I am an Executor on a Spanish estate. Do I still need an N.I.E.?

The answer is simple: Yes.

Any person appearing in a Will that is going to be used for the administration of a Spanish estate, whether this is an English or a Spanish Will, requires a N.I.E. number. Obviously, this applies to those who inherit the asset but also to those who are not beneficiaries under the Will but have been appointed as Executors of the estate. In the event of several executors there is no need to get N.I.E. for all of them unless they have been appointed in a joint basis whereby all their signatures are required for any document with legal implications.

The above means that if Joe Bloggs died with no Spanish Will but he had an English Will that covered all his assets around the world and in that Will he appointed his brother and his trusted solicitor as Executors, both of them will need a N.I.E number and both will have to fly to Spain to attend the signing of the deed of inheritance at the Notary’s office. If this is not convenient, they can give power of attorney to someone based in Spain (ideally a lawyer or someone they trust) to sign the deeds on their behalf.

With regards to the N.I.E. this can be obtained in different ways:

– In person at the local police station in Spain

– In person at one of the Consular offices or delegations of Spain in the UK ( Aberdeen, Edinburgh, Leeds, Liverpool, London or Manchester)

– By way of granting power of attorney to someone based in Spain

For those who are not aware, there is no need to appoint an Executor in a Spanish Will as the heir/beneficiary has the same powers as a UK Executor. This is a mistake that many people make when signing their Spanish Wills. They appoint Executors when these are not necessary. Having said that, there is no harm in appointing Executors on a Spanish Will or in an English Will that is going to be used in Spain. It is just not as necessary and important as in the UK. In the end is up to the Testator or Testatrix to decide.

 

 

Honorary Consulate of Spain in Manchester

Picture with Patricia Roldan

CONSULADO HONORARIO DE ESPAÑA EN MANCHESTER

Antonio Guillen Hederich is the Honorary Consul for Spain in Manchester since June 2013.

An Honorary Consul is a person who voluntarily provides help assuming the functions that the General Consulate delegates on him. In the case of Antonio, his functions depend on the General Consulate of Spain in Edinburgh.

In the UK there are two General Consulates, one in Edinburgh and one in London.

Antonio’s area of jurisdiction is North Yorkshire, West Yorkshire and Greater Manchester and his main tasks are to help with the first passports and passports renewals of Spanish children in the mentioned area that are less than 12 years old. For that, he gives faith that he has seen the minor and the parents stamping and signing the corresponding forms and he checks that the documentation is ready to be sent in a special delivery to the Consulate in Edinburgh that will process the passports.

Antonio also can assist in certain circumstances with the NIE applications (Número de Identifidad Extranjero) for those British individuals that need a tax identification number for any official transaction in Spain.

The Honorary Consulate is located in the building of gunnercooke LLP law firm in Manchester.

As well as the Honorary Consul, Antonio is a dual qualified Spanish lawyer and English solicitor working for law firm gunnercooke LLP. Together with his usual Notary Public, Antonio can prepare powers of attorney and wills for Spain as well as advise on Anglo-Spanish matters.

For further information, please contact Antonio Guillen on 07872 808 598.

Patricia Roldan

Picture: Antonio Guillen and Patricia Roldan in a recent consular event.

Returning the keys back to the bank

morguefile com1 (2)A REAL CASE OF A SUCCESFUL DACION EN PAGO

This is a real case that we saw in the office some months ago. For obvious reasons, no names will be mentioned. The important thing is what happened and how the matter was resolved. Let me explain what happened.

 

In year 2006 two friends bought a property in Spain in the peak of the market for the amount of 200.000 €. In that year, the housing prices were high due to the excessive demand and banks granted mortgages like bakers bake muffins: one after the other.

Spanish banks were happy to lend monies because property prices were continuously rising like there was no tomorrow. These two friends got a mortgage for 180.000 € and therefore only had to put 20,000 € from their own money plus another 20,000 for taxes and fees. Total investment into the property was 40,000 € and the rest was brought by the bank.

Not much later the real estate bubble bursted in Spain. Consequently, the housing market declined, housing demand plummeted drastically, the value of the properties decreased and people were not able to pay their mortgages. Banks repossessed the houses and they sold them out in auction; therefore, there were more properties in the market and prices decreased more and more.

In 2014 the two friends realised they could not face the payments of the mortgage and they stopped paying regularly. They also contacted our firm for advice. We informed them that there is an option for people like themselves who are prepared to surrender the keys to the bank and be freed of the mortgage. It is called “dación en pago” and it involves signing a deed whereby the property and title are handed to the bank in exchange of the redemption of the debt. It is not a great solution as it usually involves writing off any investment and money put on the property but at least allows the clients to clear their bad investment in Spain and start from scratch in the UK with no debts. These clients were prepared to take this route and therefore instructed us to talk to the bank and start negotiations.

We contacted the bank, explained our clients’ situation and pushed for a dación en pago. The bank came back to us saying that the value of the property was lower than the mortgage. There was a 30,000 € shortfall and this shortfall had to be paid somehow. In layman terms, the property was now worth 160,000 € and they still owed the bank 190,000 €. The bank wanted to recover the 30,000 € shortfall and the solution offered was that the dacion en pago would be accepted provided that the clients signed a personal loan for the remaining 30,000 €. This option was not entirely satisfactory to the clients but they were prepared to sign the loan if the conditions were affordable.

A few weeks later and while we were in the process of waiting for the bank’s proposal, a debt collection agency was appointed to deal with this matter. The property was valued again and we took the opportunity that a new person was dealing with the file to explore the possibility of a full dacion en pago. We are not sure if it was pure luck or persistency (I have got the feeling that their valuation came higher than they initially thought and probably saw the potential of the property) but the debt collectors accepted the offer of a full dacion and suggested a date for the signing of the dacion. This was excellent news for the client as a full dacion consisted in handing the keys and the title to the bank in exchange of the clearance of the debt. Exactly what they wanted. The only requirement placed by the bank was that the property was transferred up to date of taxes and management fees. These were paid by the clients and we proceeded to sign the necessary deed of dacion en pago which freed the clients from this burden.

It was not the best outcome as this meant losing any investment put into the property but clients got rid of a massive debt that was affecting their finances. Furthermore, clients were aware that if they defaulted in the mortgage, the bank would repossess the property and eventually come after them in the UK for any shortfall due (and believe me there is always a shortfall). A slightly happy ending to a bad story. Obviously not all stories are like this and not all property owners want to get rid of their properties in Spain. Most prefer to keep them and enjoy them during their holidays. Others prefer to let them and wait until the market recovers. However, for those where the mortgage is a burden, there is always this possibility. It is not the panacea but it could allow a person who is struggling financially to clear some debts and start from scratch as a new person with no debts.

 

 

 

How to calculate the Inheritance tax in Spain for non-residents

Tulips Quite often I am asked how much is the tax payable on a Spanish estate. My first answer to that question is that the tax is not paid by the estate but is paid by each beneficiary on the basis of what he or she inherits. My second reply is that the Inheritance tax is calculated on a sliding scale where some coeficients are applied depending on the value of the asset inherited. It is therefore quite difficult to give a quick estimate without having the calculation rates next to me. Rather than using this post to talk about all the intricacies of Spanish Inheritance taxes, I think it would be useful to set up a case study with some imaginary names which would give the reader a taste of how the tax is calculated in Spain.  

Paul Herbert, British national, resident in Manchester dies in the UK on the 18th March 2012. He was divorced and had one daughter. He had assets in the UK and in Spain. There was a Spanish Will dealing with the Spanish assets and a Will dealing with the UK assets.

He left all his Spanish assets to his daughter, Isabel, who is 40 years old and lives in Birmingham. The funeral took place in the UK. The estate comprises a property in Marbella worth 295,000 euros and a bank account with 5,000 Euros. The property had no mortgage.

The house did not have any valuable assets, just the usual furniture for a house of this type.

The daughter is British and has never lived in Spain.

INHERITANCE TAX CALCULATION RATES (€)

 

Tax Base 
up to (€)

Tax liability
euros

Remaining Tax base up to
(€)

Applicable Rate

 

0.00

7,993.46

7.65

7,993.46

611.50

7,987.45

8.50

15,980.91

1,290.43

7,987.45

9.35

23,968.36

2,037.26

7,987.45

10.20

31,955.81

2,851.98

7,987.45

11.05

39,943.26

3,734.59

7,987.46

11.90

47,930.72

4,685.10

7,987.45

12.75

55,918.17

5,703.50

7,987.45

13.60

63,905.62

6,789.79

7,987.45

14.45

71,893.07

7,943.98

7,987.45

15.30

79,880.52

9,166.06

39,877.15

16.15

119,757.67

15,606.22

39,877.16

18.70

159,634.83

23,063.25

79,754.30

21.25

239,389.13

40,011.04

159,388.41

25.50

398,777.54

80,655.08

398,777.54

29.75

797,555.08

199,291.40

onwards

34.00

 

We know that the property was worth 295,000 Euro and that there was 5,000 Euro in the Spanish bank. The tax calculation would be as follows:

 

Real value

300,000

Chattels

9,000 (300,000 x 3%)

Gross Estate

309,000

Expenses  

0

Net Estate

309,000

Taxable Base

309,000

Allowances

Kinship (descendants)

15,956.87

Final taxable Base

293,043.13

Tax liability

 

Up to 239,389.13
Rest up to 293,043.13 (53,654) x 25.50%

Total

  40,011.04
                                                13,681.77

53,692.81

Multiplying rate

1.00 (She has no pre-existent estate in Spain and is the daughter of the deceased)

 

Inheritance tax

 

53,692.81

 How did we get this figure?

The real value is 300,000 € and this includes the value of the property (295,000 €) and the balance in the bank account (5,000 €). When there are no relevant chattels Spanish laws consider that the value of the chattels is 3% of the real value. That is why we have this amount of 9,000 € shown as chattels (300,000 € x 3%).

The funeral expenses were incurred in the UK and therefore cannot be deducted as an expense. We are then left with a Net Estate of 309,000 € which will be used as the Taxable base to which the necessary bases and percentages apply. But before applying any bases or percentages we need to apply the necessary allowance which will vary depending on the kinship. Children have an allowance of 15,956.87 € and therefore the final taxable base will be 293,043.13 € (Taxable base – Allowances).

It will then be a case of applying the tax base and percentages indicated in the table at the beginning of this document. This is done in two stages:

–       Up to 239,389.13 € the amount to pay will be 40,011.04 €.

–       The rest up to 293,043.13 € (in particular 53,654 €, which is the difference between 293,043.13 € and 239,389.13 €) will be calculated applying the appropriate percentage which is 25.50% leaving a second amount of 13,681.77 € to pay.

The tax liability will be the sum of both amounts (40,011.04 € + 13,681.77 €) = 53,692.81€.

Finally, a multiplying rate has to be applied depending on two factors: kinship and the value of the previous estate of the beneficiary in Spain. If the latter is less than 402,678.81 € then the multiplying rate will be 1 (which is the case of the daughter as she has no previous assets in Spain)

The Inheritance tax to be paid by Isabel will be the tax liability (53,692.81Euro) multiplied by the multiplying rate 1 = 53,692.81

Tax to pay is 53,692.81 €

The IHT paid in Spain can be offset in the UK to avoid double taxation.

 

Ok, a dación en pago has been approved. Now what?

 Businesswoman viewing the contract before signing

 

 

 

 

 

If you own a property  in Spain but you are no longer able to pay its monthly mortgage instalments, one of the possibilities contained in the Spanish legal system is the dación en pago which is the procedure to enable consumers to surrender their properties back to the bank in exchange of clearing the debt.

In previous posts we commented that the amount of these procedures has decreased and it is no longer easy to get a dación en pago accepted. The fact of being a non-resident does not make things easier and some Spanish banks are too busy to be concerned about non-residents debtors as they have more important defaults to deal with in Spain.

If you have contacted your Bank and the Bank has accepted your case, there will be some tax consequences that you have to face. One of them is the payment of 3% Capital Gains Tax retention. This percentage is usually known for being the tax on the gains obtained in the sale of a house when the sellers are non-resident.  Given the circumstances in which this process is approved, you may think that there is no obligation to pay it. However, the truth is quite different. The 3% retention over the value of the property is also applicable in a dación en pago. The only exemption applicable to the dación en pago applies to those who are close to the level of poverty and for whom the house is their main residence. Therefore this kind of transactions for non-residents are still considered taxable regardless if there is a gain or a loss. Having said that, many Banks will bear that cost if the value of the property justifies it.

This 3% should be differentiated from other taxes due as the payment of the plusvalia tax, the payment of the annual property tax (I.B.I or SUMA) and the Community of owners’ fees which also need to be paid by transferor of the property before its transfer. In spite of the above, the real challenge these days is to have the dación en pago agreed. Banks are no longer keen on this agreement and very often the only way to achieve this result is instructing a lawyer able to negotiate the terms and explain the situation to the bank in plain Spanish. And for those lucky (or unlucky, depending on how you view it) enough to have arrived to an agreement with the bank for the surrender of the property, bear in mind that the Bank is entitled to request payment of all the appropriate taxes and costs prior to the transfer. Once again, it will all depend on your negotiation skills!

 

 

 

 

 

Networking of Spanish businesses in Leeds

 IMG-20140306-WA000

 

 

 

 

 

 

From left to right: Igor Urra, Alejandro Benavente, Antonio Guillen and Enrique Sanchez

Great event on the 5th March at La Tasca in Leeds organised by a group of businessmen in Leeds, particularly Alejandro Benavente and Blanca Gonzalez who did an excellent job organising this fabuluos event in Leeds where a group of more than 6o attendees networked and gathered to discuss the business possibilities that the North of England, and more importantly Leeds, can offer to Spanish companies or UK companies with an interest in Spain.

Igor Urra, Secretary General of the Spanish Chamber of Commerce in the UK attended the event as well as other business men in the Leeds area and delegates from the Spanish Language Institute (Cervantes) in Leeds.

The Honorary Consul for Liverpool, Enrique Sanchez, also attended the event showing his interest in an initiative that can easily expand to other cities in the North.

See below detailed coverage of the event by the online newspaper El Northern. Please note that the article is in Spanish!

http://elnorthern.com/2014/03/06/spanish-business-quarter-inicia-en-leeds-el-networking-empresarial-con-sabor-espanol/

Antonio Guillen is a dual qualified Spanish lawyer and English solicitor at DWF LLP. He is also the Honorary Consul for Spain in Greater Manchester, West Yorkshire and North Yorkshire

 

 

DEATH, BANK STATEMENTS AND TAXES IN SPAIN

When the Spanish estate is not only made of properties 

morguefile com1 (2)

 

 

 

 

 

When inheriting assets in Spain, the first thing that comes to mind is property but the truth is that assets also involve bank accounts, shares and other type of properties such as a car or even a boat.

We have written various posts about the procedure of dealing with inheriting a residential property but not enough posts on a related matter like the money in the Spanish bank. These accounts are often used to pay utility bills and taxes related to the property. However, some people who have been living in Spain for long periods of time end up, understandably, gathering important amounts of money in the bank. 

Whether you are dealing with an estate with both property and bank accounts or just a simple estate with a bank account, it will be necessary to contact the Bank in order to obtain a certificate showing the balance at the time of death. In certain regions of Spain, like the Balearic Islands, the bank will also provide you with a statement showing the transactions that took place in the 12 months before the death.

Banks generally will want to see the original death certificate, the certificate of last will and the last will of the deceased. Don’t be surprised if the bank only accepts to release information to a beneficiary or to a person that holds power of attorney from a beneficiary. This is also applicable to lawyers. Contrarily to what happens in the UK, where the solicitor’s word indicating that he/she is acting for the beneficiary or the personal representative is sufficient for the bank, the Spanish Banks will want to see a letter of authority or a power of attorney from the beneficiary to the lawyer. In certain occasions, the bank will only accept to release the information if the documentation is presented at his branch in person by the beneficiary or his lawyer! Finally, some banks will charge a fee for opening a “testamentary file” and producing the certificate, something that is clearly unfair and abusive and that should be challenged if demanded.

All the UK documentation, such as the death certificate, Grant of Probate and UK Will (if applicable) needs to be   translated by an Official Translator and legalised with The Hague Apostille to be valid in Spain.

Once the bank is informed about the deceased’s demise, the account will be frozen until the Inheritance Deed is signed and the Taxes paid. Once all this happens, the beneficiaries or the lawyer holding power of attorney will appear in person at the bank supplying the Inheritance Deed, the certification of the payment of the inheritance tax and they will sign a document agreeing the destination of the money, either transferring this directly to a UK bank account or keeping it in a Spanish account.

The above can seem complicated and the fact that each bank (and branch!) operates differently can make the whole procedure look far more complex than what it really is but in the end everything is down to providing the bank with the documentation requested and fulfilling its criteria so funds can be released as per the beneficiaries wishes.

Buying property in Barcelona

old medieval street

 

 

 

 

 

 

 

 

 

Barcelona is probably one of the most beautiful cities in Europe. Woody Allen tried to show it in his famous film “Vicky Cristina Barcelona” although he excesively focused on the usual landmarks and buildings, forgetting that there is beauty in many other places apart from the usual constructions from Gaudi. However, it still was a good marketing tool for the city.

Property wise, Barcelona has suffered like any other city in Spain. Property prices have fallen for the last 5 years although 2013 has brought some interesting news. According to the Real Estate website www.idealista.com , property prices in Barcelona fell by only 1%. This may look like bad news to most of you but the reality is that the forecast was for a fall of at least 7% to 8%. What has happneed then? La Vanguardia newspaper thinks that this reduction in the decline of prices is due to Foreign Buyers. In fact, the said newspaper estimates that 10% of those who buy in Barcelona are probably foreign, being Russians, Chinese and Indian the nationalities that are showing more interest in the city followed by the usual British, French and other Europeans.

One of the reasons for this increase in interest from non-European investors is the so called “Golden Visa” which grants immediate residency rights to any non-European investing more than 500,000 Euro in property in Spain. At the same time, many Foreigners look at Barcelona’s potential in the touristical rent market. The city is used for long weekend breaks, stag does, romantic breaks and many others and in most cases those travelling to Barcelona use touristical apartments rather than Hotels, being this type of accomodation an alternative with some relevant success.

So, what should you do if you are interested in buying a property in Barcelona? The first thing you should do is take a holiday in Barcelona and explore the city. Your budget and motives shoud vary depending on whether you are looking to buy a first home, a second home or an investment. Many Estate agents speak English and they should be able to point you in the right direction. Once you find a property that you like, the agent will probably ask you to pay a reservation of a few thousand euro or perhaps even a deposit. This is where the lawyer work starts and where you need to tell the agent that you will instruct your own lawyer for the transaction.  You will be told that there is no obligation to instruct a lawyer in Spain and that there is a professional called “Notary Public” who can prepare all the documentation. Yes, that is correct in a way but it is still very advisable to instruct your own lawyer in the same way that you would do in the UK.

The lawyer (abogado in Spanish and advocat in Catalan) will check all the documentation and advise you before you enter into any contracts. He will also carry out searches to check the planning situation and whether the property can be let out as a touristical apartment. You can find Spanish lawyers in Barcelona, of course, but also in the UK. It is up to you to decide which lawyer you want to use. Some investors prefer to use a Spanish lawyer based in the UK because they are regulated by the UK Law Society, others prefer to use someone local. The important thing is to instruct an independent Spanish lawyer and not to proceed with the purchase without independent advice.

Enjoy the city!!

Antonio Guillen is a dual qualified Spanish lawyer- English Solicitor from Barcelona who is currently practising in the UK.

 

Spanish Honorary Consulate office in Manchester

Office Map

 

 

 

 

 

The Spanish Consulate in Manchester closed more than 2 years ago. Since then, all consular matters for the North West were transferred to the Spanish General Consulate in Edinburgh. Very recently an Honorary Consular office has been opened in Manchester and located in our Manchester office. The Honorary Consul is Antonio Guillen, writer of this blog, a dual qualified Spanish lawyer and English Solicitor at DWF LLP in Manchester. Antonio will cover the regions of Greater Manchester, West Yorkshire and North Yorkshire.

The functions of an Honorary Consul vary depending on the Country. When it comes to Spain and the Honorary Consulate in Manchester, the functions are restricted to giving support to both Spanish and UK nationals in those matters where the Spanish Consulate in Edinburgh requires assistance. Some of those functions are the following:

– Dealing with passport applications for Spanish nationals who are less than 12 years old

– Eventual support to Spanish nationals that require urgent assistance in this area of the country (subject to permission from the General Consulate in Edinburgh)

– NIE application forms for those cases where the applicant cannot travel to Edinburgh

– And in very specific cases, certificates and consular documents

The Spanish Honorary Consulate in Manchester cannot prepare Spanish powers of attorneys, wills or deeds but the firm where the Consulate is based can provide this service. Alternatively, those who need one of the 3 things quoted above can travel to the Spanish Consulate in Edinburgh where this service can be provided or fly to Spain and get the said documents done by a Notary Public.

For further information on Consular matters please contact Spanishconsul@dwf.co.uk

For further information on Spanish legal matters please contact antonio.guillen@dwf.co.uk

First use license and habitation certificate. Tomatoe, tomato. Are they the same thing?

stock-photo-17808460-happy-couple-holding-for-sale-and-sold-signs-kissing

 

 

 

 

 

 

 

There are two documents which are essential before moving into a house in Spain. They are called first use license (“licencia de primera ocupación”) and habitation certificate (“cédula de habitabilidad”). These two documents sometimes have their own validity and in other occasions complement each other. It is difficult to summarize the requirements for these two documents because each region has its own legislation and also because they are very similar.

The First use license aims to check whether a property has been built according to the technical design and to the building permit. Once granted, it confirms that the construction has been built in accordance to the licence granted and the designs submitted at the Town Hall planning office. This licence is therefore vital for new properties or for properties that have been totally converted or with relevant major works. The person obliged to request this document is the holder of the planning and construction permit, generally the owner or the property developer.   It is an essential document required to apply for the provision of utility services, such as electricity and water and some regions in Spain demand this document prior to selling or letting a property.

In the most extreme cases, the absence of the said license could even imply a cause for the termination of a rental contract.  The lack of a first use licence can also prove a problem for an Estate Agent as he could be held liable for not checking this point and he could lose the right to receive his commission.

On the other hand, the Habitation Certificate is a document that certifies the minimum safety, health and occupation levels in a property in order to be dwelled. Furthermore it controls the minimum living surface and equipment in the property.

In certain areas like Cataluña, this document is compulsory and a property cannot be sold or let without it. In other areas, the first occupation licence covers the functions of the habitation certificate and therefore there is no need to obtain both. Depending on the kind of property and the place it is located, the expiration time will be different and will range from 6 months to 15 years. These are the reasons why it is advisable to verify this point before signing any contract or committing to the purchase of a specific property.

Obtaining this document is not complicated. If the seller does not have the document you must ask the seller to supply it before completion. If this is not possible and you are prepared to take the risk of completing without the habitation certificate in place, you must sort it after completion. The best way to do it is by contacting an Architect and requesting him or her for a certificate which will have to be endorsed by the Professional College of Architects. The Architect will inspect the property and verify that the property meets the regulations. It may be the case that someone appointed by the Town Hall also inspects the property prior to issuing the certificate of habitation, although this is not necessarily the case.  Once you have the Architect’s certificate, you have to present it before the corresponding public administration, together with the documentation required. Then, eventually, a certificate of habitation will be issued.

As indicated, these are vital documents that need to be requested prior to buying a property in Spain. Each region has its own intricacies but in general terms most of the regions in Spain request the existence of a document certifying the habitability of a property. These could mean both the First use licence and the habitation certificate or just one of them. When in doubt, the best thing is to seek independent legal advice as the lack of such a document could imply that the property is illegal and non-habitable.