What should I do regarding my property in Spain when my spouse is seriously ill?

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Posted and filed under Legal Issues in Spain.

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We recently had a case where a gentleman came to us for assistance with completing an inheritance from his wife to him after she had passed away in Spain whereby there was just a bank account.

When I asked him if his wife had any other assets in Spain to take into consideration, such as a property in her name or in joint names he said no because I was advised, well pressed, into her gifting her half of the property to me before she died. Now I realise that this was not the best thing to do.  Unfortunately it was not.

We are writing this article partially as warning to be careful when someone is very ill not to feel panicked into taking action without being very sure it is the right course of action and so that you are aware what not to do.

In the Valencian community where we are based, and which is a very large community of Spain, there is a fairly generous tax-free allowance for spouses of 100,000€ for inheritance plus additional allowances when you are resident at the moment.

This means that if you are married and leaving your assets in Spain to your husband or wife it is very unlikely that there will be a shock regarding inheritance tax.

However, and this is very important, there is NO allowance at all in making a lifetime gift (or transferring assets) when you are alive to a spouse in this region. This man,when they arranged for the transfer of his wife´s half of the property in Spain to him when she was ill, had to pay a substantial amount of donation tax, which would not have been incurred if matters had taken their natural course and the transfer had been done as an inheritance or probate after she died.

Please note that there are many things to put in order when you are aware that one of you is very ill (making Spanish Wills is a good idea, making sure that all important documents such as deeds,
NIEs, SUMA/IBI bills, passports, Wills, can be easily located), but transferring property ownership by a gift to a spouse is not one of them. It is a grave error and waste of money and our gentleman received very poor legal advice.

This leads me onto two other important points:-

1) Please be aware that in Spain ownership of a property is not automatically passed to a spouse on death when it is jointly owned.

We have written another article on this
https://www.spanishsolutions.net/blog/legal-issues-in-spain/explanation-of-types-of-ownership-in-spain/ .

Therefore when joint assets are owned a probate process has to be done and assets transferred
via a deed at the Notary and if a property, the Land Registry. For the joint account in the bank, our gentleman has to do a Spanish probate to prove to the bank that he is the heir.

It is just different (and more burdensome) than the UK and Ireland, but unfortunately that is the way it is. If there are assets, after death a probate has to be done to transfer them tothe next of kin.

2) When should a lifetime gift or donation of property be made?

In the past two years we have been very busy with donations in this region. As each child (children of the property owners but adults) gets a 100,000€ tax free allowance at the present time, this generally means that a property can be passed onto the next generation with little or usually no inheritance tax. You cannot get better ever than no inheritance tax!

Thus it has led to a lot of people thinking we will pass on the property into our childrens’ names now, with minimal expense (there are still going to be notary fees, land registry fees, solicitor fees and some other ad-hoc expenses but there will always be these with a donation or lifetime gift, or in the future with an inheritance/probate).

3) Isn’t there a way of transferring ownership of half of our jointly owned property to one of us, not because one of us is ill, but becuase of another reason, such as divorce in a less expensive manner than one of us buying the other out?

In Spain, transfer tax on buying a property or share of a property is fairly high, and fortunately in changes of ownership such as when a couple are divorcing or two business partners are going separate ways there is a method of division of property ownership whereby only stamp duty and expenses are paid.

Stamp duty in the Valencian region is currently 1.5% on the tax value of the property; transfer tax
on a property is 10%, so you can see there is a considerable saving. If two or more people do not want to be owners (as long as a sole owner is left),this is a very good way to alter the ownership of a property.

In Summary

When someone is ill is not a time to take immediate action without double-checking any advice but bear in mind that after a spouse passes away if they have assets in Spain a probate will need to be done
and any inheritance tax paid within six months. It is therefore best to contact a solicitor fairly quickly after a death.

Secondly, now is a very good time in the Valencian region to consider donating a property to your adult children. We are happy to calculate the costs and explain the benefits and any drawbacks to
someone free of charge.

Thirdly, the division of a joint ownership arrangement exists as no one should have to be joint owners of a property if they do not want to be and there are other alternatives to a sale. Again, we are willing to calculate costs and help anyone in this respect or any other issues with regard to property ownership.

16 Comments

  • mark uttley

    Hi
    My parents have owned a property in Spain for 5 years and sadly my father has just died.
    My mother wants to keep the property. Is there anything she needs to do

    • Nicola Ryan

      Good Morning Mark,

      We are so sorry to hear about your father.

      When someone passes and there is an estate here in Spain, a probate has to be carried out as per the instruction on the will, my colleague Amanda, who deals with probates on a daily basis will contact you via email to discuss this matter further.

      Kind regards
      Nicola

  • Jackie

    My apt in Spain was left to me as a gift but I’m now getting divorced can my husband claim half

    • Nicola Ryan

      Good Morning Jackie,

      We understand your concern. In order to give you the correct advice, we need to ask a few questions. Amanda, our paralegal will contact you directly to discuss this matter further.

      In the meantime, should you have any further queries, please do not hesitate to contact us.

      Kind regards
      Nicola

  • dawne Turn

    HI,

    My parents owns an apartment in Spain and my dad has sadly passed away. He has made a will in Ireland
    My mother wants to keep the apartment there is any­thing she needs to do? We are having a probate in Ireland does this stand for Spain?

    • Amanda Thomas

      Dear Dawne, I am going to email you directly as yes a Spanish probate will need to be done also, I am very sorry about your father, With kind regards Amanda

  • Tracy

    Hi
    My mum and stepfather bought a property in valencia spain about 8 years ago, they have lived out there since buying the property. Sadly my step father has passed away. My mum has said she has to pay tax on his half of the property. I dont understand this can you please explain to me I’m very confused and would like my mum to come home but shes saying she cant till shes paid the tax.

    • Amanda Thomas

      Dear Tracy, From your message it seems the property is in joint names. I am sorry about your stepfather. I am assuming your mother is his heir and a solicitor is dealing with the Spanish probate. In Spain, properties are held in shares not jointly usually. So his 50% share needs passing to her as a probate process. There are various costs associated with that, the solicitor should provide a breakdown and also town hall tax and often inheritance tax. I imagine your mother is trying to get this all finalised and then will come home. (She can travel and do it as a non resident but maybe she wants to get it sorted first). Kind regards Amanda

  • margherita ciraolo

    hello, my mother wants to sell her home in spain, my father passed 17 years ago but she never took him of the deeds. what are our next steps, she would like to sell the apartment? probate? Thank you

    • Ian C.

      Hello Margherita,
      We can of course help you with this situation. Needless to say, it is a little complicated.
      Spanish solutions have a number of trusted estate agents we work with all over Spain.
      Where is the property, please? We can put a package together for you to cover the legal working, selling the house, taxes etc.
      Really this should all be handled in one file; everything is connected.

      We’ll be in touch later in the week via email and we may need to arrange a (totally free, no-obligation) call or Zoom chat.
      That way we can explain the process, costs, time frame etc.
      Bottom line, please don’t worry, we will take care of every aspect of your mother selling her Spanish home.

      Ian

  • Carol

    We had a Spanish will drawn up when we moved to Spain 17 years ago. Leaving the house to each other upon death of one of us then to the children upon the death of second partner my husband has died so I want to know if I can sell the house

    • Amanda Thomas

      Dear Carol, Please accept my sincere sympathy regarding your husband. I am sending you an email privately, Kind regards, Amanda

  • Sharon Delacruz

    Hi my mum’s boyfriend has sadly passed away in Spain they was not marry just live together in Spain till my mum passed away 6years a go but I was still part of mum’s boyfriend life till he passed away last year .
    I received a email from his solicitor saying he was in hospital and would not be allowed to live in his home (mums boyfriend name Alan)
    They ask me for information about Alan’s family I didn’t have any information as there was no contact while I knew Alan I was aware there was a adopted daughter but I only knew her first name no other person took time to fly out to see what was happening as Alan was a strong independent man before going into hospital. Alan has fallen in his house and needed to go to hospital neighbour found Alan on the floor. I went to the hospital and saw Alan who was not eating or drinking he had a dip in his arm doctor was considering putting Alan into residential care due to his home being dirty there were no sign of injury to Alan that I could see ?Alan has spoke in the past about what he would like to happen when he was not able to look after himself and that he wouldn’t like to go into residential care he would want to live his life out in his house. Alan wanted me to go and live with him but that was not possible at this time due to my own family but I would fly over if Alan needed some things done or just to stay with him for a week or so Alan was lonely so he would phone and say come over which I always did. Before I left Spain to come home for Christmas I gave the hospital my name address and phone number to keep in contact as to Alan health I received a phone call from the hospital saying Alan’s passed away on the 23/12/22 they ask me to come back to Spain to sort Alan’s body but in the meantime I was told by Alan’s solicitor that Alan’s daughter was the only one they could speak to and couldn’t help me with sorting Alan body to be put to rest iv try to speak with Alan daughter but she will only speak throw another person we both know saying no one can give her details to anyone and she want nothing to do with any of this iv information the solicitor this information but no one is doing anything about putting Alan to rest now the British consulate has been in touch with me iv passed all that I know to them they told my I could write a letter saying I couldn’t paid for Alan’s funeral but it would help the hospital deal with the funeral and I don’t know what I should do have you any advice for me it hurt knowing Alan’s in hospital and not at rest

    • Amanda Thomas

      Dear Sharon, I have sent you an email privately, Kind regards, Amanda

  • angie

    Hi My husband and i are still married but my husband has taken my name off his will. His 4 children are still on it. If my husband dies will i have to sell the house in order to give them their share of half of the house I still live in it but my husband is now in UK The house is in joint names and paid for Thank you

    • Amanda Thomas

      Dear Angie, You each have probably 50% share of the house. If he dies and his 50% goes to his 4 children you will become (after his probate is finished) 5 owners. If he has not given you ususfruct (the right to use his share of the house until you die) yes his children could take you to court to enforce a sale, but maybe they would not do this, as it is expensive. Kind regards

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