My Inheritance Nightmare!

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01 Jun 2011 12:00 AM by Byork Star rating. 11 posts Send private message

I have been living a legal nightmare for more than 10 years. It's hard to describe my problem briefly. Broadstrokes include the following:

Canadian father retired to Spain after our mother passed away (already owned a property in Alicante in his name). He decided to purchase another property in Benidorm that had better facilities (e.g., elevator). Along the way, he met up with a woman who is only a few years older than my eldest brother. Within a year or so, they get engaged and he buys her a condo in Madrid (where she lives and worked). They marry and that becomes considered the matrimonial home even though my father split about six months after the marriage to get away from her adult kids who moved into the new condo. He basically lived on his own in Benidorm with his wife visiting every second weekend. 2.5 years after the wedding, he suffered a fatal heart attack. There was no registered will. In fact, when we arrived from Canada, there was absolutely no paper work of any kind (property deeds, marriage certificate). Less than a week after his death, she moved in her daughter, common law partner and kid into his Benidorm apartment and got rid of most of his personal stuff.

At the time, we were assured by Spanish relatives that it was no big deal to settle the estate, which I found highly dubious. A cousin who is a non-practising lawyer insisted on representing my brothers and I. We tried being cooperative with the widow but during a first meeting to discuss the estate, she insisted on keeping the Madrid apartment and letting us split up the rest of the assets. At that point we had no idea what the assets even were plus our cousin told her that that was not legal (something about the 2/3 ascendents/descendents rule and uso fructo). Our Spanish is not very good so this was all incredibly confusing.

Fast forward some 3 years later, the cousin basically found a notary public to handle the case in Benidorm and did nothing else (he was based in Madrid). The notary public kept giving us lists of documents we needed to produce and assuring us that the process was very straight forward. The widow did nothing at all while we took turns visiting Spain to collect and submit documents including property searches and deeds. Another year passes and we believe that we have everything required to get the "Declaracion de Herederos". The Notary Public who has had this file for 3 years notices that there is a spelling mistake in my fathers 2nd last name. All of a sudden I have to get the death certificate re-issued and re-do the search for his will.

By this point, I went ahead and engaged a Spanish lawyer (a personal friend of a friend) who is an associate with a reputable Madrid legal firm. He has extensive experience as a court appointed arbitrator in inheritance cases. We manage to track down two witnesses willing to go before the notary public and confirm that we were indeed the children of my father. He manages to get all the paperwork done with power of attorney so that the first hurdle is finally cleared. He then proceeds to enter discussions with the widow's lawyer regarding the division of assets and her right to exercise uso fructo.

Five more years go by with widow/lawyer ignoring requests, making different demands, refuting the legal formula, complaining about the assessment of the properties, etc. Meanwhile, she had not even paid the taxes from before my father died on the two properties. We discovered this when we went to check on the Alicante property and found that it was in arrears. We figured the one she lived in would be up to date but when we did finally double check that, it was also in arrears and an embargo had been placed on it. Ditto for "communidad" payments for both properties. Since then, we have been keeping up the taxes and communidad for the Alicante place (we had no info on who to contact for the Madrid condo) until this past year when they sent our lawyer a letter threatening legal action.

My lawyer worked out a deal that my brothers and I all thought was agreeable. It took some months but finally, last December her lawyer said they were agreable to the proposed partition. My brothers gave my lawyer their power of attorney to execute the deal. We were ecstatic. Come February, my lawyer informs me that the widow came back with a counter offer that was completely ludicrous. My brothers refuse to budge beyond not collecting her share of taxes and estate expenses. We originally thought, screw it. Let's go to court. My lawyer informed me that it would probably take another year or two to go through the courts, approximately 40,000 euros in expenses and no guarantee of how the court would assess the assets. As you can imagine, this does not appeal at all.

My brothers think we should just sit on our hands and do nothing. I'm not comfortable with that option but I really don't know what choices we have. It seems that my lawyer explaining that we wanted to go to court made no difference to her. We've also been told that she has the right to choose how the estate gets divided based on the legal formula (she chose to buy out the matrimonial home rather than do uso fructo). She does not want to just sell all the assets and walk away with her %.  I haven't contacted my lawyer in over a month since I really don't know how to instruct him.

Anyway, this has been such a source of stress for SO MANY years that I am ready to tear my hair out.





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02 Jun 2011 12:09 AM by EOS Team Star rating in In Spain of course!. 4015 posts Send private message

EOS Team´s avatar

Wow,  that really does sound like a nightmare and if nothing else should be a massive wake up call to all those who do not have a will in place.

To be honest I have absolutely no idea what you can do.  The court process is Spain is very long and costly and of course, you could lose the case.

I'm sorry I can't offer any advice but I do sincerely hope you find some resolution to this mess very soon.

Justin



_______________________

Schools in Spain Guide | The Expat Files | Learn Spanish | Earn a living in Spain




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02 Jun 2011 12:51 AM by Byork Star rating. 11 posts Send private message

Thanks Justin.

I guess we could just continue a so-called negotiation farce, keep paying the taxes on both properties and the communidad for the vacant one in Alicante.

This woman and two of her adults children have been cited for failure to pay traffic fines and other income/community taxes. Maybe if I'm lucky, she lands in a spot of legal trouble and becomes more amenable to signing off on the settlement.





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02 Jun 2011 10:25 AM by mariadecastro Star rating in Algeciras (Cadiz). 9354 posts Send private message

Legal Questions? Speak to Maria Direct

 Yes, I do agree with Justin that this is an example of how important is to do a will.

Inheritance trials are not difficilt technically though, no more than any other judicial action.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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02 Jun 2011 12:41 PM by Faro Star rating in London. 1139 posts Send private message

This type of problem is very typical of second relationships.

Find yourself a good probate solicitor specialising in both contentious and international matters. I'm guessing if you are posting here you have lost confidence in your current lawyer's ability to resolve this matter?





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02 Jun 2011 12:58 PM by mariadecastro Star rating in Algeciras (Cadiz). 9354 posts Send private message

Legal Questions? Speak to Maria Direct

 More that drfting a simple will in Spain. It is important that the wills in every country are doing in coherency and always according to the Law appliable to the testator´s inheritance issues.

Preventing is much better than cure in these cases. A good preventive work by a good specialist lawyer will save your heirs many headaches, not just regarding taxes but also in order to ease the adjudication of assets.

 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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02 Jun 2011 1:13 PM by Faro Star rating in London. 1139 posts Send private message

But the real problem in these situations is love is blind (for a while at least!)

If someone believes children of first marriage and new spouse will fight then serious consideration needs to be given to any jointly held assets.

Also if there is a possibility of a challenge under Spain's forced inheritance laws then even more planning is required.

But problem is most people will not accept new spouse is a gold dgigger until it's too late.

The problem is similar in divorce cases.

Solution is simple don't get re-married - no jointly held assets - consider if wise to put property in own name.





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02 Jun 2011 6:29 PM by Byork Star rating. 11 posts Send private message

"But problem is most people will not accept new spouse is a gold dgigger until it's too late." This is so very true.

My father tried to assure us that he had no intention of leaving his new spouse anything but his pension. His big plan was to change property deeds in our name. He did so with one small studio apartment but never got around to doing so for the rest of us, especially since he had slowed down considerably after his stroke. I tried to keep an open mind and hoped that the woman was more opportunist than gold digger. (Afterall, she was mostly a caregiver getting free room and board, rental fees from relatives she put in other apartments and a healthy Canadian civil servant pension after his death.)

It became apparant that that was not good enough when she pressured my father to cash in his Registered Retirement Savings and sell some of his properties in order to buy a new one in her name. In the last year of his life, he was annoyed with our lack of cooperation in trying to sell his first Alicante property (problem with him having purchased it while married to my mother). He was also royally pissed off with my brother's refusal to give him back the small studio apartment.

As for our lawyer, I think he is trying hard to resolve this in our best interest. My only concern is that maybe we need him to be more of a pitbull. But then again, my experience in Spain is that taking an aggressive approach often backfires.

If it were clear that the legal formula for the disbursement of assets were inded fixed as stipulated in the dissolution agreement that the widow refused to sign, I would be fine with going to court. Even with high court and legal fees, our share as legitimos would be more or less the same as her ridiculous counter-offer BUT her share would be dramatically reduced (assuming that she would be liable for her share of court expenses).





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02 Jun 2011 11:54 PM by jek Star rating. 249 posts Send private message

jek´s avatar

I think that this is becoming a bit tacky.  When we're told that the father was pissed off with the children who were frustrating his wishes over his properties and assets, I smell greed and think it's time to walk away.  We're getting one side of the story here and there's nothing that anyone on this forum can do to help anyway except offer sympathy.  And after this latest post, I'm not sure my sympathies lie with the children.





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03 Jun 2011 4:15 AM by Byork Star rating. 11 posts Send private message

I'll admit to being stubborn but greed is not a motivating factor, jek. If anything, standing up for our rights has been a money pit. We've paid 15 years worth of taxes on two properties, legal fees and condo fees while trying to settle the estate. We would have been better off letting the municipality put an embargo on the Madrid property and just turn around and buy it 7 years ago.

I guess I really don't understand the uso fructo aspect of Spanish inheritence law. It seems like the surviving spouse gets to dictate how the estate is settled based on it. In fact, even if there was a will, I guess it would have to address this uso fructo aspect. Perhaps it only comes into play if both are Spanish citizens. (My father had reclaimed his Spanish citizenship a couple of years before he died.)





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03 Jun 2011 9:40 AM by Faro Star rating in London. 1139 posts Send private message

You might want to look into her entitlement of your late father's Canadian Civil service pension as some civil service pensions only pay out to spouse if she is not re-married or living with someone else.

Your situation is typical of many I have come across.

This is your family's money and the behaviour of the new wife is typical of trying to get everything into her name whilst he was living and then trying to grab anything that's left.

At the time of your father's death were they actually seperated?





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03 Jun 2011 11:16 AM by jek Star rating. 249 posts Send private message

jek´s avatar

Faro,

you are in no position to pass judgement hearing only one side of the story. 

And when you say "This is your family's money " I think that you are totally wrong.  It is emphatically NOT byork's family's money.  It is byork's father's money and he was free to do with it as he wished.  Her father had earned the pension and the properties through his efforts.  They were his to do with as he chose.  If he was madly in love with this woman to the extent - so we are told - of liquidating many of his assets in order to buy a house in her name, I can understand byork being miffed.  And if the son had fallen out with the father for refusing to let the father dispose of his - the father's - property as he wanted, then it's reasonable to suspect that the relationship between byork and her father was also pretty strained.  But the bottom line is that the father was free to dispose of his assets as he saw fit. Tacky.





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03 Jun 2011 11:29 AM by Faro Star rating in London. 1139 posts Send private message

Jek

This is a forum and we are all entitled to our opinion and to also express that opinion.

If we all took a nuetral stance then it would be a rather boring forum.





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03 Jun 2011 4:28 PM by Byork Star rating. 11 posts Send private message

Jek and Faro, I appreciate both your perspectives.

As I mentioned before, my older brother and I tried to be supportive of my father's new marriage. We attended the wedding and I helped get the pension papers together for him to make the required survivor benefits changes. My older brother even hired a Canadian lawyer to help with the pension arrangements when my father passed away. I had no issues with his choice at the time. (His widow refused to pay the small legal fees my brother took on to help her.)

As for why we would think some of his assets are owed to us, there is mainly one reason. My mother stipulated in her will that the condo which was the family home was to be passed on equally to me and my brothers. Her lawyer warned her that my father would have to sign an agreement that he would waive his spousal rights and respect her wishes but she did want to confront him with that and felt that he would honour her wishes since he had insisted that the deed be in her name and that it would always be hers no matter what happened to them as a couple.

Everything was fine with my father wanting to keep a home base in Canada, splitting time between two countries. But then he decided that was too tiring, started his new relationship and sold the condo. That's when he insisted that since he was using that money to buy new properties, he would be putting them in our names, in keeping with my mother's wishes.

Both parents were civil servants so I would say that it's fair to describe their shared assets as family money. The pension was wholly his to do what he wanted with.





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03 Jun 2011 5:15 PM by Faro Star rating in London. 1139 posts Send private message

Hi Byork

Just like I said it's your family's money and should pass to you and your brothers/sisters and not to some new wife of 3 years.

Would you clarify if your father was separated at the time of his death and whether that was formal or not ie did a convenio/agreement exist?





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03 Jun 2011 6:07 PM by Byork Star rating. 11 posts Send private message

Hi Faro. About separation, I discussed this with the lawyer and since there was no formal agreement it really has no impact on this case.

This exchange has been very helpful. I am working out a list of questions to send to our lawyer. I feel like we really have to have some kind of plan moving forward. I recently got dual nationality and perhaps that would help with a more positive outcome should we go to court.





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03 Jun 2011 10:50 PM by Faro Star rating in London. 1139 posts Send private message

Art 834 of the Spanish Civil Code speaks of both legal separation and "de hecho" meaning in fact.

It might be worth seeing what case law exists on that Article and on proving a couple were in fact separated despite not having formalised the divorce/separation.

 





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03 Jun 2011 11:27 PM by Byork Star rating. 11 posts Send private message

Faro, I remember my lawyer looking into this and perhaps I should ask him again. I vaguely remember there being a change regarding separation but my father not qualifying or being granfathered based on the date the new law came into effect.

Plus it would be hard to prove, especially with so much time having gone by (would be hard pressed to find any witnesses). The apartment he lived in when he passed away is in his wife's name. That I would imagine implies still together.

Strangely enough, the Madrid apartment is considered the primary residence and part of the Estate (in my father's name) even though he only lived there in the first 6 months of marriage and was registered as a citizen of Benidorm at the time of his death.





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04 Jun 2011 11:07 AM by Faro Star rating in London. 1139 posts Send private message

Byork

If you have tried everything else then you have to go to court.

Spanish inheritance law is designed primarily to protect the family.

The problem is 2nd relationships messes everything up but it would appear you are left in an untenable situation.

Also this was a relatively short second marriage resulting in no children and I'm guessing no income was earned during that marriage and any assets acquired were from your father's pre-existing wealth (which was half your mother's!).

Also there would appear to be sufficient assets such that the situation can be dissolved without putting one party on the street.

Once you start the legal process then it may well bring her back to the negotiation table willing to be more reasonable but you do need to start that process and be prepared to follow through.

But I would recommend exploring the separation issue further. There are many reasons why couples decide not to formalise separations and opt to just live separate lives.

Also it might be advisable to discuss with other lawyers and make sure the lawyer that you engage is in agreement and supports the intended action.





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04 Jun 2011 11:38 AM by jek Star rating. 249 posts Send private message

jek´s avatar

"Also it might be advisable to .......... make sure the lawyer that you engage is in agreement and supports the intended action."

Unbelievable!!!!!


 





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