Inheritance Tax Allowance in Andalucia

by LegalTaxWills & Inheritance

As of January 1st 2018, significant changes to the inheritance tax allowance in Andalucia, came into effect. These changes affect both expats who reside in the region, and non-residents who own assets such as holiday homes here.

The generous move by the regional Government of Andalucia raises the inheritance tax allowance to 1 million euros, where the heirs receiving the assets of a deceased direct family member, are classified as falling into Kinships Groups I and II, i.e. spouses, children, grandchildren and parents.  For this group of beneficiaries, there will be no inheritance tax (Impuesto sobre Sucesiones y Donaciones), when the sum of the assets received does not exceed this new 1 million threshold.

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Inheritance Law

by FinancialLegalWills & Inheritance

Of all the issues that we provide information about on this site, inheritance law in Spain, is one of the most complex and we strongly advise anyone concerned about their affairs relating to this area to seek professional advice.

In the European Union alone, every member state has different laws in relation to death, inheritance and inheritance tax. They are usually in constant change and are complex. To have to encounter and work with them at the moment of loss of a family member or friend is extremely stressful and you may get lost in a quagmire if you try to do it on your own.

Similarly in making a Will for your self, if you have assets in Spain as well as your country of your nationality, matters can get very complicated.

Some basic information –

Before 2012, inheritance law in Spain stipulated that, in the case of a foreigner deceased, the law to regulate her or his inheritance would be the law of their nationality.

So, in theory, the position was relatively simple: UK inheritance law was used to regulate the inheritance from UK nationals who die owning property in Spain. In the same way, Swiss law is called to regulate the inheritance from a Swiss national who dies owning property in Spain etc.

However there were contradictions in this system, which created confusion and conflicts. For example, UK inheritance law provides that the disposal of immovable assets (land and buildings, household and personal goods) abroad is governed by the law of the country where the property is situated and the disposal in inheritance of movable assets (bank accounts, life insurances, cars, boats/yachts, shares, bonds and other investments), is governed by the law from country of the last domicile.

French law confirms the inheritance law of the country where the deceased had the last domicile or residence. Similarly, Denmark Belgium, Switzerland, Finland, Germany, Sweden, Norway.

Why is it important to identify which inheritance law is applied to the estate?

Because there are critical differences between the Spanish and laws from other countries regarding wills and inheritance. The most important difference is that the Spanish have the figure of the “Compulsory” or “Obligatory Heirs” (Herederos Forzosos), which means that the testator cannot dispose from the full inheritance freely, and in whatever circumstances, he must leave the 66% of his inheritance for determinate persons called Obligatory Heirs (mainly descendants and spouses).

This system of “Obligatory Heirs” is common in countries like France, Belgium, Switzerland, Germany, Norway, Denmark, Sweden, Iceland, Norway, and Russia, in which the testator has the obligation to leave a percentage of their assets to determinate inheritors (usually surviving spouses and children). But, this system is different in the UK and USA.

In this way, for example, UK Inheritance law allows the free disposal of assets, transferring with total freedom the inheritance at the entire wish of the person.  The testator has total freedom to leave whatever he/she wishes, to whomever he/she wishes.

With this system, it could happen that a UK citizen, with two sons owning a property in Spain, can make a Spanish Will leaving their property in Spain to their surviving spouse, and that this last Will cannot be executed because, if Spanish laws are applied, then 50% of that property should be transferred to the spouse, for the other 50%:

  • One-third is divided between surviving children in equal shares.
  • One-third is reserved for surviving children but can be distributed equally or unequally according to instructions in a will. (The surviving spouse retains a ‘life interest’ (usufruct) in this part of the estate and the children do not inherit until the spouse dies.
  • One-third can be disposed of freely in a will.

Current legislation effective since August 2015 offers 2 options:

Option 1: You decide the law which will govern your inheritance.

So, if you are French, British, German, Norwegian, etc., you can decide on your Will or Probate, which the law you want to be applied on your passing.

Option 2: Inheritance by country of permanent residence.

If you have not stipulated in your Will, anything in relation to the law that you wished to regulate your inheritance, then, Option 2 will be applied and defined as country in which you had you residence during the last 5 years.

In cases in which you have been living in different places, and/or the permanent residence is not clear, then, the law will be the one from the country in which you had the strongest connection during all your life – open to subjective interpretation of course.

[creativ_alertbox icon=”” colour=”blue” custom_colour=””]Need to speak to a professional about Inheritance Tax in Spain? Call us to arrange a free consultation with a Financial and Tax Specialist. (+34) 951 77 55 44 / (+44) 033 000 10 777[/creativ_alertbox]

Recent Change to Inheritance Tax in Andalucia

From the beginning of 2018 the threshold for Inheritance Tax in Andalucia has been set at 1m euros. This is a massive increase on the previous limit, and brings Andalucia in line with the other autonomous regions of Spain. This significant change, opens up estate planning opportunities for individuals who have up until now deliberately kept limited assets in Spain as part of their Inheritance Tax planning strategy.

Read more about this change in our article, Inheritance Tax Threshold Increase in Andalucia

Spanish Mortgage Clausula Suelo Claim

by BanksMortgages

The Real Decreto – ley 1/2017, de 20 de enero, implemented measures to help consumers to reclaim money overpaid due to a ‘clausula suelo‘, (floor clause) in their mortgages (hipotecas) was approved on 20/01/2017.  This law dictates that banks must:

a) Allow their customers to reclaim their money without going to court, and inform their customers how to do so.

b) On receipt of a claim from a customer, make an offer to pay back money over paid plus interest.

c) If the customer accepts the offer, pay the amount offered back to the customer.

The maximum period for the consumer and the entity to reach an agreement is three months from the submission of the claim, and it will be understood that the out of court procedure has been concluded without agreement, allowing the customer to try and claim the money back via the courts, if either the:

  • bank rejects the clients request.
  • term of three months passes without any communication from the bank.
  • customer does not agree with the calculation of the amount to be returned by the bank and rejects the offer.
  • bank hasn’t made an offer within 3 months of the reclamation.

Most banks have already removed the ‘clausula suelo’ from their mortgages, so in most cases claims submitted will simply be for a refund of over-payments. For other banks that have not yet removed the clause, the process will be the same, however the claim will include a request to have the clause removed, as well as claim for a refund of over-payments.

Whichever bank you are with, the starting point of any possible ‘clausula suelo’ claim, is knowing whether or not your mortgage contract has this clause hidden in it. Santander, BBVA, ING, Cajamar, Caja Sur, Bank Inter, EVO, ABANCA, and Banco Popular, have all done away with the clause in their mortgages, so if you are with any of these banks, you should already have been notified about it, and following this new legislation, in time, everyone whose mortgage is affected, should also hear from their bank.

You don’t need to wait to hear from your bank.  There are plenty of lawyers offering to take up ‘clausula suelo’ claims, many on a no win no fee basis, because they know that they’ll win. This might seem attractive to begin with, however their success fee will typically be a hefty percentage, often half or more of any refund that they obtain from the bank.

We can help you save on unnecessary legal costs and expenses, first by providing a free assessment of your case, and then if we determine that you have a valid ‘clausula suelo’ claim, we offer a low cost assistance service to prepare, present and manage your ‘clausula suelo’ claim.

If you would like us to look into your ‘clausula suelo’ claim, click below to begin you enquiry.

Spanish Mortgage Clausula Suelo Claim

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