Whether your reason is COVID-19, friction in the family or whether you just want to make sure your Spanish property goes to who you want it to go to after your death, timely inheritance and probate planning is a good idea.
If you own a home or bank account in Spain and do not already have a Spanish Will, then this is the first and possibly simplest way of arranging who is to receive your assets in Spain.
Where you and your spouse are concurrent or co-owners, each owning half of your Spanish real estate, a Will is also a suitable mechanism where you wish to protect the survivor’s right to continue enjoying the use and benefit of the property after your death for as long as they live or wish.
Unlike the USA and the UK, there is no right of survivorship under Spanish law, so joint property or bank accounts do not pass by survivorship to the surviving joint spouse. This means that heirs or surviving spouses will have to go through the Spanish inheritance process equivalent to Probate in the US or UK.
A Spanish Will
By making a separate Spanish will for your assets in Spain you can make sure that your wishes are carried out, moreover applying the substantive law that you are familiar with and trust, usually the law of the state where you live and come from.
We can help you draw up your Will in Spanish format in a form that will be recognizable and familiar to Spanish notaries, registrars and banks. This will expedite the probate process and make life as simple and inexpensive as possible for your surviving spouse and heirs.
There is no need for you to travel to Spain to make your Spanish Will; we will register this with the authorities in Spain, thus ensuring the Will’s recognition and implementation in compliance with Spanish law.
What is better: a lifetime gift or let property pass under a Will?
There is also another option. If you are finding travelling to Spain inconvenient or you think the Coronavirus is going to restrict travel in the future, you may be wondering about transferring your home in Spain to the family during your lifetime.
In practice, the choice between making a lifetime gift or a testamentary disposition under a Will is a question of cost, in other words, the respective tax payable on these operations.
Both gifts and inheritances of assets located in Spain are subject to tax by the recipient in Spain (Inheritance and Gift Tax – “IGT”). Although there are regional and other variations in IGT, the tax payable on gifts and inheritances is substantially the same (albeit that other taxes chargeable to the donor of a gift have also to be taken into account). At the same time, the cost and time needed to make a gift is significantly less than the inheritance/ probate process in Spain,
Before taking a decision, you should always take advice from a tax lawyer. However, your personal situation, such as a second marriage and co-ownership of real estate with a second husband/wife, or friction between your children/heirs, may make the option of transferring the Spanish property to the intended beneficiary during your lifetime a valid option.