum Spanish residents do ( the clue is in the name of the forum) there is effectively no IHT for close (Group 1 and 2) relatives.

Sid
Forced heirship is still relevant and the OP needs to be aware of it because his current plan to leave the jointly owned house to his son is illegal in Spain.
Isn't the whole point of putting in your will you want it dealt with under British law (as we have done) in order to avoid it being dealt with under Spanish law ie being able to leave your assets how you wish? It doesn't affect us as we have no family to leave it to but we still put that in our Spanish will. We have a UK will for our UK assets.
Yes that is the exactly why I originally brought it up to the OP as something they should look at when writing their Spanish will.

If they don't make the declaration to be dealt with under the laws of inheritance of another country (UK or wherever else they are entitled to) then the current plan to leave the house directly to his son will be illegal under Spanish law.


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