When can I sell assets from my late husband’s estate?

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When can I sell assets from my late husband’s estate

Q:
I am a British citizen and both my husband and I have owned a property in a urbanisation in Denia. My husband died intestate in Britain 5 years ago.
I want to ask you about the legal steps to carry out to have the property in my name and in my daughter’s one, and what are the tax duties on the inheritance.
We also hold a bank account in Javea. Should I include these assets in my husband’s inheritance? When can I sell the house and what are the taxes to be paid on the sale?

 

A:
When somebody dies without making a will and his heirs want to have all the deceased’s possessions in their names, a document that states who the heirs are is required.
In your case, and bearing in mind that you are British, a Grant of Probate from the Probate Registry is needed to prove who have the right to succeed.
To obtain this document, you must fill in a form in which you have to give details about the deceased, the persons with right to inherit – in your case, your daughter and you – and a list of the deceased’s estate.

You also have to bring forward your husband’s death certificate and, if any, a will or any document in which the deceased had expressed the way of distribution of his estate.
After receiving all the documents, the Probate Registry Office will call you for an informal interview to check all the details and documents provided.

After this point, if everything is alright, the Probate Office will issue the Grant.
Before going to the Notary Office in Spain to get the Inheritance Title Deed (Escritura de aceptación de herencia), you have to collect the following documents:
The Grant of Probate.
Your husband’s death certificate.
A certificate of Last Wills issued by the Spanish Ministry of Justice which certifies that no will has been made.

The title deed by which your husband and you bought the house.
In case you had a bank account, a certificate from your bank, stating the amount of money deposited in it at your husband’s death is also required.
You have to take into account that all documents in English should be translated into Spanish by a legal translator and must have the Hague Convention apostille attached.
Regarding the taxes to be paid on the inheritance, the Spanish Inheritance Tax Act states that they are to be paid within 6 months from the death.
So, you have to speed up the obtaining of your documents to get your new title deed before this date.

However, if you think you could not get all the papers in six months, you can ask the Tax Office for a deferment of the term – up till eight months.
You also have to pay “plusvalía”, which is a local tax to be paid in the town hall where the property is located, levied on the increase in the value of the land between the date you and your husband purchased the house and the date when you sign the Inheritance Title Deed.

Once all the above mentioned steps have been carried out, the new title deed must be submitted to the Land Registry Office to be registered. When the registration is completed you can, then, proceed to sell the house.
The seller must pay capital gains tax, but in your case, and according to the Spanish Income Tax Act, you will be exempt from paying it because your husband died 5 year ago . After 5 years taxes are no longer paid since because this is the limit that the tax office has to claim them.

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