Professional
Conduct Risks in Estate Planning Cases with Spanish Assets
November 29th, 2016
The existence of
Spanish assets in cases handled by UK practitioners can give rise to specific
considerations, which can be professionally risky to disregard. A few of the
key stages requiring particular care are as follows:
Spanish Property
Acquisition
Estate Planning
assessment and advice can be critically important at the point of Spanish
property acquisition. It has to be borne in mind, that in the event of
subsequent inheritance, there can be significant exposure to Spanish Succession
Tax- even potentially between spouses. Lifetime changes of ownership of Spanish
properties can be extremely costly to transact, so it is important to have
matters structured correctly- and tax efficiently- from the outset.
It is fundamentally
important that, prior to completing the purchase of a Spanish property, the
proposed ownership structure is very carefully thought through- and the future
succession route (and fiscal consequences) are factored into the purchase
process. Otherwise, unnecessary/ avoidable fiscal exposure can arise.
Fiscal Compliance
Owners of Spanish
properties (both those who are resident in Spain; and those who are not
resident in Spain) have a series of fiscal obligations in Spain, which must be
performed correctly and promptly, otherwise there can be significant
repercussions in terms of exposure to escalated costs/ Spanish fiscal
liability. It is important that estate planning advisers in cases where there
are Spanish assets are aware of these responsibilities, in order to provide
correct cross-border advice.
In many cases, a
Spanish property owner remains responsible for fiscal compliance obligations in
Spain until the end of the calendar year following the year of sale of a
Spanish property. It cannot therefore be assumed that the completion of a
purchase or a sale of a Spanish property concludes matters for the professional
adviser.
Residency
Many people-
particularly in their retirement- dream of a move to a warmer climate and the
more relaxed- and economical- lifestyle Spain seemingly offers. However, making
a full time move to Spain; and becoming an official Spanish resident, can cause
specific complications in the fiscal affairs and liabilities of non-Spanish
nationals. Also, for their families in the event of inheritance.
Any Estate Planning
advisers involved in the context of their clients considering moving to Spain,
need to ensure that the clients have a full understanding of the fiscal
consequences for them and their family of taking Spanish residency- both in
Spain and in their home jurisdiction. In many cases, the fiscal consequences
(and some of them being fairly oblique to the uninitiated), are so far reaching
that it is better to remain UK resident whilst enjoying lengthy stays in Spain-
to the extent legally permitted, without triggering Spanish residency.
Spanish Wills and
Estate Planning
Many UK Estate
Planning professionals seemingly continue to be unaware of the risks of
endeavouring to deal with Spanish assets in English Wills- rather than
following the correct convention of advising that separate Spanish Wills should
be made in respect of Spanish assets.
It continues to
surprise us in taking on Spanish probate cases, how many UK practitioners
endeavour to ‘muddle through’- seeking to deal with Spanish assets in English
Wills. This gives rise (in the event of probate) to additional procedural hurdles
in the Spanish process. Furthermore, it is typical in these cases, that Spanish
assets are implicitly (or even explicitly) placed in Trust structures, which
are incompatible with Spanish law.
In any event, the
risks of delays, complications and additional costs in the legal probate
process in Spain where there is no Spanish Will have been widely covered in
articles in the professional Press over the years. But there are also
situations in which the absence of a separate Spanish Will can have the effect
of an increased Spanish Succession Tax liability. Hence, UK professionals need
to be completely clear and accurate in their advice as to Will structuring, to
avoid the risk of exposing their clients to unnecessary/ avoidable fiscal
exposure and costs.
In principle,
post-death variations to Wills are not permitted under Spanish law. So, that
sometimes-useful fiscal device in the UK does not exist as a facility in
respect of Spanish assets. However, UK testators (for example) with Spanish
assets are entitled to include in their Spanish Wills (along with a properly
drafted choice of law clause), a certain amount of flexibility in the
succession route, enabling their beneficiaries to elect for the most tax
efficient succession route to be applied at the time.
So, this enables post-
death up to date fiscal advice to be obtained, in order to select the most
expedient succession route/ structure. But a Will writer who does not take into
account this highly valuable facility which is available to non-Spanish owners
of Spanish assets, can leave the testator’s beneficiaries exposed to a
significantly greater fiscal liability than might otherwise be the case, with
correct advice and a thorough approach to Spanish Will writing.
Probate
In the Spanish probate
process, it is essential that the practitioner engaged to deal with the Spanish
Estate is professionally regulated, PI covered; and specifically experienced in
the conduct of Spanish probate cases for the estates of non- Spanish
individuals. This type of case is significantly different to a ‘regular’
Spanish probate case; and if the case is not conducted absolutely correctly,
this can not only cause problems in the Spanish process, but can also impact
adversely on the home jurisdiction probate case.
The practitioner handling
the home jurisdiction probate case and the Spanish process need to liaise
closely- especially on fiscal issues. Particular regard must be had to: the
succession route of the Spanish assets (and evaluation of the fiscal
consequences of any discretion as to the succession route); how asset values
are assessed and declared; and the availability of any deductions/ credits
under dual jurisdiction taxation treaties.
A failure by a UK
practitioner (for example), to agree to the appointment of an appropriately
qualified and experienced practitioner in Spain; or to liaise closely with the
appointed Spanish practitioner to achieve the best result overall for the
estate, can leave the Estate/ beneficiaries financially disadvantaged.
The above is a non-exhaustive
list of situations requiring particular care and attention.
The Legal 4 Spain team
is always available to provide preliminary advice on a no-obligation basis in
relation to Inheritance and Estate Planning cases where there are Spanish
assets.
