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How will Brexit affect you if you want to buy a property in Spain?

If you’re considering buying a property in Spain, it’s likely that you’ve spent the last couple of years pondering how Brexit will affect you. For some, the postponement of the deadline until October 2019 will be welcome news that they have more time to make their dream of living in Spain come true, while others may have been hoping that the negotiations were finalised, so they know where they stand once and for all.

While it may be frustrating that there is still some uncertainty as to what Brexit will mean for UK citizens living in Spain (depending on whether there’s a deal or not) for those who have their hearts set on moving to Spain the delay does mean there’s now longer to apply for residency in Spain.

Can you apply for residency in Spain if you are a UK national?

As the situation currently stands, the Spanish Government’s Royal Decree which was announced in March 2019 protects the rights of any British citizens who are living in Spain prior to the UK leaving the EU. This means that UK nationals living in Spain before this date will be able to retain their Spanish residency and access to healthcare in Spain.

If the UK leaves the EU with a deal, UK citizens can apply for residency in Spain so long as they arrive in the country before 31 December 2020 and will continue to have the right to reside in Spain for as long as they remain living there.

What happens if there’s a no deal Brexit?

However, if the UK leaves the EU without a deal, UK nationals living in Spain before the UK leaves will be considered legally resident for 21 months, regardless of whether they have a current residency document. It is yet to be decided what will happen long-term if there’s no deal.

What if I just want to buy a property in Spain but do not want to live there?

For those simply looking to buy a holiday home in Spain, whether there is a deal, or no deal Brexit is unlikely to make much different to them. The Spanish Royal Decree does, however, mean that British tourists using the EHIC scheme for free or reduced medical costs if they need to see a doctor or nurse in Spain will continue to be able to access these services for free.

What do we know for certain?

Whether the UK leaves the EU with or without an agreement, any UK nationals living in Spain will need to apply for a Foreigner’s Identity Card (TIE), to retain their residency in Spain. This can be obtained in person at designated police stations.

If the UK leaves the EU with a deal, UK nationals will have until 31 December 2020 to apply for a Foreigner’s Identity Card. If the UK leaves without an agreement it will be necessary to obtain a Foreigner’s Identity Card within the 21-month transition period.

How long do you have to live in Spain before you can apply for residency?

Despite popular belief you do not have to have live in the country for a minimum period before you can apply for residency. You can in fact apply for residency as soon as you arrive in the country, as long as you intend to live in Spain.

You can apply for permanent Spanish residence in Spain once you have legally lived in Spain for five continuous years. If you choose to, you can apply Spanish Citizenship after 10 years.

Should I move to Spain before or after Brexit?

It’s impossible to know at this stage, exactly how Brexit will affect Britons who choose to live in Spain. However, if you’ve got your heart set on living in Spain the current advice is that moving before the 31 December will likely make the process smoother, as obtaining residency after this may be more complicated.

There are other things to consider before making the leap though, such as healthcare and finances. Looking into healthcare insurance options is advisable in case there is not a reciprocal agreement between the UK and Spain after Brexit. Registering on the Padrón – a re­gister of all the people res­id­ent in the town/area, which is similar to the electoral roll in the UK – can help you access healthcare in Spain though.

In terms of currency exchange rates and the possibility of your funds for a property purchase being affected by Brexit, it’s advisable to speak to a currency exchange specialist to discuss how they can help you get the most competitive exchange rates, which can help you save between three and five per cent of the funds being transferred. Currency exchange specialists always offer a much better rate than the high street banks, plus they can also help you track and ‘fix’ exchange rates to help you avoid being negatively affected by currency rate fluctuations. For more information on currency exchange specialist and how they can save you money read our article: When should you consider using a currency exchange specialist?

For help finding an English-speaking lawyer in Spain contact us on 01244 470339 or email info@worldwidelawyers.co.uk. We can also put you in touch with Spanish mortgage brokers, currency specialist and estate agents, who can help you buy safely and efficiently in Spain.  

 

Spanish Lasting Power of Attorney

Recognition of Lasting Powers of Attorney and Deputyship Orders in Spain

For those who have assets in Spain and have an English Lasting Power of Attorney (LPA), Enduring Power of Attorney (EPA) or Deputyship Order (DO) it will be necessary to take additional steps to deal with the assets in Spain.

An English Lasting Power of Attorney (LPA) is a legal document whereby a person (known as the donor) gives permission to another person (such as a professional, trusted family member or friend) to make decisions and take actions on their behalf. This person is known as the ‘attorney’ and this permission is known as the attorney’s powers. These powers continue even if the donor loses mental capacity.

In these circumstances it will be necessary to have the LPA/ EPA/ DO recognised in Spain or for someone else to be properly appointed, on behalf of the owner who has lost the mental capacity, to deal with the Spanish assets.

Are English Lasting Powers of Attorney recognised in Spain?

A UK Lasting Power of Attorney is highly unlikely to be recognised in Spain on its own, without further process. However, there are steps that you can take to get the LPA validated by the Spanish authorities to enable the LPA to be recognised in Spain and therefore the attorney to deal with the donor’s Spanish assets.

This process involves obtaining a legalised and officially sworn translation of the LPA that it is acceptable under Spanish law.

In addition, it will usually also be necessary to obtain a sworn statement from a lawyer with the appropriate expertise stating that, under English law, the LPA gives the attorneys authority to deal with the assets of the person who gave the LPA (the donor).

It is crucial that these steps are overseen by a legal professional who understands the nature of the LPA as well as the Spanish legal system and can advise you accordingly to ensure that the correct measures are undertaken.

An application to a Spanish Court for the English LPA to be recognised can then be made although the process is complex and likely to be costly and time consuming.

It should be noted that ‘attorneys’ given power under an English Lasting Power of Attorney are not able to delegate their power further i.e. they are not allowed to appoint a further ‘attorney’ in Spain to handle any Spanish assets such as properties or bank accounts. So, for example in order to sell a property in Spain for someone who has lost mental capacity, the English ‘attorney’ would need to travel to Spain to deal with the transaction.Will an English Enduring Power of Attorney be recognised in Spain?

If there is an Enduring Power of Attorney (EPA), the process is similar to the process to have an LPA recognised in Spain, however, additional time and costs may be incurred as the EPA will need to be registered in England before the process of validation in Spain can commence.

Will a Deputyship Order be recognised in Spain?

In the event that the person has lost capacity before either an LPA or an EPA has been put in place, it will be necessary to apply to the English Court of Protection to ask them to appoint someone (known as a Deputy) to manage their affairs.

An option could be for the Deputyship Order to appoint a Spanish Attorney to manage the Spanish estate, which means when selling a property in Spain, for instance, this can help avoid the necessity of a UK based Attorney having to travel to Spain to deal with matters.

It is possible to make an application to a Spanish court to have an existing Deputyship Order recognised in Spain. The process is likely to be expensive and take time, however.

Can you make a Spanish Lasting Power of Attorney?

Yes. For someone owning assets in both the UK and Spain, it is recommended that an both an English LPA (to cover any English affairs) and a separate Spanish Power or Attorney (which is specifically worded to authorise the appointed attorneys to deal with any Spanish assets in the event of loss of capacity) are prepared.

Obtaining the right legal advice and putting the correct documents in place can help to avoid any unnecessary cost and delay in dealing with Spanish assets when the owner has lost capacity.

If you are dealing with assets owned by someone who is unable to deal with the assets themselves whether or not under a Lasting Power of Attorney, Enduring Power of Attorney or Deputyship Order you should seek proper legal assistance to enable you to deal with the assets effectively in compliance with your obligations.

 

If you require assistance with having an LPA recognised in Spain, Worldwide Lawyers can put you in contact with a lawyer who can assist. Contact us on 01244 470339 or email us at info@worldwidelawyers.co.uk and we’ll be happy to explain how we can help.

 

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Author: Sara Janion, overseas legal expert, solicitor and Notary Public

 

Matrimonial Property Regimes

What is a Matrimonial Property Regime (MPR) and why do I need to know about them?

Most UK solicitors are not necessarily familiar with matrimonial property regimes as it’s not something that we have within our family law.

Matrimonial Property Regimes (MPR) are a fundamental part of law in many other countries, however, and so when dealing with clients with overseas connections, it’s something that UK solicitors should be aware of, especially when it comes to succession planning, wills, probate and divorce.

Our unfamiliarity with the concept of MPR can also be difficult for many foreign lawyers to understand, which can lead to frustrations where lawyers are dealing cross border.

So, what is a matrimonial property regime? Who do they apply to? And why is it important for UK solicitors to be aware of them?

 

What is a matrimonial property regime?

A matrimonial property regime (MPR) is a formal, binding contract entered into between spouses on marriage which outlines the ownership of the couples’ assets on death or divorce. They can also be applied to civil partnerships in some cases.

The relevant regime (see type of regimes below) usually takes effect before any assets devolve under a will (similar to the way in which the rights of survivorship apply when assets are held as joint tenants). This is why it’s important to know about the existence and application of an MPR before preparing a will or dealing with an estate administration for foreign clients or clients who have links to other countries.

 

What types of MPR are there?

An MPR usually takes one of the following forms:

  • Separation of property (similar to tenancy in common); Essentially this regime means that property, whether owned before or after marriage is owned separately by the party that paid for it;
  • Universal community of property (similar to joint tenancy); This regime provides that all property of the marriage is owned jointly by the spouses, except for gifts and inheritances; or
  • A combination of the two (i.e. community of acquisitions, deferred community of acquisitions, equalisation of gains).

MPRs are usually entered into at the point of marriage and a ‘default’ regime will apply, although it is usually possible to select an alternative regime (some jurisdictions also permit a choice of law). It is even possible to have two or more regimes apply to the same couple in different countries depending on the circumstances. They can also be entered into and changed after marriage. It’s also possible for an MPR to cover only specific assets, like property.

 

Who do MPRs apply to?

Many civil-law and bijuridical jurisdictions have statutory default matrimonial regimes. Which is why, it’s so important to check with foreign clients or clients who have links to other countries whether there is an existing MPR.

Depending on the jurisdiction, there may be different connecting factors to associate individuals with a particular MPR, such as:

  • Nationality (of either or both parties)
  • Domicile (of either or both parties)
  • Habitual residence (of either or both parties)
  • Location of immovable property (of either or both parties)

As of 29 January 2019, new legislation affecting EU matrimonial property regime regulation, which aims to harmonise the application of MPRs and CPRs across signatory states. Currently there are 18 signatory states (‘member states’): Austria; Belgium; Bulgaria; Croatia; Cyprus; Czech Republic; France; Finland; Germany; Greece; Italy; Luxembourg; Malta; Portugal; Slovenia; Spain; Sweden and The Netherlands.

The following 10 states have not signed up at this stage: Estonia; Denmark; Hungary; Ireland; Latvia; Lithuania; Poland; Romania; Slovakia and the UK.

However, UK nationals will be affected where they own assets in signatory jurisdictions and an MPR applies to them or their spouse.

 

Why is it important for UK lawyers to understand MPRs?

MPRs are one of the building blocks of cross-border planning and it’s important to note that despite MPRs not existing in the UK system, British nationals can be affected by them as mentioned above and they can apply to movable assets under English law.

An MPR overrides a will when it comes to asset distribution, therefore the incorrect application of an MPR for succession purposes could mean that the assets are distributed incorrectly. So, it’s crucial to understand whether there is an MPR in place before distributing assets from an estate.

Likewise, when assisting clients with estate-planning you need to be aware beforehand whether an MPR applies to ensure you can advise them correctly. MPRs are one of the reasons that wills are not as common in civil law jurisdictions.

 

If you’re dealing with a client where an MPR may be applicable and need assistance, contact Worldwide Lawyers on 01244 470339 or email info@worldwidelawyers.co.uk and we’ll be happy to connect you with a lawyer in the appropriate jurisdiction.

Author: Sara Janion, overseas legal expert, solicitor and Notary Public

 

Flag of Portugal

Applying for a Golden Visa in Portugal

Portugal’s Golden Visa scheme is one of the most popular in Europe thanks to the benefits and flexibility including various investment options, minimal requirement to spend time in Portugal and ability to apply for permanent Portuguese residency after just five years to name a few.

If you’re interested in finding out more about applying for a Golden Visa in Portugal read our frequently asked questions below!

What are the advantages of a Portuguese Golden Visa?

Ultimately having a Portuguese Golden Visa grants you many of the same rights as a Portuguese resident: the right to live and work in Portugal without needing a special visa; access to the healthcare and education system; free travel in the Schengen area etc.

The Portuguese Golden Visa also allows you to bring your family members with you, including your spouse, children who are dependents (i.e. single, in education and being supported by you) and parents who are dependent on you. In principle, parents aged 66 and over do not need to prove dependency, though this can vary from case to case.

After five years it’s possible to apply for permanent residency and citizenship in Portugal, if you wish, offering the ability to freely live, work, study and travel in any country within the European Union. Portugal’s favourable tax regime might be another incentive to apply for permanent residency.

Who can apply for a Golden Visa in Portugal? 

Any adult citizens outside of Portugal and the EU/EFTA are eligible to apply for a Portuguese Golden Visa providing they can meet the following criteria:

  1. No criminal conviction carrying more than a one-year prison sentence
  2. No ban from entering the Shengen Zone
  3. Make an investment into Portugal (see further details on investment options below);
  4. Spend a minimum of seven day in Portugal in the first year of investment;
  5. Spend a minimum of 14 days in Portugal every two years thereafter.

The investment can either be made an as individual or through a company, providing that you are the sole owner of the company. The company must be based in Portugal.

What investment options are available?  

There are a number of investment options available for those seeking a Portuguese Golden Visa. The most commonly sought opportunities are the following:

  1. Invest in property worth at least €500,000
  2. Reduced investment of €350,000 into property requiring renovation – the property must be qualified and approved by the Serviço de Fronteiras e Estrangeiros (SEF)
  3. Transfer of capital of at least €1,000,000
  4. Creation of at least 10 jobs.

How do I apply for a Portuguese Golden Visa?

The application for a Portuguese Golden Visa should be submitted online, and, once approved you’ll be invited for a face-to-face interview by the SEF.

Although the application process is not necessarily complicated, a lot of documentation must be gathered from both the applicants home country and Portugal. Foreign documentation (i.e. not issued in Portugal) will also need to be notarised and legalised and anything that’s not in Portuguese will also need to be translated. So, it strongly advisable to instruct a legal professional to assist with your application to ensure that all the documentation is completed accurately.

It’s also necessary to obtain a Portuguese fiscal number (NIF number) and set up a bank account, which a Portuguese lawyer can assist with if you are not present in Portugal.

The application process typically takes five to six months; however, this can vary depending where it is lodged. For instance, if an application is lodged in Lisbon it can take up to a year, due to the high volume of applications.

How much does it cost to apply for a Golden Visa in Portugal? 

The Government fees for an application are €5324.60 per person, plus renewal fees every two years charged at €2666.30 per person. There is a processing fee of €532.70, plus €83.10 for additional family members, on submission of the application for Portugal’s Golden Visa. Processing fees are also applicable in relation to the renewals every two years.

Furthermore, applicants should budget for the additional costs associated with a property purchase in Portugal, including, lawyers’ fees, notary fees, purchase taxes etc. We recommend budgeting 10-12 per cent of the property purchase price.

 

For more information about applying for a Golden Visa in Portugal or for legal assistance with an application contact Worldwide Lawyers on 01244 470339 or email info@worldwidelawyers.co.uk.

 

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*The information provided is intended as general guidance only for those considering applying for the Golden Visa in Portugal and is not a substitute for specific legal advice about your specific information. If you would like specific legal advice in relation to Golden Visa Applications from an experienced lawyer contact Worldwide Lawyers.

**The Schengen area countries in Europe are: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland and Liechtenstein.

***EU countries include: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.

Author: Sara Janion, overseas legal expert, solicitor and Notary Public

 

resealing grant of probate

Worldwide Lawyers’ round up of the Law Society Cross Border Conference

Worldwide Lawyers Managing Director, Sara Janion, attended the annual Law Society Cross Border Conference in London on 7th March 2019 and provides the following round up of the day’s events.

For those who aren’t aware, the annual Law Society Cross Border Conference is aimed at private client practitioners who wish to learn more about dealing with cross border estates and international clients with foreign interests.

Part of the focus this year was on the new EU Matrimonial property and Civil Partnerships regimes. Matrimonial property regimes are a completely alien concept to most UK solicitors but something that ought to be considered when dealing with clients with assets abroad, especially when it comes to succession planning, wills, probate and divorce.

A matrimonial property regime (MPR) is a formal, binding contract between spouses (and in some cases civil partnerships), which sets out the ownership of the couples’ assets on death or divorce.

The relevant regime usually takes effect before any assets devolve under a will (a bit like the way rights of survivorship relating to assets held as joint tenants do). It is therefore necessary to know about the existence and application of an MPR prior to preparing a will or dealing with an estate administration. For succession planning MPRs can also be quite a helpful tool and can be recognised in English law for moveable assets. (Watch this space for more information about Matrimonial Property Regimes and the new regulations in our upcoming article).

As is traditional at the conference, the afternoon consisted of a case study of a deceased estate administration where there were assets in multiple jurisdictions. The scenario was analysed by a panel of foreign lawyers from Spain, Italy and France with participation from the audience, which included legal practitioners dubbed as ‘Cross-border Royalty’. The study highlighted the different approaches by each country and the application of the EU succession regulations.

I was fortunate to be able to catch up with a number of the foreign lawyers within the Worldwide Lawyers international legal network at the conference. Many had travelled from their respective jurisdictions specially to attend the conference which highlights the dedication, expertise and experience these lawyers have with regard to advising English clients and law firms in relation to cross border wills and probate matters.

Take away points to note:

• When dealing with succession planning or administration of an estate with foreign assets make sure you seek advice from a foreign lawyer in the relevant jurisdiction.
• Don’t forget to check if your clients are subject to a matrimonial property regime and the effect of this before preparing any wills or dealing with inheritance.
• Consider the effect of the EU succession regulations on choice of law when dealing with estates with foreign assets. The regulations have retrospective effect and choice of law can be implied. Often the applicable law is therefore not completely obvious.
• The concept of universal succession in other countries means that estates are inherited ‘warts and all’ and beneficiaries are liable for the deceased’s debts from their own funds. It is possible to waive an inheritance in many jurisdictions (in whole or in part depending on the jurisdiction) but this must be dealt with properly with assistance from a foreign lawyer.

If you are dealing with a case which requires assistance from a foreign lawyer, or any case where there is an international legal aspect, please do not hesitate to contact Worldwide Lawyers on 01244 470 339 or info@worldwidelawyers.co.uk. We will be happy to provide initial guidance and, where required, put you in touch with a recommended law firm who can assist you with your overseas and cross border probate.

Author: Sara Janion, overseas legal expert, solicitor and Notary Public