Most of my legal work relates to the administration of Spanish estates where the deceased and the beneficiaries are British. Very often the estate is comprised by a property and a bank account. In those cases, the lawyer acting for the beneficiaries and executors needs to gather the necessary documentation to produce a Deed of Inheritance that will be eventually signed in the presence of a Notary Public in Spain. This is compulsory when the estate had a property as the Land Registry will not update its records and change the title unless is provided with a Deed of Inheritance.
At the same time, there are other estates where the only asset of the deceased is a Spanish bank account.
In the UK closing the account and transferring the funds to the executors and beneficiaries is quite straightforward if the balance in the account is reasonable i.e below £20,000. In those cases, there is no need to produce a Grant of Probate or Administration. Unfortunately, the situation is as not as simple in Spain.
It does not matter how much is left in the account, whether there is 1000 or 100,000 Euro. In Spain the process is the same. The Spanish bank will want to see the following:
The death certificate
A power of attorney from the beneficiaries and executors in favour of the person who will close the account in Spain
The certificate from the Spanish Wills Registry
The beneficiaries Spanish Tax numbers
The Inheritance tax forms duly sealed by the tax office
And, in certain circumstances, specially if the Will was a UK one, a certificate of law
The above are the documents that most banks will request but this should not be taken as closed list as each bank acts differently. However, the key thing is that the cost of gathering the above documentation, specially if the lawyer involved is not familiar with cross-border estates between UK and Spain, can sometimes prove higher than the value of the account. In other circumstances, the value of the account will be much higher than the costs of closing it and therefore it will be worth proceeding.
As usual, a Spanish lawyer versed in this type of matters should be able to guide the executors and beneficiaries as to the best route and the costs associated.
Ah, Barcelona. Lovely city. Famous for its gastronomy, football, fashion and its Architecture, specially buildings designed by Antoni Gaudi such as the Sagrada Familia, Casa Mila or Parc Güell. A very cosmopolitan city with inhabitants of all countries and cultures. Also a great place for foreign remote workers and professionals to live and work. A vibrant city with a very fast pace rental market, probably driven by foreign and national demand, and a shortage of properties to let. This has caused some sort of a rental bubble in the city and privileged surrounding areas such as the seaside (Gava-mar, castelledefels, Sitges) or more towards the mountains such as Sant Cugat and Valldoreix. It is estimated that rental properties are at their highest peak. Huge demand has caused an increase on rent of 20% to 30% in the last 12 to 24 months. An average 3 bedroom property in the city of Barcelona is let for around 1,400-1,500 Euro. This is very good news for those who own or want to buy property in Barcelona with the aim of letting them on a long-term basis.
It is clearly a Landlord´s market and tenants very often see properties disappear from the rental market in 48 hours. This puts landlords in an even stronger position and allows them to ask for rents that would be unthinkable 2-3 years ago. Excellent news for landlords and not so good for prospective tenants as they are now facing higher rents but we should always look at the bright side. This is a sign that Barcelona, in spite of the last political events and the absence of a local Government, is thriving when it comes to the property market and rentals are their highest performer at the moment. And if a city thrives, then their inhabitants, businesses and commerce should benefit as well.
The above only refers to long-term rentals. If we bear in mind that there is another market for holiday rentals, Airbnb and et al, then we can clearly see that Barcelona has a lot to offer to those foreign investors wanting to either get a property in a vibrant and sunny city like Barcelona or invest in a property that can be let with a good return.
Some caution needs to be placed on holiday rentals as not all properties count with a touristic licence. The current Mayor is targeting holiday rentals with no touristic licence and the penalties and fines applied can be very high. In light of this, any person wanting to buy a property in Barcelona and exploit it as a touristic apartament should make sure that the property counts with the necessary licences. Alternatively, a long term rental would be a good solution as it still brings a good return in the current rental market.
And for those wanting to rent a property, just two lines of advice:
Reserve the property if you saw it and you like it (otherwise it may disappear from the market a few hours later)
and get some independent legal advice if unsure as to the terms of the tenancy agreement.
I am writing this post from Barcelona, at 6:30 pm. The sun is still shinning and the Barcelonians are getting ready for the weekend. It is probably time to log off and have a glass of cava or an estrella beer outside!
This is a question very frequently asked by our clients. The question usually comes with a frown on the face. Clients understand the concept of Inheritance tax: someone dies, and the Tax office applies a tax because the beneficiary gets “presumably” wealthier. So far, so good but what is the plusvalía tax then? Clearly, the beneficiary has already paid a tax on death so why should he/she pay another tax when a person dies?
That´s a very good question and the answer is simple. There is another tax because this allows local councils to get more revenue. Now that we have faced the honest truth, we need to focus on understanding what this tax is and whether it could be avoided.
In order to understand this tax we need first to bear in mind that each property has a rateable value affixed by the local councils (valor catastral). This value is the base on which a multiplying coeficient will be applied to ascertain the minimum tax value of a property.
Ok, wait a minute. We are now talking about too many values. What is the rateable value and what is the minimum tax value? The former is the value recorded in the local council´s registry. It does not have anything to do with market values. The second one is the minimum value that the Tax office will accept in a property transaction. Buy or inherit a property for less than that tax value and you will most certainly have the Spanish Tax man knocking on your door asking for further tax on your property transaction.
Now that we have a slightly good idea on the two types of values, we can explain that the plusvalía tax is a tax levied by the local council every time that a property is transferred, whether this is by death or a sale. In this case we are talking about a death and therefore the plusvalía tax will have to be paid by the beneficiary of the property or the estate. Regardless on whether the property is worth more or less than when the deceased acquired it, the local council will look at the rateable value on the date in which the deceased died and will also bear in mind the date in which the property was initially acquired by the deceased. Using some values and applying some multiplying coeficients the town Hall will the charge a tax, which is the plusvalía tax. The longer the deceased owned the property, the higher the tax (up to a maximum of 20 years, where the tax coeficients reach a ceiling and do not go any higher). This tax should be paid within 6 months of the death of a person and if it is not paid within that period of time, then penalties and interest will apply.
Can the plusvalía tax be avoided? Well, there is some discrepancy here. The general approach is that the plusvalía tax should always be paid and then, in those cases where the market value of the property has gone down then a refund can be requested but this will only happen in sale and purchase transactions, specially for properties that were acquired in the peak of the Spanish property market and have been sold recently for a loss. When it comes to the inheritance of a person, there is little that can be done to avoid it and the sooner is paid the better.
Your lawyer or the Notary Public preparing the deeds should be able to give you a pre-calculation of the potential plusvalía tax when he sends you his quote and estimate of costs. And once received, there is no other option than to pay it and as they say in the UK “bite the bullet”!
Picture of Manchester where Gunnercooke LLP has one of its offices (together with London and Leeds).
An extract from LegalWeek
Allen & Overy (A&O), Kirkland & Ellis, CMS and Fieldfisher are among eight firms set to battle it out for Law Firm of the Year at the British Legal Awards next month.
The quartet will go head to head with Clyde & Co, Latham & Watkins, Gateley and Osborne Clarke for the coveted award, with the winner to be announced at a ceremony hosted by Legal Week on Thursday 30 November.
A host of law firms and in-house legal departments will compete across team and individual categories including M&A Team of the Year, General Counsel of the Year, London Office of the Year and UK Law Firm of the Year, with the event to be held in Finsbury Square in the heart of the City.
Slaughter and May and Skadden Arps Slate Meagher & Flom will run against a strong line-up of firms including Linklaters and Herbert Smith Freehills for M&A Team of the Year (large deal), while A&O, Clifford Chance (CC) and Sullivan & Cromwell are among those chasing the banking and finance prize.
On the disputes front, Clyde & Co, Freshfields Bruckhaus Deringer and Signature Litigation are among those in contention for Litigation and Dispute Resolution Team of the Year
Meanwhile, the London Office of the Year award will see the likes of White & Case, Morrison & Foerster and Cooley compete with names including Ireland’s Mason Hayes & Curran and Portugal’s Gomez-Acebo & Pombo.
Other private practice prizes will recognise teams including property, restructuring, and private equity, as well as rewarding firms’ efforts in areas such as technology and diversity.
The in-house legal community is also well represented at the awards, with a number of new prizes open to legal teams within corporates. Virgin Media, Avaya, Nokia and Trainline are all in contention for Legal Department of the Year (TMT), while Barclays, TSB and LV are among those running for the equivalent financial services award.
Winners will be selected by an independent judging panel later this month. The panel includes senior business lawyers from major banks and corporates, as well as former private practice leaders.
Spain is still recovering from the brutal economic recession that has affected its economy for the last 10 years. One of the main consequences of the recession was the collapse of the property market where properties went down in value consistently, reaching lower values that left many property owners in negative equity as their properties were worth less than their mortgages.
In certain areas of Spain, like the coast and seaside resorts, the value of properties went down 30% to 40%. These properties are now being purchased by savvy foreign purchasers who have identified the chance to buy a property in a sunny place for very affordable prices. What many purchasers do not know is that we are facing some cases where the property is purchased below its tax value. As this may sound gibberish to those who are not familiar with Spanish law, let me explain what this means in layman terms and with an example.
Imagine that Joe Bloggs wants to buy a property in Fuengirola and the property is for sale for 100.000 Euro. Joe then makes an offer of 90.000 Euro and the seller, another British, let´s call him John Smith, accepts the offer because he wants to move back to the UK to be closer to his parents who are getting old and need some care. Joe Bloggs is delighted to have found a bargain and decides to buy the property for 90.000 Euro. However, Joe may not know that properties in Spain have a minimum tax value. This is the minimum value assigned by the Tax office to each property and the minimum value which the Tax expects the property to be sold. Joe did not instruct a lawyer to advise him in the purchase and decided to buy with the help of an estate agent. The latter did not check the tax value of the property and did not advise Joe that, actually, the property had a minimum value of 125.000 Euro.
The transfer tax or stamp duty in Fuengirola, Andalucia, for a property of that value is 8%. Joe, after completion, pays 8% of the purchase price (7,200 Euro) to the Tax Man in Spain and then forgets about this matter.
6 months letter he receives a letter from the Tax Office saying that he has bought under value and that the tax paid should have been 10,000 Euro (8% on 125,000 Euro). The letter states that Joe needs to pay the shortfall of 2,800 Euro plus another 25% penalty charge. Joe can choose between a) paying the shortfall and the fine or b) appealing the decision. However, option b will probably involve legal fees in the region of 1000 Euro and a valuation fee of around 500 Euro. Furthermore, there is no guarantee that Joe will succeed with the appeal. In a case like this one, Joe might be better paying the shortfall and the fine.
All the above could have been avoided if Joe, his lawyer or his estate agent had checked the minimum tax value of the property before committing to purchase the property. It could well be the case that Joe, after getting this information, would have still bought the property as it was a bargain but this fact is an important fact that Joe and any potential purchaser should know and consider before buying property in Spain. The minimum tax value should be considered to avoid surprises. Unfortunately, the only way someone like Joe would have learnt about this would have been if he had used a diligent independent lawyer. Food for thought.
I have connections with Spain. Can I apply for a Spanish Passport so I can keep my European status in the event of a potential hard-brexit?
Now that Brexit has been implemented, some British citizens with connections with other European countries are considering applying for dual citizenship (nationality) in those countries to which they have a close connection (whether is by blood or marriage), so they can keep a European passport.
We will briefly explain in this article how British citizens with connections with Spain can apply for a Spanish passport. You will note that not everyone with links in Spain qualifies automatically for a Spanish passport. However, there are numerous cases where a Spanish passport can be obtained.
See below a summary of the most common questions that our clients have been asking to us after Brexit in this regard:
I have a property in Spain, and I spend my holidays there with my family. Can I apply for Spanish Passport?
NO. Owning property and spending holidays in Spain, even if you have been doing so for a long time, will not allow you to apply for Spanish citizenship.
My partner is Spanish. Can I apply for a Spanish Passport?
NO/YES. Being married to a Spanish citizen, even if you have children together, does not entitle you to become a Spanish national. However, if you are resident in Spain, have been living in Spain, legally and continually, for the last twelve months, and you are married to a Spanish citizen, then you are entitled to apply for Spanish citizenship.
I am currently living in Spain. I am retired and moved to Spain some years ago.
NO/YES. The residence is one way to be able to apply for Spanish passport. However, there is a limitation period of 10 years. If you have been living in Spain, legally and continually, for the last ten years, then you are entitled to apply for Spanish citizenship.
There are some exceptions that may allow you to apply before the end of the 10 years period. A Spanish lawyer, or ourselves if you do not have one, should be able to advise whether some of the exceptions to the rule will apply to your case.
My parents are/were Spanish but I am British and I donâ€™t have Spanish Passport. Can I apply for it?
YES. If your father or mother are/were Spanish but you do not have a Spanish passport because you were born in the UK and they did not register your birth in Spain, you can still apply for a Spanish passport.
You will be considered a Spanish national â€œby originâ€ as you are already considered Spanish by Spain. However, there are some formalities that you should follow to obtain a Spanish passport.
First of all, you will need to register your birth at the Spanish Civil Registry and once you have your Spanish Birth certificate, you will be able to apply for Spanish passport. Once again, a Spanish lawyer should be able to help with the paperwork if you prefer to get some assistance.
Can I be I sure that I will not lose my British nationality?
Although the United Kingdom and Spain have not signed any dual citizenship agreement, at present there is no reason to think that you cannot hold both passports.
At present, current laws in the UK allow British citizens to be British and to have a passport of certain countries. Dual citizenship is therefore allowed in the UK in certain cases, such as with Spain. You can therefore apply for a Spanish passport and keep your British citizenship. Â
Spanish law only accepts dual citizenship or nationality with some countries (the UK is not one of them). However, as the UK accepts dual citizenship, to avoid losing the Spanish citizenship, a formal statement needs to be made if you want to keep your Spanish citizenship, within three years from having obtained the Spanish citizenship. With that statement before the Spanish Authorities, you will not lose your Spanish citizenship.
How should I proceed if I am entitled to apply for Spanish citizenship?
You can see the legal requirements to apply for Spanish nationality on the Spanish Government website (www.mjusticia.gob.es) or contact the Spanish Embassy or Consulates in the UK (www.exteriores.gob.es). Doing the process yourself is free so you only will need to pay some taxes and stamp duty.
You can also contact a Spanish lawyer to assist you with the procedure. The Spanish desk of Gunnercooke www.gunnercooke.com provides a tailored service for this type of matters.
It is quite likely that you will have one or two clients with assets in Spain and when it is time to deal with their estates, the probate in Spain could be a source of uncertainty or a source of conflict if there is not a Spanish Will in place. We can help you and your clients to avoid delays when dealing with cross-border estates between UK- Spain.
As you are aware, the European Regulation on Succession (EU) No 650/2012 started to create effects on 17th August 2015 (its rules are applicable to the succession of persons who die on or after 17 August 2015). The EU Regulation was ratified by Spain but not by the United Kingdom. However, English nationals can still take advantage of one of its important points which is to opt for their national law in a Will.
One of the main changes that the EU Regulation introduced is the fact that the connecting factor on applicable law has changed from Nationality to Habitual Residence. (Please note that the EU Regulation does not contemplate the concept of “domicile” that on the other hand, does not exist under Spanish law). This will help us to solve disputes on applicable law in cross border estates UK- Spain.
We should distinguee between British citizens living in Spain and British citizens living in the UK with assets in Spain.
In both circumstances, we would suggest drafting a Spanish Will along with the English Will. It will help your clients to avoid intestate successions in Spain which would turn the probate process in Spain time-consuming and complicated.
At that point, it is important that both you, as their advisor on the English side, and the Spanish lawyer, work collaboratively to ensure that the Spanish Will applies only to the Spanish assets by choosing the national law, and ensuring that none of the wills revokes each other.
A Spanish Will can be signed either in Spain in front of a Spanish Notary or in the UK, complying with certain formalities of a UK will and certain formalities of a Spanish will, which if drafted by the right professional would be easier for your clients.
A Notarial Will Signed in Spain, requires to be signed before a Notary Public, no witnesses are required and should preferably be drafted in two languages unless a translator is present. Finally, the Will should be registered with the Wills Registry, as in Spain, when a person dies we can ask for a last Will certificate that will show us when the last will was signed, before which Notary and in which date.
If your client opts to sign a Spanish Will in the UK, it should preferably be drafted in two languages, with one or two witnesses (depending if it is signed in England or Wales or in Scotland) and it should be preferably signed before a Public Notary and legalized with the apostille of The Hague Convention. Finally, the Will should be registered with the Wills Registry in Spain.
Does your client really need a Will specific for Spain? It is not compulsory but advisable. As mentioned above, it helps to avoid potential conflicts of law, allows to focus on the tax side of each jurisdiction, speeds the administration process, and last but not least avoids interpretation problems.
In terms of IHT in Spain (which is payable by the beneficiary, and not the estate), it should be noted that in Spain there are different tax laws applying depending on the location of the assets (Autonomous Regions).
If you have clients with assets in Spain we would strongly recommend them contacting a Spanish lawyer, with some knowledge of the laws in the UK, to advise on the different types of wills, tax consequences and practicalities of each will, specially now in the verge of an exit from the European Union.
I NEED TO APPLY FOR A SPANISH NATIONALITY FOR MY CHILD WHO LIVES IN PAKISTAN. HOW CAN I DO IT?
At Gunnercooke LLP we have seen a noticeable amount of enquiries from Spanish-Pakistani families where one of the members of the family is Spanish and the other one is usually from Pakistan (or another country). In most of those cases, the family lives in the UK and has a son or a daughter abroad (either in Spain or in Pakistan) waiting to obtain a Spanish nationality in order to reunite with the family.
The normal practice is for the parents of the child to apply for the minor´s Spanish nationality at the Police station in Spain or at the relevant Consulate abroad (for instance Islamabad). However, very often the minor lives abroad (Spain or Pakistan) and the parents cannot travel abroad because they are working in the UK. In those cases, one of the parents or a third person can apply for the minor´s nationality by way of a notarial power of attorney.
See below the possible scenarios and their solution:
A.- Parents and minor living in Spain.- They can apply for the minor´s Spanish nationality at the local Police Station.
B.- Parents and minor living in Pakistan.- They can apply for the minor´s Spanish nationality at the Spanish Consulate in Islamabad.
C.- Parents and minor living in the UK.- They can apply for the minor´s Spanish nationality at the Spanish Consulates in London and Edinburgh.
D.- Parents living in the UK and the minor living in Spain with relatives.- The parents can grant power of attorney to each other to apply for the minor´s nationality in Spain or alternatively, grant power of attorney to a third person to enable him/her to apply for the minor´s nationality in Spain.
E.- Parents living in the UK and the minor living in Pakistan with relatives.- The parents can grant power of attorney to each other to apply for the minor´s nationality in Pakistan or alternatively, grant power of attorney to a third person to enable him/her to apply for the minor´s nationality in Pakistan.
It is therefore possible to find a solution in scenarios D and E. The Spanish desk at Gunnercooke LLP has experience in drafting the necessary powers of attorney to enable one of the parents or a third person to apply for the minor´s nationality at the country where the minors is residing.
Obviously, our expertise is restricted to drafting the power of attorney. We do not advise on Spanish nationality applications but we can certainly help with the power of attorney and save the families the hassle of having to fly to the relevant country when their normal life is taking place in the UK.
Pursuant to the European Court of Justice´s decision of the 3/9/2014 they could be entitled to ask for a refund
The Spanish inheritance and gift tax is a national tax but the Spanish Government transferred it to the regional bodies (autonomous communities), who have autonomy to legislate and collect the tax. The autonomous communities have legislated a number of tax benefits that are applicable to taxpayers, resident in their regions.
The key point is that most of the Autonomous Regions have introduced tax benefits to their residents, i.e. in the Balearic Islands (Mallorca, Ibiza or Menorca) the inheritance transfers between immediate family members, if they are residents, are taxed with a maximum of 1% in most estates.
The problem is when we are talking about non-Spanish residents because the tax is not transferred to the regional bodies and the state rules apply without the said benefits. This implied that in the past a person who was not resident in Spain was paying a higher Inheritance tax than a person who was resident in that country. This was clearly a discrimination within the EU and many groups of affected individuals and professionals complained before the EU Courts.
In 2007 the European Commission sent a warning to Spain about a potential incompatibility between the Spanish inheritance and gift tax rules with Articles 21 and 63 of the TFEU and Articles 28 and 40 of the EEA. The Commission formally requested Spain on the 5th May 2010 and 17th February 2011 to take action to ensure compliance with EU rules. As Spain failed to take action, the Commission decided to take Spain to the CJEU and the European Court of Justice declared in its Decision dated 3th of September 2014 that this legislation breached the free movement of capital and it was contrary to the European laws. Spain was therefore forced to amend its legislation in that way.
Knowing that at present the inheritance or gifts between non-Spanish residents have the same benefits that residents have, the key questions are:
What about the taxes already paid by non-Spanish residents before that European Decision? Can we claim a refund for the excessive taxes?
The effects of the CJEU Decision 3/9/14 are not temporary limited and therefore if your clients have paid the inheritance or gift tax in Spain as a non-resident they should be able to claim for the reimbursement of the excess paid.
We would recommend contacting a Spanish Lawyer to review the Inheritance or Gift taxes already paid by your clients in Spain before 2014, and more importantly, if your clients are going to pay taxes in the following months, a Spanish Lawyer will also help them to decide the best way to minimise taxes, without the need to appeal for a refund.
On the other hand, we would also recommend your clients when buying in Spain, to consider the different tax rates and take into account the different regions and their tax rule, before deciding where to buy. We all know that laws can change, but why do not take this into account if it can help clients to save some money?
Following our previous article about mortgages in Spain.
The CJEU resolution (21th of December 2016) allows consumers to claim their money back retrospectively from Spanish Banks
As we explained in our previous article, The Court of Justice of the European Union (CJEU) was recently asked to decide about an important case for Spanish consumers as well as for Spanish Banks. The final decision has now been issued and this is good news for those individuals who got a Spanish mortgage but not for the banks.
Some of you will recall that some Spanish mortgages signed in the last 15 years contained a clause that Spanish Courts recently declared null and void because of the “lack of transparency” and “the failure to inform customers adequately” when they signed the mortgage deed. These clauses are known as a “cláusula suelo” which means that they are subject to a minimum monthly payment even if the interest rate, which usually has a variable rate linked to the Euribor, is negative.
If you bought a Property in Spain during the property bubble (2000 to 2008) you were probably paying the appropriate interest. However, the interest rates were quite low after the recession and those who had a “clausula suelo” on their mortgages have been paying an unfair and excessive interest on their mortgages which they can probably claim back.
The consumer’s action group (Adicae) started in 2013, on behalf of 15.000 mortgage holders, a claim against banks claiming for the nullity of the “cláusulas suelo”, after these had been declared “abusives” by the Spanish Supreme Court but with a retrospectivity to May 2013. This was clearly unfair. If a clause in a mortgage was considered abusive then the consumer’s right to claim should not be capped to May 2013. It should be retrospective to the date in which the mortgage deed was signed.
The said action group went to Luxembourg asking for the backdating to the date that the mortgage was signed and the CJEU has today decided that Spanish Banks have the obligation to refund unlawful interest from the very beginning: backdated to the date the mortgage was signed (instead of May 2013).
This means that Spanish banks have to pay consumers around €4.000.000. Goldman Sachs says that BBVA will be the Spanish Bank with a higher debt in front of consumers with €1.815.000.000; CaixaBank (La Caixa) with €750.000.000; following them: Banco Popular and Bankia with €160.000.000. These are the main banks but there are around 40 more banks involved.
Obviously, there are some exceptions depending on the mortgage holder’s profiles or depending on the specific circumstances of each case, but what is clear is that if you or your clients signed a mortgage in Spain during the property bubble years you or them could have the right to claim some money back.
In the following months Spanish Banks will probably try to sign transactional agreements with consumers. We strongly recommend to contact a Spanish Lawyer for advice to 1) analyse your mortgage in detail and inform you if contains a “cláusula suelo” and 2) see if you have the right to ask for a refund when that Decision takes place and last but not least 3) to deal with your Bank to ask for the refund or to negotiate with it.