Inheriting property abroad where there is also a right to remain

Markdavid1962

@SeekingAnswers7842

This looks quite complex, even if you look at selling now it may be easier to wait the 3 years.

My only advice if your daughter inherits (as below) as a minor and then waits until her birthday to sell (which may be cheaper than the process below). Ask the Spanish solicitor to include that the person with the right to abode is fully responsible for all bills related to the property while she resides in the property, as when you come to sell a property in property and outstanding debt (electric, water, council tax) is deducted from the sale price.

Below is from  Spanish assets and minor interests | Solicitors in Spain

If a building is inherited in Spain in similar circumstances, then provided all those with parental responsibility for the minor agree, the property can be registered in the name of the minor him/herself.  Once the minor reaches the age of majority, the minor may sell the property without reference to anyone else. However, until that time the minor may only sell the property with the permission of his/her parents, or those with parental responsibility, and with the consent of the competent authority in the jurisdiction in which the child is habitually resident. (Please see Articles 5 and 8  Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.)

This may not pose such a problem in a situation in which the minor is the sole owner of the property, as it is arguable that the minor and his or her parents (or others with parental responsibility) may simply exercise patience and realise the asset when the minor turns 18.  However, where the property is owned by various beneficiaries, because, for example, the will of the deceased left it to a number of people in equal shares, then there may be reasons for which the property needs to be sold more swiftly. Alternatively, there may be other reasons as to why an immediate sale of the property would be beneficial.

Ownership of property in Spain by a minor who is resident in England or Wales

If a minor owning property in Spain is resident in England or Wales, it will be the High Court that has jurisdiction as to whether those with parental responsibility may realise the asset.  As you would expect, the court will be most concerned with whatever is in the interest of the minor, notwithstanding that any co-owners may be keen to realise their share of the asset straightaway.  Given that a minor cannot engage a legal representative him or herself, or make an application as a litigant in person, it is necessary that a litigation friend be identified in whose name the application can be made.  Any other interested parties will also need to be party to the proceedings.

In coming to its decision as to whether property owned by a minor in Spain may be sold, the court will need to understand the following:

(i) How the circumstances have arisen that necessitate such an application;

(ii) How an estate on death is administered in Spain;

(iii) The specifics of the administration of the estate in question including reference to all of the estate assets and the way in which they have been distributed to beneficiaries to date, if at all;

(iv) The practical reasons for which the property needs to be sold in the interest of the minor(s);

(v) The reason for which an order of the English court is required to sell it, including specific reference to Spanish law and the basis in English law of such an order, and finally and perhaps most importantly;

(vi) The current financial position of the minors and of those with parental responsibility for them, going to the crux of the reason as to why the asset needs to be realised now, rather than when the minor(s) attains the age of majority.  

In addition, the court will expect to receive copies of all relevant documentation, translated into English if drafted in Spanish, supporting the application.  An affidavit as to Spanish law will also be necessary.

Providing sufficient details to the court may seem to the applicant to be a very intrusive and onerous process.  The court needs to understand the entire matter, leaving no stone unturned, in order to be able to take a decision in the interest of the minor(s).  Failure to reveal relevant information at the application stage may well result in the court asking for further information, [staying the proceedings] until further information or documentation is made available, or insisting upon a hearing in person, thereby increasing the costs of the matter considerably and delaying any order, as well as delaying the sale of the Spanish property.

Making a successful application in England & Wales for permission to sell Spanish property belonging to a minor will depend to a very great degree, if not entirely, on engaging a specialist practitioner with experience of this narrow type of application.  Detailed knowledge of both English and Spanish law and practice in this area are essential, as the English court is being asked to determine the outcome based on both the interests of the minor(s) according to English law, as well as the applicable Spanish law.

elsien

Asking the solicitor to include that the occupant pays the bills surely would depend on the point of view of said occupant as well, and not something that could be done, unilaterally.

poseidon1

If this were my child and for the relative modest amount involved ( 1/3 of 120k euros) I would want to disclaim/ renounce the Inheritance outright if there is no indication either of the other owners would be interested in buying her out, even at a deeply discounted figure.

Your child is exposed to unspecified future potential liabilties whilst her own ambitions to purchase her own home in the UK in future, are adversely affected by her de facto Spanish property ownership.

The problem with disclaimer, is that it would require the imprimatur of the Spanish courts - see link below -

https://www.impuestosherencias.es/en/how-to-accept-or-reject-an-inheritance-in-spain#:~:text=Renouncing on Behalf of Minors,renouncing, can it be redirected

So to add insult to injury, in order to extricate your child from this undesirable inheritance, you as parent would likely be put to legal costs. An unpalatable situation all round, but I would explore the likely cost of the disclaimer/renounciation route as another option.

SadCodeMan

I think I really agree with the above. (If it was me in my sitiuation)

Either the dynamic between the other siblings and you/your daughter is one where they are happy to try to sort out something or it is in a harder place.

In the former case, I think it is not impossible that they would still be willing to talk about that even after you have disclaimed and have no legal right any more (obviously maybe not). 

In the latter case I would be even more keen not to lumber my daughter with a potential set of bills that they could not get out of and is a very possible world where there was no upside outlook. I am guessing that if either the brother or sister have children then they will inherit the 1/3 each of them has split across their children so it might not even resolve in that generational time line.

For me, I would see the downside as being too much.

As icing on the cake (I think @Keep_pedalling mentioned?) if having the share of the house triggered losing first buyer rights in the UK or even additional stamp duty on second property (probably that does not but...) then I would think the known downside would really outweight any potential upside.

 

Mands

poseidon1 said:

If this were my child and for the relative modest amount involved ( 1/3 of 120k euros) I would want to disclaim/ renounce the Inheritance outright if there is no indication either of the other owners would be interested in buying her out, even at a deeply discounted figure.

Your child is exposed to unspecified future potential liabilties whilst her own ambitions to purchase her own home in the UK in future, are adversely affected by her de facto Spanish property ownership.

The problem with disclaimer, is that it would require the imprimatur of the Spanish courts - see link below -

https://www.impuestosherencias.es/en/how-to-accept-or-reject-an-inheritance-in-spain#:~:text=Renouncing on Behalf of Minors,renouncing, can it be redirected

So to add insult to injury, in order to extricate your child from this undesirable inheritance, you as parent would likely be put to legal costs. An unpalatable situation all round, but I would explore the likely cost of the disclaimer/renounciation route as another option.

I was on the other side of a similar issue a few years ago. Different EU country, forced heirship involved, lots of people feeling hard done by in terms of what they would receive, all immovable property. 

I 'bought out' the other parties in exchange for them giving up their legal rights. The amount the other individuals received was slightly more than their legal entitlement, though they believed it was less. As part of that I covered all the legal fees. No one was particularly happy but it gave everyone a clean break.

nom_de_plume

Not sure if it's been covered but were you and your daughter's mother married at the time of her death and / or does the Will specify that your daughter would inherit in the event of her mother pre-deceasing her gran?