Widower cohabiting but no will

Hi, I have a question re inheritance.

A is a widower who is terminally ill and owns an apartment in Andalucia with his cohabitant B (50 % each). A and B are both pensioners and non-residents. No children on B's side. Five children on A's side, all of them Irish but two resides in the USA. No mortgage. A has no Irish will and no Spanish will. B has no Spanish will, but Irish will leaving the 50 % to A. Value approx. €450K.
Please answer the following:
1. Will the children eventually inherit 50% and if so will they have to pay IHT less €16K in Spain/Andalucia as they are non-resident?
2. Will anything change re answer in 1 if a Spanish will is made
3. What if B should die first and A still has no Spanish will?
4. Can A make a Spanish will without travelling to Spain?
5. A bit off topic, but how are a sale of the 50 % from B to A treated?
6. How will a sale effect the tax on a possible gain for the children and B?

Kind Regards,
R

Hello Ren,

Please read my replies to your specific questions:

1. Will the children eventually inherit 50% and if so will they have to pay IHT less €16K in Spain/Andalucia as they are non-resident?

Yes, they will inherit 50% unless Irish Law establishes something different in case of intestate cases. We recommend A to make a Will under Spanish inheritance law indicating what she wishes regarding the Spanish property. A Notary can go to her home if she cannot move, so a Will is made, as long as she is in sound mind.

2. Will anything change re answer in 1 if a Spanish will is made? 3. What if B should die first and A still has no Spanish will?

If a Spanish will is made, whatever she has decided will be applied after her death. As all are non-residents, the Inheritance Tax applicable is not affected; it will be high. If A survives B, A will inherit the 50% ownership of the Spanish property, and once A passes away, his/her children will inherit all.

4. Can A make a Spanish will without travelling to Spain?

Yes, A Will can be done before a Notary in the place where she resides now (providing that is an European country), and it can be done as a Spanish Will

5. A bit off topic, but how are a sale of the 50 % from B to A treated?

If B wants to sell his share to A, it can be done without a problem but the sale has to be real, as the Notary will request proof of payment.

6. How will a sale effect the tax on a possible gain for the children and B?

If after the sale, B and A´s children have got a capital gain, the CGT will have to be paid, that is 21% of the gain. In any case, the 3% of the purchase price will have to be retained by the buyer and be deposited in the Tax office Account, on account of the CGT the seller will have to declare within 4 months after the sale. If the tax declaration showed a higher amount than the one that has been retained, the non-residents will have to deposit the difference in the Tax office account. If the amount is smaller the Tax office will have to refund the difference.

If you wish that we look into your case in more detail, please do not hesitate to contact us by email.

Regards,