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Spanish Assets- Lifetime Estate Planning

Spanish Wills &Estate PlanningPosted by Andrew Fri, March 24, 2017 00:05:50

At the outset of many estate planning cases which involve Spanish assets, advice is required as to the options for ownership changes within the family.

A typical scenario is: a married couple, who have owned their Spanish holiday home for many years, but health/ mobility issues as they have got older, mean that their use of the holiday home is on the decline. But meanwhile, their children/ grandchildren are very happily ‘taking over the reins’!

In terms of estate planning then, the Spanish property starts to become more of a liability than an asset- particularly in terms of potential future inheritance tax liability.

The Spanish property is usually non-income producing (particularly in the light of recently introduced increased bureaucratic requirements for short term lettings in Spain). So, it seems logical that the ownership should be ‘passed down’ within the family, to reduce estate size/ future tax liability- but without any loss of income (and still with the possibility of the continued occasional use of the property by the transferor).

This is logical in theory; but other than the obvious practical considerations (the assumed continued solvency/ marital situation of the recipients; and assumed continued harmony within the family), there are important additional considerations which need to be borne in mind; including:

1. There is a Spanish taxation liability for recipients of gifts of Spanish assets, the calculation of which is broadly similar to Spanish Succession Tax, (but without all the regional allowances and deductions). In other words, the Spanish lifetime gift tax has a similar- or higher- impact on the recipient than if they were to inherit the asset. (This is therefore entirely different in concept to a Potentially Exempt Transfer under the UK IHT regime). There can, of course, be situations in which the Spanish lifetime gift tax does not counteract the fiscal wisdom of a lifetime transfer- for example, if in overall (worldwide) estate planning terms, it is still advantageous to pass the Spanish property down a generation (or two); or if a Spanish property can currently be transferred at a low value- so a relatively low tax amount- when a future increase in value is anticipated. It can be better in that case, for the next generation to ‘enjoy’ the uplift in value, rather than storing up an ever increasing Spanish Succession Tax liability in the original owner’s hands.

2. Further on the Potentially Exempt Transfer point- whilst a UK tax payer making a gift of their Spanish property within the family could constitute a Potentially Exempt Transfer- so over time, it comes out of the worldwide taxable estate for UK IHT purposes- one would need carefully to consider the fiscal consequences of the donor failing to survive the qualifying period to achieve the maximum UK IHT benefit.

3. Also for UK nationals considering making a lifetime gift of a Spanish property within the family, UK ‘gift with reservation’ considerations need to be addressed and factored into the arrangements for any continued use of the Spanish property by the donor. As would be the case with a UK asset which is gifted, but then still used by the donor, the continued use of the asset needs to very carefully documented/ financially accounted for, to avoid the gift failing for UK IHT purposes; and the asset therefore not (fiscally) leaving the donor’s estate.

4. A change of property ownership in Spain can be effected by way of a sale between family members rather than a gift- as often, the rate of tax on a sale is less than the rate of tax on a lifetime gift. However, this type of transaction would inevitably be very carefully scrutinized by the Spanish Tax Authority, to ensure that the sale is not a sham, simply to reduce the taxation basis from lifetime donation down to the sale taxation level. So, the property could not be sold at an undervalue; and the Authorising Notary would actually need to see evidence of funds passing between the the buyer and the seller. And of course, the funds for the transaction cannot be provided by one family member to another within Spain, otherwise that would be a taxable lifetime gift of the money! So, any such transaction has to be extremely carefully orchestrated, to be legally and fiscally compliant. And an assessment has to be made on a case by case basis, as to whether or not this is advantageous when compared to a lifetime donation transfer.

5. A change of Spanish property ownership- even within the family- triggers other costs and taxes, so these need to be factored into the equation. In addition to the donation/ purchase tax, the additional expenses include Notary and Property Registry costs; and Plus Valia tax (a local Town Hall tax payable on property transfers, based on rateable value and length of transferor’s ownership. It can also be necessary to update contracts for property services (water/ electricity, etc), and this can trigger a requirement for re-certification for safety/ compliance purposes; and possible updating/ upgrading of supply apparatus.

The above is a non-exhaustive checklist of the issues. In the majority of the cases we see, whilst a full analysis and discussion can be helpful, the conclusion is that the costs and complexities of a lifetime transfer of a Spanish property within the family outweigh the benefits. In this case, the focus returns to tax efficient Spanish Wills and estate planning.

The Legal 4 Spain team is always available to provide preliminary advice on a no- obligation in estate planning cases involving Spanish assets.