This is the first of a two-part series in which lawyer Raymond Nesbitt explains the process for inheriting assets in Spain as a non-resident, and provides an outline on Spain’s Inheritance Tax (IHT).
By Raymundo Larraín Nesbitt
Lawyer – Abogado
21st of February 2016
Death and taxes are uncomfortable matters that most people loath to think about and put away at the back of their minds. I understand and share this reluctance to some extent but at some point, sooner or later, it affects us all. If you own assets in Spain, you should plan ahead for your demise which will make things considerably easier on your appointed heirs at a time of bereavement. The following article supplies tips on how to streamline the succession procedure in Spain saving your heirs time, money and hassle. My article is tailored to cater to British and Irish nationals but may also apply to other nationalities.
The initial idea behind it was to keep it short and simple; unfortunately over time it grew considerably longer than I anticipated so I apologise in advance for the wall of text. I have split my original article into two parts; the second article deals with state and regional tax allowances: Spanish Inheritance Tax for Non-Residents (Part II). As it is a long winding article I strongly advise readers to skip through sections they can’t be bothered with and focus only on what may interest them. This article was not written expecting people to read through it entirely, as would normally be the case, but rather to focus on specifics.
This article does not provide Spanish inheritance tax avoidance strategies – which doesn’t mean there are plenty. I simply don’t want to get ahead of myself and wander off topic. I’ll leave these strategies for another article.
The topic of inheritance tax in Spain is a fairly complex and technical one, allowing for multiple articles on the matter (see my full list of inheritance tax-related articles at the bottom). Besides a national legal framework (Inheritance Tax Act of 1987 and Regulation 1629/1991), which acts as a backbone, each of Spain’s 17 regions (Autonomous Communities) are also empowered to rule on some aspects enacting their own laws i.e. on applying their own tax allowances, which differ significantly from one region to the next, or else on applying their own tax rates (within limits).
There’s an ongoing trend to abolish Spanish Inheritance Tax (IHT, going forward) fostered by Spain’s conservative party. These trends are always very popular amongst voters. Many Autonomous Regions have jumped onto the band wagon and are now applying reductions on IHT to such an extent which in practice translates to almost suppressing it i.e. Madrid, Basque Country, La Rioja, Navarre, Catalonia, Valencia, Balearic and Canary Islands.
As examples of this tendency the Canary Islands have just approved with effects as from the 1st of January 2016 a drastic cut to inheritance tax for non-residents which will result in taxpayer’s saving over €30 million per annum. You can read further in English here. You can also read here how some political groups have been campaigning collecting signatures throughout February 2016 to suppress inheritance tax in Andalusia. EDIT: 8th September 2016. New regulation has recently been passed in Andalusia which greatly reduces the inheritance tax burden. More details in my article.
Other regional communities, despite not having suppressed IHT, apply their own tax allowances in addition to those set by the Government in the above laws. We can glean from the above there are two tiers of regions in Spain when it comes to inheritance tax; some are more tax-friendly than others (to the point of suppressing this tax). In a section further below (under the heading “Regional Tax Allowances”) I give a full breakdown of these exemptions in the six most popular regions with English expats (coastal areas).
For those individuals holding large estates in Spain, it is your responsibility to contact a Spanish lawyer and do some careful tax planning to mitigate your heir’s tax bill (or even suppress it). I strongly advise that beneficiaries, on inheriting assets in Spain, appoint a Spanish lawyer to oversee the succession procedure and file IHT on their behalf. You cannot realistically attempt to do this on your own as it is overtly intricate (even for seasoned experts).
Feel free to add inheritance tax-related queries below and I will do my best to address them. Please do NOT ask how much Spanish Inheritance Tax you stand to pay as the answer is not straightforward and often requires an elaborate study which escapes the purpose of this forum.
What is Spanish Inheritance Tax (IHT)?
The full name of this tax in Spanish is ‘Impuesto de Sucesiones y Donaciones’ (you will often see it abbreviated as ‘ISD’). I will simply call it IHT, in line with English terminology, for the sake of this and other articles. This tax actually rules on both inheritance and gift tax. So anyone who inherits an asset in Spain or else is gifted one is personally liable to pay for this tax. This article will focus almost exclusively on the inheritance side to keep it simple and not be lead astray. But it should be noted that the same tax rates listed below apply to both.
Who is Liable for Spanish Inheritance Tax?
Broadly anyone who inherits assets or rights in Spain is liable to pay Spanish Inheritance Tax; regardless if they are resident or non-resident.
• Residents: are liable for IHT under personal obligation (taxpayer’s fiscal residency is in Spain).
• Non-Residents: are liable for IHT under real obligation (location of assets or rights bequeathed/inherited is in Spain).
What Law Applies?
This is a tricky question. In general, both the state law and the regional law (in Spain) where the deceased had his residence over the previous five years or where the majority of the assets are located apply. So both state law and regional laws apply in tandem.
Where is IHT Filed?
This depends on whether the deceased, or the beneficiaries, are tax resident in Spain.
If both the deceased and beneficiaries are non-residents, IHT needs to be filed in Madrid.
If either the deceased or the beneficiaries are tax resident, IHT can be filed at the local Tax Office. Each of Spain’s 17 autonomous regions has one.
Due to a legal change last year, brought about by a ECJ’s landmark ruling, non-resident Europeans will be taxed by the Autonomous Community tax rate of the place where the higher value property inherited is located.
Deadline to File IHT
The deadline to file and pay Spanish Inheritance Tax (IHT) is six months as from the time of death of the testator.
Fines, Penalties and Surcharges for Late Payment
Payment after the six-month deadline will attract fines, penalties (delay interests) and surcharges (which mount over time).
|Up to 3 months||5%|
|Up to 6 months||10%|
|Up to 12 months||15%|
Surcharges are 5%, 10% and 15% if paid in the next 3, 6 and 12 months as from the six-month deadline. If you pay after 12 months you have a flat surcharge of 20% plus delay interests which mount exponentially. Additionally there are fines for not submitting the right amounts inherited (under-declaring).
Extension to File IHT
You can request a one-time extension, within the first five months, for a further six months. So in total, you would have 12 months as from the death of the testator to file and pay inheritance tax.
You can also request to pay the tax in instalments.
Does Drawing up a Spanish Will reduce Heir’s Inheritance Tax Burden?
I am unsure where the rumor mill originated but I repeat for the avoidance of doubt that making a Spanish will means not one iota to the amount of inheritance tax payable, nada.
That said, making a Spanish will is highly advisable and I repeat this advice throughout this article like a mantra. It is worthwhile because it streamlines the inheritance procedure in Spain and avoids attracting all the following under normal circumstances (by that I mean filing IHT within the six-month deadline) thus saving time, money and hassle:
• Avoids fines for late payment of filing IHT.
• Avoids surcharges for late payment of IHT.
• Avoids delay or penalty interests for late payment of IHT.
• Avoids paying for two sets of legal fees.
• Avoids expensive sworn translations.
• Avoids your heirs wasting unnecessary time following redundant legal procedures which could have easily been avoided altogether.
• Avoids them extra hassle at a time of bereavement.
All the above points are detailed below so I will not go into them just now. Be very wary of any company or individual that advises you not to make a Spanish will. You can read further in my blog post: Non-Resident: Why you need to make a Spanish will – 24th June 2017.
In my professional experience (over a decade) people that give this flawed advice have vested interests of their own in selling you a legal or financial service which may not be above board (i.e. tax evasion which is a criminally pursuable offence in Spain for amounts defrauded in excess of €120,000). There are good reasons why Spanish registered professionals (lawyers, accountants, economists) strongly advocate non-residents to make Spanish wills (exclusive to their Spanish assets).
Frozen Spanish Assets
It is important to note that all Spanish assets belonging to the testator are frozen legally at the time of his death. This means that Spanish bank accounts cannot be accessed (you cannot withdraw funds) nor can you sell his house for example.
In order to release these assets and rights, inheritors must first settle the death duties (file and pay IHT). Only then, as described below, will heirs have unfettered access to bank accounts and be able to sell on the property.
Can you Inherit Debts in Spain?
Yes. On inheriting assets and rights you may also acquire all the debts the deceased had in Spain; in which case you become personally liable with all your assets. Which is why your Spanish lawyer must ensure your liabilities do not outstrip the assets and rights, in which case it is advisable to refuse the inheritance altogether as a heir would be making a loss on accepting it.
Three inheritance scenarios unfold dependent on whether a Spanish will was made, or not, by the deceased.
This is the best, or most advantageous scenario, from a beneficiaries’ point of view as it saves them considerable time, money and hassle. More on the perks of drafting a Spanish will in my article: Non-residents: Six Advantages of Making a Spanish Will.
A. A beneficiary/heir must first gather the following three documents:
B. The Spanish lawyer – Deed of Inheritance Acceptance
Once you have all three documents above, your lawyer in Spain can now draft what is known as a Deed of Inheritance Acceptance (‘Escritura de Aceptación de Herencia’) which is witnessed by a Spanish Notary Public. Getting a lawyer involved from the outstart is essential as you cannot possibly hope to complete this procedure on your own. This deed is basically a formal acceptance that appoints you officially as heir to the testator’s assets in Spain.
With this deed you are now able to file, pay and lodge the death duties.
C. Filing and paying IHT
Anyone who had the good sense of making a Spanish will, ensures his heirs will file IHT on time in Spain thus avoiding fines, penalties and surcharges for late payment. Anyone who did not make a Spanish will (see two sections below) will in all likelihood force his inheritors into paying all three (besides many more expenses detailed below). Bottom line: make a Spanish will if you own assets in Spain, you will save your heirs much time, money and hassle.
As from the time of signing the Deed of Inheritance Acceptance you have 30 working days to file and pay inheritance tax (tax model 650). Depending on which region in Spain the assets are located, non-residents now benefit from lenient regional tax allowances besides state allowances (see below section on Tax Allowances).
Once IHT has been paid you now have unfettered access to the deceased’s bank accounts (they will request a copy of the Deed of Inheritance Acceptance as well as prove of having settled IHT).
You may now also change the ownership of property at the Land Registry (takes one month plus). Likewise, they will also request a copy of the Deed of Inheritance Acceptance plus a copy of having settled IHT. The change of ownership at the Land Registry enables you to sell on the property (more on this in my article Taxes on Selling Spanish Property).
Be aware that you have now officially become the new owner of the Spanish property and are therefore liable for the following annual Non-Resident Taxes in Spain.
This is a scenario you categorically want to avoid for your heirs at all costs. It entails for your loved ones spending greater time, money and hassle. It has no associated advantage and numerous drawbacks.
The reason being is that Probate, in my experience, will exceed the six-month deadline to file IHT. Moreover it will exceed 12 months. This means that your beneficiaries (the people you name in your will to inherit your assets) will attract penalties and surcharges for late payment from the Spanish Tax Office on top of the Spanish Inheritance Tax which will add greatly to their tax bill. The translation of an English will into Spanish costs more than if the deceased had made a Spanish will in the first place…
But it gets worse, because heirs will also need to follow an expensive legal procedure in England & Wales, Scotland or Ireland that could have been easily avoided had the testator made a Spanish will. This is because a solicitor must be hired in the United Kingdom (or Ireland) to follow probate besides a Spanish lawyer; so you are effectively forcing your heirs to pay for two sets of legal fees when only one was required! I am sure the lawyers involved are indebted to your boundless generosity (and lack of judgement).
As can be gleaned from my explanation, on completing step A below, you will now have to follow exactly the same steps as if the deceased had made a Spanish will in the first place. The only difference is that you have added a redundant extra step (A) to your heirs which will prove extremely time-consuming, expensive and will attract penalties and surcharges on the Spanish side for late payment of IHT – not a smart choice any way you look at it.
A. Grant of Probate (England) or Confirmation (Scotland).
You must first obtain what is known as a Grant of Probate (England & Wales, Northern Ireland) or Confirmation (Scotland). You will require the assistance of a UK solicitor to act on your behalf. This document requires to be officially translated into Spanish by a sworn translator (or at a Spanish consulate) and requires the Apostille seal of the Hague Convention affixed for it to be valid in Spain.
B. Same steps as outlined above in section “I” for a Spanish will.
A. If the deceased is English, Welsh or from Ireland (north or south) his heirs must appoint a solicitor, who will need to obtain a Grant of Letters of Administration.
If the deceased is Scottish, his heirs must appoint a Scottish solicitor, who will need to obtain Confirmation in Scotland.
Once you have this document, it must have affixed the Apostille seal of the Hague Convention affixed. This document then needs to be translated into Spanish, by a Spanish consulate or by an official translator (‘traductor jurado’), for it to be valid in Spain.
B. Same steps as outlined above in section “I” for a Spanish will.
The following points provide an overview on how much inheritance tax you stand to pay.
Giftees and inheritors are grouped into four categories for tax purposes. Depending on the relationship with the deceased, allowances are conceded. As a general rule, the closer the kinship, the more generous the allowance.
Group I: Natural and adopted children under 21.
Group II: Natural and adopted children over 21, spouse, registered civil partnerships, parents, adoptive parents, grandparents and great-grandparents.
Group III: Relatives in second and third degree: in-laws, brothers/sisters (siblings), nephews/nieces, aunts and uncles.
Group IV: Relatives in fourth degree, or without kinship: a friend, common law partners, mistress.
Tax Allowances (National & Regional)
Please follow this link to the second part of my article on Spanish Inheritance Tax dealing specifically with tax allowances:
Not everyone is interested in this level of technical detail, so to keep this article short and snappy it makes sense to remove the content from this article and post it in a separate article. Tax allowances are hands down the key to paying little to no Spanish Inheritance Tax for the majority of beneficiaries (including European non-residents).
National Tax Rate
Once we have deducted the above tax allowances, national and regional, which reduce the taxable base we then apply the corresponding tax rate. Bear in mind the following is the national tax rate. If an Autonomous Community in Spain has exercised its competence over the matter they will have their own tax scale which will differ slightly from the one shown below. The tax rate follows a sliding scale; the more you inherit, the more you stand to pay.
|Up to amount (in Euros)||Tax rate (%)|
The above applicable tax rate must then be multiplied by a multiplicand depending on which group a beneficiary is classified in as well as his pre-existing net wealth (in Spain).
|Pre-existing Net Wealth in Spain
|Groups I&II||Group III||Group IV|
|0 up to 402,678.11||1.0000||1.5882||2.0000|
|402,678.11 up to 2,007,380.43||1.0500||1.6676||2.1000|
|2,007,380.43 up to 4,020,770.98||1.1000||1.7471||2.2000|
What beneficiaries are likely the worst off with Spanish Inheritance Tax (IHT)?
Beneficiaries included in one or more of the following categories below will likely be landed with a hefty IHT tax bill:
• Beneficiaries classified in Groups III & IV for IHT purposes (distant relatives or else with no family ties i.e. friends, mistress, common law partners).
• Large estate inherited. It is difficult to give a precise number as it is in relation with multiple factors.
• Pre-existing net wealth in Spain of the inheritor is large (see multiplicand table above for the minutiae). The worst-case scenario is an inheritor classified in Group IV who already has a pre-existing net wealth in Spain of over €4,020,770.98 (over £3,000,000) and who inherits over €797,555. In such a case, the inheritor would be applied an extreme tax rate of 81.6% (34%*2.4). This is clearly a problem that only affects someone who was already a multimillionaire before inheriting; not exactly a problem that affects us all (unfortunately!).
• The assets or rights inherited are located in what I label as a ‘tier 2’ region for IHT purposes; meaning the regional exemptions are negligible or non-existent.
• Aged between 21 and 65 years old (because multiple lavish exemptions would not apply to that age group).
• Beneficiaries are non-resident in the EU or EEA (this is because lenient regional tax allowances do not apply to those resident outside the European Union or European Economic Area).
If you plan to leave an estate in Spain to your loved ones, and your appointed beneficiaries qualify for a combination of one or more of the above then you (NOT the beneficiary!) should consider contacting a lawyer to do some serious estate planning to mitigate their inheritance tax exposure – they will be forever grateful.
Double Taxation Treaty and Inheritance Tax Relief
Absurdly neither the United Kingdom nor Spain have included this matter in article two of their double taxation treaty when it affects thousands of British citizens every year. British nationals alone account for almost 800,000 residents in Spain (source: BBC). Spain is the second most popular destination worldwide for British to settle in after Australia (minus the white sharks).
For some bizarre reason (only privy to politicians) Spain has only signed such a treaty with the following three countries: France, Greece and Sweden.
Which indeed makes perfect sense because – as we all know – Spanish costas are crawling with Greek, French and Swedish nationals, not. I’ll leave that bullet for politicians to dodge.
This translates in practice into having to pay for inheritance tax both in the UK and Spain. My article only covers the Spanish side of succession.
Dispelling Spanish Inheritance Tax Myths
Over the last eight years a few rogue companies have been set up with the sole purpose of putting the fear of God into British to entice them to incorporate corporate structures on top of the Spanish real estate or else buy into obscure equity release schemes to avoid Spain’s IHT (the latter led to hundreds of senior citizens losing their homes to these cunning predators). Truth is most people didn’t even need them in the first place. On average inheritors pay 15% on Spanish Inheritance Tax, a far cry from what’s been shouted from the rooftops.
For a full comprehensive list of IHT-related tax myths peddled by unscrupulous non-regulated outfits or IFAs (Independent Financial Advisors) with a vested interest to coax fellow British into incorporating expensive (and often unnecessary) corporate structures, or else set up devious equity release schemes, to elude Spanish Inheritance Tax please read my article Dispelling Spanish Inheritance Tax Myths which debunks them.
Before you hire an IFA in Spain make sure it is registered by the CNMV (Spain’s equivalent to the UK’s Financial Conduct Authority; what used to be the FSA). Just follow the link I provide and you can find out if they are registered in English. Regulated IFAs have mandatory professional indemnity cover. If the IFA is not registered at the CNMV, steer well clear from them.
Some of my all-time favourite IHT sales pitch poppycock:
• “Spanish Inheritance Tax legal fees can be at least 40 to 50%”.
• “Your heirs will be hit by a 40% plus Inheritance Tax Bill.”
• “Heirs will be forced to sell the property in Spain (to pay off Spain’s extreme inheritance tax).”
• “The financial debt of your heirs is maybe as much as 50% of the value of your property.”
• “Want to avoid Spanish Inheritance Tax extreme 82% tax rate?”
• “If you incorporate a UK Limited Company and place the Spanish real estate inside you will be 100% shielded against Spain’s ISD/IHT. After death, only the shares are reorganised, the company owns the asset, and so it doesn’t change hands. This falls outside Spanish Inheritance Tax.”
• Non-residents should make two wills; one in their home country ruling on their national assets and a second Spanish will which will rule exclusively on their Spanish estate. Making a Spanish will has a number of advantages which saves your heirs time, money and hassle at a time of bereavement (for a full list of perks please read my in-depth article: Seven Advantages of Making a Spanish will).
• Preparing a Spanish will does NOT avoid nor reduce heirs paying Spanish Inheritance Tax; this is a widespread misconception that should be cast away. It does however significantly reduce the overall succession expenditure burden for heirs, as it avoids attracting: penalties, fines, surcharges, paying for two sets of legal fees, paying for unnecessary sworn translations as well as streamlining the whole procedure, as explained above.
• The Statutory limitation on IHT in Spain is 4 years, six months and one day (sic). It is not four years as many people mistakenly post on internet.
• From the moment of death, heirs have a maximum of 6 months to pay the death duties. You may however request a one-time extension of a further 6 months, in writing, within the first five months. So the total deadline to file and pay IHT would be 12 months. If you file IHT after the above deadline you will incur in penalties and/or surcharges that add up considerably to your tax bill. Those who do not make a Spanish will force their beneficiaries to pay additional fines, penalties and surcharges, increasing their tax bill, which could have been easily avoided with some careful tax planning (i.e. on making a Spanish will). You can request to pay IHT in instalments.
• Residents and non-residents are liable to pay Spanish Inheritance Tax.
• There is no blanket exemption between husband and wife, or spouses.
• Unlike the UK, where it is the estate that is taxed, in Spain it is the appointed beneficiary who is liable to pay and settle IHT.
• Until the death duties are settled, all Spanish assets belonging to the deceased will be ‘frozen’ i.e. money cannot be withdrawn from bank accounts, houses or other assets cannot be sold on (as they officially still belong to the deceased). Heirs cannot bank on the Spanish estate itself to foot the tax bill – won’t happen.
• Any document signed by a foreign public official, needs the Apostille of the Hague Convention of 1961 affixed before it is valid in Spain.
• Any document written in English (or any other language) needs to be translated by a sworn translator into Spanish before it is valid in Spain.
Ideally non-residents should make two wills; one in their home country ruling on their national assets and a second Spanish will which will rule exclusively on their Spanish estate. As explained above, preparing a Spanish will – exclusive to your Spanish assets – will save your heirs considerable time, money and hassle at a time of bereavement.
Spanish wills can be drawn up in Spain (Notary Public) or else at a Spanish consulate in the United Kingdom. A Spanish lawyer can assist you making one, double-column, in English and Spanish. Make sure your Spanish will is fully compliant with the new European Regulation 650/2012 if you have an old Spanish will. More on this in my article: Spanish Wills and Probate Law In Light Of European Regulation 650/2012.
I stress that all actions to mitigate IHT exposure must be carried out in life by the person who will die and leave assets and/or rights to his heirs. The ones who will pay IHT are the heirs, as they are personally liable, NOT the person who dies nor his estate (as in the UK). Beneficiaries can do next to nothing to mitigate their tax bill; it must be the one leaving the assets who must do the brunt of the work to reduce his heir’s tax bill. And this may require planning ahead.
Appointed heirs or beneficiaries must retain a Spanish lawyer to act on their behalf. This is not a legal procedure one can realistically attempt to achieve on his own.
For large estates, I recommend tax planning is carried out well in advance (even before buying a property in Spain) to significantly mitigate your tax bill. I only advise corporate structures, for tax mitigation purposes, on amounts on or above €600,000 (£500,000) threshold as company incorporation and running expenses may be high even negating any potential fiscal advantage sought. In any case these require a case-by-case approach as there are no one-size-fits-all solutions.
Inheritance tax planning in Spain is a complex matter, so please seek legal advice from a qualified lawyer and be suspicious of anyone advocating property ownership through corporate structures is “always beneficial” – not the case and in fact may be even be counterproductive and a complete waste of money. Be wary of foreign non-regulated companies selling one-trick ponies to circumvent Spanish Inheritance Tax offering bespoke “100% protection” against it.
If you fear Spain’s Inheritance Tax (IHT/ISD) you should first ask for an estimation from a law firm before you do anything rash such as setting up a Spanish company or a UK Limited Company to place it on top of the Spanish real estate. You may be (pleasantly) surprised to learn how little you have to pay given the rampant scaremongering going on. Inheritance tax varies widely within Spain’s seventeen Autonomous regions (in some it’s not even taxed!). Truth is that corporate structures are neither needed nor recommended for the vast majority of people.
“In this world nothing can be said to be certain, except death and taxes” – Benjamin Franklin.
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