Majorca Property News

Inherit and bequeath property in Spain

For foreigners living in Spain is sometime the question of what, at the latest after her death with their own property should be done. In the jungle sections of the Spanish and German law is expected to barely a (Non)-Resident find.:

The legal and tax questions arose during a succession similar to the acquisition of the property. The Spanish notary and land registry system is very different to the German. Above all, required for registration in the land of the heirs of the inheritance notarial adoption. Only then can the heir eg sale. There are special features such as these, which is not available in Germany, but in the context of the liquidation of the succession must be observed, though in fact German law of succession applies. The Spanish (Holiday) in the case of a property is an inheritance to the heirs (Section 1922 BGB).

The succession, land law and tax law questions are once again under German and Spanish law. When a German testator is the sole German Inheritance Law (Article 25 and Article 9 EGBGB No. 8 Código Civil). Thus, the seemingly simple case of a heritage property in Spain but not resolved. Because the German heritage will now acquired the property on his behalf to rewrite, so it must be under Spanish law the mandatory notarial adoption inheritance explain. The notary, however, be effected differently than German notaries do not automatically transfer the land. For these reasons, caution is advised. Here, as in real estate acquisition itself, by the notary by fax or e-mail the land, the fact of inheritance shall be (asiento de presentación), which is a 10-day vesting period or 60tägige (similar to a German flag) triggers.

Is essential for the registration of the adoption of inheritance, even if the property then be sold and the purchaser with a bank financing for the purchase price is required. Banks want is that first, the inheritance in the land is registered, before taking a mortgage finance for buyers grant. This land record is backed up, also need to heirs a NIE number (número de Identificación de Extranjero) apply. Without payment of inheritance taxes, the definition does not take place. And without an NIE number, the taxes are not timely paid. The receipt of this number sometimes takes up to two months.

SPANISH AND ENGLISH inheritance tax
The inheritance means that inheritance taxes in half a year from the death must be paid. This can be adopted without prior inheritance happen. Most will, however, until this declaration, then the tax payment. Who the inheritance taxes are not paid within the time limit, must reckon with significant surcharges. Property taxes are, however, beside the Spanish high inheritance taxes not.

Because a double taxation agreement in respect of inheritance taxes is missing, in principle, the inheritance tax in both countries, in parallel, so twice, to be paid. It is only the credit method, ie, the taxes are lower for the higher taxes into account. In general, in Spain, the inheritance taxes are substantially higher - this is because even for children as a rule, only heirs of an allowance in the amount of approximately € 16,000 is provided, while in Germany, an allowance of € 400,000 is now.

Without a degree in Spanish is also free. Even small fortune to be taxed, while in Germany is not the case. The Spanish inheritance tax is even in children with a scheme in Spain and assets of only 120,000 € 16.15% ie € 15,606, with € 400,000, the percentage was 25.5% and the tax is € 80,655. From about € 800,000 property, the tax rate constant 34%. Further increases the tax rate, if the heir is Vorvermögen Spain.

In succession, however, is the heir of the value of the property mostly unknown. There are often prescribed instead of the market value (valor real), the land value multiplied with 2 and a true value and thus a taxable basis. The cadastral value but below the market value, so the tax the traffic and determine taxable value and determine. Then after strokes collected which can be very high. Apart from the inheritance tax is also called plusvalía, the community gains tax. If you think the owner of the inherited property has become, then you have an annual property tax (IBI) to pay. Besides falling in Spain as income before taxes on the property use. The property taxes have recently been abolished.

Welfare and LAW
Because the method described is complex, you should be professionally competent advice. By providing advice in Spanish and in German inheritance and Steuerecht is a possibility, not only the acquisition of a Property Spain, but also the adoption inheritance inheritance tax law with preventive aspects.

DEFINITION OF LIVING / NIESSBRAUCHSRECHT
To the high inheritance tax to avoid transfers of property can be inter vivos made, and a life-long residence for the parents to be reserved. A donation, however, nothing good, because the gift tax identical to the inheritance tax, but not even an exemption is granted. An inter vivos transfer is not free, but reduces the inheritance tax burden.

You should know that even a usufruct right distrainable (the abode, derecho de habitación not) and the potential deceased usufructuary and now by his dependent children and no longer able to sell freely. Because sometimes the favorite children have the habit, the evil spouse to marry, family conflicts are often inevitable. The children can parents subject to German law irrevocable "restitution, attorney" type. Whether such a constellation but the strict Spanish land judges stand, ultimately depends on the individual case.

DEUTSCHE notarial power of attorney
A German law imputed notarized power of attorney may be beyond death effective. Under Spanish law, however, powers of attorney automatically expire with the death of the attorney grantor / testator (Art. 1732 Nr.3, Art II, 1718 Civil Code). There may be a boundary between German and Spanish law, which has not yet been sufficiently investigated and risks, but also can be used.

LIMITATION OF inheritance tax?
There are some old cases in which the heirs to a transcription had waived after the deceased had died. In this case, it may happen that the declaration period of six months expires without the taxes have been paid. If they missed, threaten surcharges. It is not advisable to wait just because of tax consequences, which are hardly predictable. It is much more proactive and preventive action and shape, before he died. The statement in the period subsequent limitation period of four years (total of 4 1 / 2 years), but according to Article 25 II Spanish inheritance tax law and in the opinion of many Spanish tax authorities, only begin to run when the tax office also has full knowledge of the succession and its tax law practice, if the heirs did not self-taxation procedures, the inheritance tax declaration deadlines have. This legislative change also threatens the existing lacunae are.

CONVERSION OF PROPERTY IN AN SL-SOCIETY
It may offer the property in a non-active company (sociedad inactiva, Spanish GmbH ([family]-SL)) or to convert them. In addition to the effect that the owner will not be named in the land is, the succession may also be relatively flexible regulation.

At least according to German law, children can gift every ten years from now the allowance 400000 € by a monetary donation in Germany and out every ten years from their parents with the money gifted shares in Spain without any German tax incurred. Gift Under Spanish law, however, there is no gift tax exemptions.

GERMAN AND / OR SPANISH TESTAMENT
Building a Testament in Spanish notary is a few exceptions, are unnecessary and are often caused due to inconsistencies in a German Testament problems. However, there are exceptions where it makes sense, a Spanish Testament, which is only on assets situated in Spain relates to erect. For example, if only in Spain is situated assets. Here, however, preceded by a discussion and may need to coordinate with the German will take place.

Because the notaries for the definition in the land, not for the payment of taxes and not on the monitoring of deadlines sure there are lawyers representing the interests of clients in Spain are fully represented. Also, the fiscal design in buying and selling should be discussed and examined. The same applies to inheritance and divorce cases and even for insolvent German citizen with Spain real estate. The design saves money. The future can wait, however much money.