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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche.
www.costaluzlawyers.es

Legal tip 461. Spanish houses go to London
25 February 2011

London. April. Our  Secretary of Development is making first stop of his " raod show" to sell the excessof residential houses in Spain. He is talking to institutions, media.... 

We would suggest that before landing in London, he has a chat with the Bank of Spain governor and make sure Banks are going to be honouring Bank Guarantees and other related liabilities in a more expeditous way. It will also be necessary to have a coffee with the President of Lawyers Council in Spain so those lawyers who defaulted on obtaining Bank Guarantees for their clients when these were placing amounts on account for off plan purchases are also called to discipline.

We are in a sociecty who is fearful of talking about discipline and punishment and by doing so we make a big damage to ourselves. It is just a matter of knowing human nature: we just learn, on many occassions, through those two. For the sake of healthier societies, they need to be present within every economic field and proffession.

If he does not bring these commitments to discipline to London, we are afraid he will not recover the trust he is seeking for our beloved Spain.

A conversation with Keith Rule, leader of the Bank Guarantees in Spain petition will also help, no doubt. He is the voice of so many british people who placed off-plan deposits in Spain.

Anyhow, wish you a great weekend!

 

 Zahara de los Atunes, Cadiz, Costa de la Luz, Spain by Asier LLaguno at Flickr.com

 

 

 

 

 

 



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Legal tip 460. Spanish Law in English by the Justice Department
25 February 2011

I was really pleased to find today all these translations on teh web of our Justice Department. Not really that I am suggesting these for a week-read reading!

Cheeers!

Maria

 

 

 



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Legal tip 459. Birth certificate
24 February 2011

Information from the Justice department website  ( English version!)

 

  • Birth Certificate

Birth Certificate

What is it?

The birth certificate is the document issued by the Registrar or acting Registrar of the corresponding Civil Register or Consular Register, which certifies the birth, the date it occurred, as well as the sex and, when appropriate, the time of the birth and the relationship of the registered individual. 

Certificate Types

Several types of birth certificate may be requested. Certificates may be positive or negative:

  1. Positive Certificate:
    • Extract: This is a summary of the information related to the birth, as it appears in the Civil Register. There are different versions:
      • Ordinary: It is issued in Spanish in the autonomous communities in which the only official language is Spanish.
      • International or multilingual: This version is valid in the countries that have ratified the Vienna Convention of 8 September 1976. This certificate is issued in the official language of each of the signatory countries of that convention (Spain, Germany, Austria, Belgium, Bosnia, Croatia, Slovenia, France, Italy, Luxembourg, Macedonia, Netherlands, Portugal, Switzerland, Turkey, Serbia-Montenegro).
      • Bilingual: Whenever an extract certificate is requested in an autonomous community  that has its own official language, the certificate will be issued in Spanish and in the official language of the autonomous community in which it is issued.
    • Literal: This is a literal copy of the registration of the birth, containing all of the data related to the identity of the individual and to the birth itself.
  2. Negative Certificate: This certifies that an individual has not been registered at that Civil Register.

Contents of the certificate

The certificate includes:

  • The Register, indicating the municipality and province of its location; and, in the case of the Consular Registers, the town and country.
  • The identity of the registered individual, with the data that appears in the registration.
  • The page and book of the entry, or the corresponding page and file.
  • The date, name and signature of the certifying Registrar, Acting Registrar or Secretary, and the office seal.

Who can request it?/present

Legitimate interest to receive information on the entries in the Civil Registers or Consular Registers is presumed to be held by the individual who requests the certificate. However, no information will be provided in the following cases without special authorisation:

  • Adoption (except for entries made pursuant to the Department of Registers and Notaries Instruction dated 15 February 1999) or unknown kinship, or details that reveal said circumstances, and the change of a Foundling surname or other similar or inappropriate ones.
  • Sex change: Authorisation in these cases is granted by the Judge responsible, and only to those who certify legitimate interest and a well-founded reason for requesting it. The certificate indicates the name of the individual making the request, the reasons for issuing it and the express authorisation of the Registrar or Acting Registrar, who will personally issue the certificate from the Register directly under his or her control.
  • Surname changes authorised in cases of gender violence, or necessitated by the urgency of the situation.

Delivery periods

How long you have to wait to receive the certificate depends on how you have chosen to receive it. If you have chosen to receive the certificate by post, the period between the request and reception of the certificate is approximately 15 days.

When applicants choose to retrieve the certifications in person, the Civil Registry Office will notify the date from which they may do so.

This period will be interrupted when the Civil Register requires additional or clarified information on the application, until they have been provided by the requester, and likewise, when technical difficulties make it impossible to receive the requests properly.

160

 

How to request it/present

 

"Golf Club La Alcaidesa", by Luis López-Cortijo

 
 
 
 
 
 
 
 
 
 
 


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Management tip 38. Two websites for mumpreneurs
23 February 2011

When I was about to give birth to my first one I read on maternal intelligence and since then I have become increasingly aware that abilities to manage a team and a project improve significantly after and while going through pregnancy, childbirth and education of children.

Specially the so-very-ultra-direct  contact with relentless needs and features of human nature that having a baby brings to your experience as a person is unvaluable when working with and for people.

This is what the people of my previous post did not have the luck to experience. I know now why men cannot rightly value what a women brings to management.

Find below two sites form mumpreneurs ( mums+enterpreneurs)

http://www.familyfriendlyworking.co.uk/

http://www.mumpreneuruk.com/

Cheers

 

 

 



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Management tip 37. We will never be competitive till...
23 February 2011

We see more women in this picture, younger people, more united look.

They all look separated, standing one "near" to the other, but not at once...( Steven Schaffer, my beloved economist just pointed out)

I am frustrated with the managerial class of my country!

Las grandes empresas se conjuran para recuperar el crédito de España

Picture of the yesterday inaugurated Spanish " Council for Enterpreneurial competitiviness"

Maria



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Legal tip 458. Personal access to civil justice in Spain
22 February 2011

A guide by our General Council of Judicial Power for personal access to civil justice in Spain. English version!

http://www.poderjudicial.es/eversuite/GetDoc?DBName=dPortal&UniqueKeyValue=154292&Download=false&ShowPath=false 

"Golf Club La Alcaidesa", by Luis López-Cortijo

 



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Legal tip 457. Judges in Spain for fair application of Law
22 February 2011

Judges for Democracy ( Jueces por la Democracia) (JPD) and the Progressive Union of Prosecutors (UPF)call for the implementation of exemptions for mortgage debts after repossessions  "to adapt application of Law to the social reality that we have today and that is different from three years ago." 

JPD and UPF warn that "the risk of spreading social exclusion is serious," given that household debt is causing a "torn of the social fabric, which is the main source of consume and saving ". 


"Protecting families is essential for a rapid recovery from the crisis and, therefore, we want to take our part when it comes to interpreting the law in the most favorable possible to the social reality in which we live. Always within legal margins, “asserted Calvo.

 
Meanwhile, she pointed out that beyond the legal margins, both associations request the State to - "regulate the possibility that delivery of the mortgaged house to the financial institution closes the debt”, taking into account that the current crisis, which is causing many defaults by households "have not been caused by citizens, but they are who are suffering the most out of it." 

Both entities claim the Central Executive to amend the mortgage enforcement process “preventing properties to be auctioned for a value well below its valuation, thus impeding the possibility for financial institutions to acquire houses for half of the sale value. At the same time, they consider that "ultimately, the award should be produced to the creditor for the value of the debt." 


They also propose to "moderate or stop the accrual of interest on arrears for a period of adjustment of the periodic payments".


These all above "does not mean they're cheering for the judges to make an overflow to the existing legal framework, but for them to remain at their limits with an interpretation of the rules, according to the current social reality." 

Meanwhile, they have stressed that the legislative branch and the Congress of Deputies must courageously face the regulatory changes necessary to come out of the crisis the strongest we can” 

 

 

The spokesman of the Progressist Union of Prosecutors and delegate of the Anti-Corruption Prosecutor of Catalonia, Emilio Sanchez, has also stated that judges "will never go beyond the law, but we can apply it through the principle of equity. Therefore, "where the law is not enough, we suggest possible avenues for government to change legislation." 

 

 

 

 As a very basic added note by us, we want to add that our Civil Code, in his preliminary title when describing on how Law needs to be applied in Spain says:

 


Artículo 3.

 

 

1. Las normas se interpretarán según el sentido propio de sus palabras, en relación con el contexto, los antecedentes históricos y legislativos, y la realidad social del tiempo en que han de ser aplicadas, atendiendo fundamentalmente al espíritu y finalidad de aquéllas.

2. La equidad habrá de ponderarse en la aplicación de las normas, si bien las resoluciones de los Tribunales sólo podrán descansar de manera exclusiva en ella cuando la Ley expresamente lo permita.

Article 3.

1. Laws will be interpreted according to own meaning of their  words, related to the context, history and legislative precedents and the social reality of time when they need to be applied, paying main attention to the spirit and purpose of those.

2. Equity will have to be pondered when applying Laws, even though Court Decissions can just be based on that when Law expressly allow it.

Conil by Shehani at Flickr.com

 



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Legal tip 456. Farm rental contract in Spain
20 February 2011

 The legal concept of farming rental is in the article .1 of  Law 49/2003 of November 26, 2003 which provides that "leases are considered rural when one or more farms or parts of them are assigned for agricultural use, livestock or  forestry in exchange of a price or rent. "

Three elements make up this kind of contract:

- The temporary cession of one or more farms or parts of them.

- The agricultural, livestock or forestry use of such properties.

- The transfer occurs for a fee or rent.

a) The temporary transfer of rural property.

The contract is the rural plot, whose characterization is given by the destination for agricultural use, livestock or forestry and because of its rural nature.

The assignment must be temporary, as this is one of the features of this type of contracts.

b) Transfer to agricultural use.

RAMOS DE ARMAS, a legal author,  says for these purposes that "the purposed use of the estate is a structuring element of the contract. Being a contract which grants the use and enjoyment of an estate, the really substantive is not the farm itself, but the purposed use that has, to the extent you could say that the letting of rural properties is intended not the property but their use in agriculture, livestock and forestry. "

c) Existence of income or price.

The need for this requirement is elementary given the onerous character of the contract 

Lemons by Asleeponasunbeam at Flickr.com



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Legal tip 455. Spain for lower IHT to foreigners
18 February 2011

  
The European Commission is requesting Spain no to apply higher IHT to non-residents foreigners and foreign-based assets. Brussels believes that these provisions are incompatible with the free movement of workers and capital guaranteed by the Treaty. 

The request takes the form of a “reasoned opinion”. 
If the Spanish authorities do not give a satisfactory reply within two months, the case could end up before the Court of Justice in Luxembourg. 

The EU executive claims that in Spain, both the State and the regions (Comunidades Autónomas) legislate IHT. In practice, regional  IHT laws are much softer than national ones.  National Law applies when the recipients live abroad or the inherited/ gifted asset is located outside Spain. 
As a result, taxpayers have to pay more taxes than if they lived in Spain or if they were to donate property in that country," the Commission reports.

Tarifa Dunes by Chodaboy at Flickr.com

 



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Legal tip 454. A funny legal post on restaurants menus
17 February 2011

 Question:  Is it obligatory for a bar in Manilva ( Malaga)  to have the menus in Spanish?

 Answer:  These matters are regulated by every region.

In Andalucia ,DECRETO 198/1987, de 26 de agosto, por el que se establecen determinadas medidas en defensa de consumidores y usuarios para los establecimientos de restauración y similares. sets in provision 4 that:

1. Las cartas de comidas y bebidas, las listas de precios y los otros medios de publicidad estarán redactados en castellano en todos los establecimientos y además en francés e inglés en los restaurantes catalogados de lujo, primera y segunda y en las cafeterías catalogadas de especiales y de primera.

1. Menus of food and drinks, list of prices and other publicity means need to be written in spanish in every establishment and also in french and english in those restaurantes ranked as luxury, first and second class and coffee shops classed as specials and first class)

So start learning: 

Source: El mundo de las tapas website

You can click on names of tapas below adn will find the recipé!!


Alcachofas con asadillo Anónimo
Albóndigas de atún Rafael Lechuga Butron, España
Berenjenas de Almagro Anónimo
Boquerones en Vinagre Anónimo
Buñuelos de Bacalao Luis, España
Buñuelos de Chorizo Anónimo
Calamares fritos Anónimo
Caldereta de bacalao Anónimo
Callos a la Madrileña Anónimo
Canutillos de Cecina Luz Villalobos, España
Champiñones al ajillo Yubelly Rincón, España
Crema de patata al Azafran
con ventresca de Atun
Jose Manuel Gonzalez, Sevilla, España
Croquetas de Jamon Anónimo
Dados de butifarra con “all i oli” Miquel, España
Envueltos de panceta Angel, Argentina
Escabeche de Gambas Roberto Vera
Espárragos de Marisco Pedro, España
Fritada Jose Antonio, Ciudad Real, España
Frutas y quesos Beatriz, España
Garbanzos al Ajillo con Chorizo
y Aceite de Perejil
Jose Manuel Gonzalez, Sevilla, España
Gazpacho Anónimo
Higos con Jamón Mimi, España
Huevos en salsa de anchoas Rita Alcalde, Inglaterra
Huevos rellenos en Argentina Rolando, Argentina
Huevos rellenos en Nueva Zelanda Joaquim Gines, Nueva Zelanda
Montaditos de roquefort a la sidra Yolanda Oriol Garin, España
Montado de pimientos Borja Roig, España
Montado de huevos de Codorniz Inma Martínez Alario, España
Morcilla de Arroz a la plancha con Piquillos
y polvo de Kikos
Jose Manuel Gonzalez, Sevilla, España
Morro de cerdo frito MIquel, España
Paella Anónimo
Pan con Tomate, Ajo y Jamon Anónimo
Pan de brioché crocante, ceviche y quesillo Cristian Medrano, Argentina
Pastel de Carne Vicente Jose Soler Juan, España
Patatas Bravas Anónimo
Patatas de Casa Carmen Mª, España
Patatas Rellenas Judith Martínez, España
Patatas riojanas Ruben del Villar Garcia, Tenerife, España
Pintxo de Pisto de Ibericos con Queso Brie David, España
Pollo a la naranja Pilar, España
Pollo relleno de jamón Patricia Diaz
Quiche de rocquefort Ana, España
Rebaná Cortijera Paloma, España
Riñones de cordero al jerez Raúl, España
Rollitos de Requesón y Jamón cocido Elf, Italia
Salmorejo Cordobés Carmen Mª, España
Sandalia de Caravaca José Manuel Soria, España
Solomillo caramelizado con queso de cabra Eduardo Troya, España
Sombrero de Setas Carmen Mª, España
Torreznos Anónimo
Tortilla de Patatas Anónimo
Tostada de aguacate Mónica, España
Tostada de huevo de codorniz Maria Jesus Alemán, España
Tostada de membrillo y queso Zaira, España

 Maria


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Legal tip 453. Financial system in Courts
17 February 2011

Practically the entire financial sector is under the Judge of the Commercial Court number 11 of Madrid.

This Judge has admitted into procedure the largest class-action lawsuit filed against 45 banks in Spain and Spanish savings banks on the controversial  'floor clauses”, which prevented many Spanish mortgages to benefit from the sharp drop in interest rates experienced since late 2008.

Anyone interested can join this action at least till the end of March. 

A report by Bank of Spain prepared at the request of the Senate in May 2010 estimated that in Spain there are 3.8 million people with this type of clause in their mortgage contracts. 

The floor clauses are those which establish that there is a certain level at which the interest rate is not revised downwards. This level is often placed above 3%, but varies greatly from one entity to another. Can reach up to 5%. 


Most of the Spanish Banks and Saving Banks are included in this action: BBVA, Banco Popular, Banco de Galicia, Banco Guipuzcoano, Banco Pastor, Banco Basque Country and Galicia Bank, as well as CAI, Caixa Galicia, Caja Castilla La Mancha, Caixa Girona, Caixa Nova, Caixa Manresa, Caixa Ontinyent, Caixa Penedes, Caixa Sabadell, Caixa Rural de Balears, Caixa Tarragona, Box Circle, Caja de Ahorros de Catalunya, Caja Extremadura, Caja Badajoz, Caja Duero, Caja Spain, Caja Canarias, Caja Granada, Caja Insular de Ahorros de Canarias, Multicaja, Caja Rural de Asturias , Caja Rural de Cuenca, Caja Rural de Navarra, Caja Rural de Granada, Caja Rural del Sur, Caja Segovia, Caja Sol, Caja Sur, Cajalon, Cajamar Ipar Kutxa, Unicaja, Caixa Caixa de destalvis Unio Manlleu, Sabadell Terrassa i , destalvis Caixa de Catalunya, Manresa and Tarragona i Caja de Arquitectos. 

 The association has announced it will extend its application to other entities such as Santander and La Caixa.

 
They call for the annulment of said clauses due to gross disproportion between the floors and ceilings on interest rates of fixed mortgage contracts. 

There is a fairly recent precedent in this regard. In October 2010 the Commercial Court number 2 in Seville declared abusive  floor clauses in mortgages contracts of  BBVA, Caja de Ahorros de Galicia, Caja Rural Cajamar and Cajamar, who are forced to eliminate and refrain from use in subsequent contracts. 

Bank of Spain backs the financial institutions by defending floor clauses as  part of the loan, from the legal point of view, so that "if included in clauses worded clearly and comprehensibly, freely agreed, need to be considered legal and will not fit into the catalog of abusive and that there is symmetry  between floors and ceilings

Ronda by Natalie Maynor at Flickr.com 

 



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Legal tip 452. Uk-Spain probate cases VI
16 February 2011

Have been sick at home with a stomcah virus for a couple of days, yes, we lawyers get sick too :)

Back to work with full strength to keep fighting Banks and associated bugs... for the benefit of society :). but also answering fun questions on IHT.

Today´s one:

Question: My recently deceased uncle's villa goes to my mother and uncle (no will). Its tax valuation is 856000 for 2011. He died in October 2010. Mortgage remaining is of 148000. We estimate 240000 approx IHT? Is there a charge to extend IHT payment? Lawyer does not seem to be able to give us figure as apparently there is local tax still to be paid on behalf of my uncle. Do they need NIE number also? If we let it go to repossession would they receive anything at all if sale was 50% of value and mortgage cleared? We don’t know what to do as it is so much money to find and feel there will be more fees to pay going forward. Thanks so much.

Answer:

 

 

 

I take that probate has been made according to Inheritance Law of your uncle´s nationality and that the naming of your mother and your uncle is correct.

 

 

 

 

 

I am answering some of your questions below:

 

 

 

 

 

1. - Deadline for the payment of the corresponding tax is of 6 months since death. So in your case you have till April 2011. You can ask for a 6 month extension with delay interests attached. The Treasure department has four years to request payment from you after which the tax is expired.

 

 

 

 

 

2. - A gross calculation of the payable tax is:

 

 

 

 

 

Taxable amount is value less mortgage: 708.000 €. Mom/Uncle as heirs will inherit half of these each:  354.000 € each.

 

 

 

 

 

Applying Andalucía rules, they can have a reduction on the taxable amount of 7993, 46 €.

 

 

 

 

 

Having 346.006,54 € as taxable Amount Andalucía charges each one of the heirs an amount of 106.724,63 €

 

 

 

 

 

3. - The Local tax cannot be other one than IBI tax, whose value is easy to find out in the corresponding department of the Local Council ( Contribución Urbana)

 

 

 

 

 

4. - NIE is necessary

 

 

 

 

 

5. - Yes, they are holders of rights of any remaining amount after repossession. You need to communicate to the Bank heirs and address of heirs to be noticed if repossession started.

 

 

 

 

 

Huge charges indeed. You can ask this or other Bank for financing of the IHT amount against the own house. It would be a shame if the Bank took the property that is almost paid out. I would advise you to look for financiation for this.

 

 

 

Why do not start an association for prople like you so under certain criteria you can get financiation help from a good Bank with some sharing of rights with them.  I can ask a good Bank around if they were up for creating this product for you. A kind of inverse mortgage for the payment of the Inheritance taxes.

 

Ronda by Werkmens at Flickr.com



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Legal tip 451. Uk-Spain probate cases V
11 February 2011

Question- Thanks for a very informative blog, Maria. Since you asked for more questions...

I am newly widowed. I am British, resident in Spain for 16 years, my husband was half Spanish & half British. He came to Spain as British then took out Spanish nationality. We made a will here, leaving everything to each other & the required proportion to our two children. It is being dealt with by the notario at the moment. My husband & I owned our home jointly & lived in it as our family home for 16 years. My question, if you can answer, is what might we expect in terms of taxation & fees?

Thanks so much.

Answer- 

We need to obtain the market value of all goods and rights of the inheritance.We will be adding a 3% as household value and adding those goods which were owned by your husband during a year before his death ( this added goods can be removed from the inherited mass if there is a proof of ownership by other person)

Gross inhrited mass is the sum of goods and rights of the inheritance + household value (3%) + added goods.
Charges, debts and deductible expenses are subtracted:  charges and debts are not commun, the most frequent deduction is of the expenses of last illness, funeral and burial paid by the heirs.

Gross mass less charges, debts and expenses make the net mass of the inheritance

In your case, I suppose your husband left 2/3 of the inheritance to your children plus bare owmership of the other third. Leaving to you the usufruct of this one third. If there were Life Insurances, the amounts received by heirs and yourself need to be added here. This make the taxable amount of each one of you.

I would need to exactly know the will of your husband and all the goods that make part of the inheritance mass, but intially, please have some guidande below:

There are reductions on the taxable amount out of family relationship: 

* spouses and descendants under 21 years/old: 15956,87 €
* Handicapped: 47858,59 € or 150.253,03 depending on handicap level
* Life insurances: for certan relatives and to a limit of 9159,49 €
* Permanent home of the deceased ( 95% for certain relatives with a limit of 122.606,47 €) In Andalucia this reduction is increased till 99%.
* Liquidable amount: Taxable amount less reductions

Whole Tax rate ( I am assuming here the house is in Andalucia):

Liquidable            Tax fee                       Rest liquidable          Percentage
amount                                                     amount up to

                                                                              

0,00                         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                               7.987,45                 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                            en adelante             34,00



Multiplier coefficient: This tax takes into account the preexisten patrimony of the heir. This coefficients go from 1,0000 to 2,4000.
Final Tax rate: Whole tax rate multiplied by the coefficient. .
Deductions and bonus: Nationally there is a deduction due to international double taxation and a bonus in Ceuta and Melilla 

Please feel free to email us if you want an exact calculation of IHT to be paid by everyone of the heirs.  

Abanicos de Sevilla, by Werkmens at Flickr.com




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Legal tip 450. Uk-Spain Probate cases IV
10 February 2011

Q- Thank you so much Maria for your tips on probate. I still have a question though. My mother, British national, residency in Spain, lived and died recently in Spain. She has a non-moveable asset (house) only in Spain but moveable assets in Uk (bank account) and Spain (bank account) but also Austria (bank account). My question refers to the Austrian bank account: do we apply for Probate in UK or is Spain the competent authority in order to release money in the Austrian bank account? It would be really helpful to me if you could answer my question. Sorry I don't speak Spanish, except - muchas, muchas Gracias.

A-Both Spanish and Asustrian inheritance law follow the rule of nationality.

Even when your mother had residency in Spain and a real estate here, even when the UK Law ( your mother´s nationality) forwards Inheritance Law on real estates to law of territory of the real estate, the Spanish Supreme Court following the principle of international solutions harmony, and considering the restriction that Spanish law and the forced heirs system would impose on your mother´s inheritance will deffend the application of UK Law to the whole inheritance, Austrian Bank account included.

Inheritance Tax on the acquisition of the Spanish property by whoever are the heirs is subject to Spanish Inheritance Law.

I do hope this clarifies you!

More questions?

Tarifa by Janine Owen at Flickr.com



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Legal tip 449. Important points on the European Enforcement Order: not to panick!
09 February 2011

 

See full information about the European Eforcement  for UNCONTESTED claims here

Important aspects to remark:

1) It is not for all claims but just for those uncontested. The contested ones will have to follow the traditional procedures for execution of Court decissions abroad.

2) The European Regulation lays down minimum standards with regard to the service of documents (the document instituting proceedings and, where applicable, the summons to a court hearing) to ensure that the rights of the defence are respected.

3) The competent court in the enforcing Member State may, subject to certain conditions, refuse to enforce a judgment if it is irreconcilable with an earlier judgment given in any Member State or in a third country. In certain cases, it can also stay or limit enforcement.

Tarifa Harbour ( Africa mountains visible) by Kirsty Meddings at Flickr.com

 



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Legal tip 448. UK-Spain Probate cases III
09 February 2011

 "Yo soy española, casada con un británico. No tenemos hijos pero nos preocupa irnos a vivir a España para no dejar al que enviude primero en mala situación económica. En el Reino Unido, la casa familiar pasa de un cónyuge al otro sin coste alguno. Nos dicen que en España, no. Si es cierto, es absurdo que el que enviuda tenga que volver a pagar por lo que ya pagó, o que tenga que vender su hogar para cumplir esos deberes impositivos."

The person above posted a comment in our last post on probate, she is asking what happens with marriage couples Spanish woman- UK man and that they live in the UK and are reluctant to move to Spain to avoid inheritance tax when one of them dies.

Lots of clarification needed here. Of course we would need more details for a most accurate appraisal such as:  assets in the UK? domicile in the UK? Anyhow let´s show some tips that may help:

Let´s suppose they move to Spain, take the Spanish residency and she dies first.

Her inheritance will be under the rule of nationality, so Spanish Law will apply. If she left a will which respects the legal portions of legal heirs ( ascendants as they have no children), this will be valid. Their heirs will be taxed worldwide by the Spanish taxman because of residency of the deceasor. There are important reductions to cohabitants in the IHT if the inherited good was the permanent home.

Let´s suppose now that they move to Spain, take the Spanish residency and he ( UK nationality) dies first:

His inheritance will be ruled by UK Law unless the only asset they had was a real estate in Spain. In this case his inheritance will be ruled by Spanish Law and will follow very similar features as his wife´s as described above. If he had assets in the Uk too, Uk Law will apply and therefore there will be no restrictions to limit his freedom to testate. In terms of taxations, his residency in Spain will always drive him to the Spanish taxman for his assets worldwide, with same clarification as above regarding the important reduction on IHT corresponding to the permanent home for cohabitants.

Hope this helps. I am happy to answer more questions if you need

Bolonia beach ( Tarifa, Cadiz, Spain) by Vicox01 at Flickr.com

 



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Legal tip 447. UK-Spain Probate cases II
07 February 2011

 Same case as the previous one when the testator has also assets in the UK.

 

A widow UK national dies in Spain, where he had his residency, leaving a UK will were he named as  heir a good  friend of him. He has three children. His assetes were several Bank accounts in the UK and Spain and a property in Spain. He left no will in Spain.

 

Is this person, because being a Spanish resident, under Spanish Inheritance Law? Can the children claim for a portion of the inheritance? 

The rule for application of Inheritance Law in Spain is the rule of nationality ( provision 9.8 of the Spanish Civil Code) So initially, it might seem that inheritance Law applicable here is UK Inheritance Law which does not impose limits to the free will when testating.

 

UK inheritance Law applies:

1.-In relation to moveable assets the law of the country of domicile of the deceased should be applied.

2.-In relation to immoveable property (Land or buildings) it states that the law of the country where the property is located should apply.

 


Despite this person having residency in Spain, he might have  maintained his domicile in the UK ( as domicile of origin). So by vitrtue of the unity of probate, Uk Law will decide on Spanish assets too and the UK will will be perfectly valid for UK and Spanish assets.

UK Probate documents will enter the Spanish Registry in order to change ownership rights once the probate is finished.Of course IHT related to the Spanish house will have to be paid in Spain.

In this case, a Spanish independent will shoud have been convenient in order to speed up the process regarding the Spanish assets, specially as the Bank accounts are frozen till the end of the procedure.
 
 
Cádiz, Andalucía, by Christopher Dayer at Flickr.com
 
 
 

 

 



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Legal tip 446. UK-Spain Probate cases I
03 February 2011

A widow UK national dies in Spain, where he had his residency, leaving a UK will were he named as  heir a good  friend of him. He has three children. His only asset was a property in Spain. He left no will in Spain.

Is this person under Spanish Inheritance Law? Can the children claim for a portion of the inheritance? 

 

The rule for application of Inheritance Law in Spain is the rule of nationality ( provision 9.8 of the Spanish Civil Code) So initially, it might seem that inheritance Law applicable here is UK Inheritance Law which does not impose limits to the free will when testating.

The problem is that Law of England and Wales sends back the regulation of this inheritance to Spanish Law because his only asset was a estate in Spain:

UK inheritance Law applies:

1.-In relation to moveable assets the law of the country of domicile of the deceased should be applied.

2.-In relation to immoveable property (Land or buildings) it states that the law of the country where the property is located should apply.

Even when this person had his residency in Spain, it is possible that he had his domicile in the UK ( as his domicile of origin), but this is irrelevant to the case as he left no asset but the Spanish property.

So once the death is certified in Spain we can obtain information on the existence of a will by consulting the National Registry of Last Wills. We will obtain there a negative certificate so we will have to see if he left a will in the UK.

Once we see the will in the UK,  this can be challenged by the children in respect to the spanish property as under Spanish Law, two thirds of the estate are obligatorily for the legal heirs that in this case are these three children.

What would happen if he also had Bank accounts in Spain and in the UK? We will see this other case tomorrow
 
Cal y geranios by Basilievich at Flickr.com

 

 



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Legal tip 445. Time share rights in Spain. Part V
02 February 2011

Together with desisiting from or cancelling the time share contract, possibilities that are subject to a shorter deadline, there is the possibility, initially sine die ( without deadline) to apply for the nullity of the contract.

In what cases?

 

- When timeshare rights are tranmistted disregarding the imperative Law which regulates them.

- When the transmission of time share rights are made before the scheme is actually constituted

- When there is a lack of veracity on information provided to the buyer. 

The action for the refund of amounts linked to the nullity has a 15 years deadline.

There is numerous precedents in Spanish Courts for the nullity and refund of money if you were sold under the term " propiedad" ( property)
 
 
Pots Spain by *17 at Flickr.com

 



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Legal tip 444. Time share rights in Spain. Part IV
01 February 2011

 Main characteristic of time share rights in Spain are:

- It is a right on ownership right: two or more diffrent people hold rights on same property: the owner and the holder/s of enjoyment rights. 

- It is inmediate, a, in shifts, s it gives to its holder a direct enjoyment of the property.

-It has entrance in the Land Registry which gives to its holder a complete legal safety within the Spanish legal system. Obviously time share rights need to be trasmitted by Notary deeds for its entrance into the Land Registry.

-It can be trasmitted to others either in life or by death. They are part of the property trade.

We will explain tomorrow ow you can revise your current time share rights contract to request, if necessary, an adpatation to legality.



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