Note: The names, places and some facts have been deliberately altered to protect the privacy of the actual authors.

In this post we study a real case. It's about the succession of a Norwegian citizen deceased in Spain.

1/ Acts. Arens Smith died in the Canary Islands as a Norwegian citizen. His death is survived by his widow, Berta, and two sons Claude and Dalf. In Spain he has left a flat on the coast. The married couple is married under deferred community of goods.

Passed away with will awarded in Norway, the apartment is awarded to his two children and he grants the right to inhabit it and "manage" the apartment to his wife.

In Norway, an inheritance administrator is appointed according to the English system - very similar to English - that the management of the inheritance corresponds to a "representative" not to the heirs.

2/ The interests. The wife wants life use of the flat in Spain and the children want it. bare ownership halves.

3/ Problems.

  • The first problem is fiscal. The wife has the right to 1/2 in property and she wants the whole in usufruct, how to implement it?
  • The second problem is civil. The wife wants something else than what belongs to her.
  • A third civil problem. Can the Norwegian estate administrator -A lawyer- do the paperwork in Spain ?.

4/ The solutions.

Options raised:
A) In the deed of dissolution of the property, distribution and adjudication, I have contemplated the possibility of the commutation of the undivided half of the widow in favor of the heirs of the deceased (100% of the full domain of the property -the bare property- ) and granting the usufruct of the entire property to the widow. Now, I understand that this assumption, if plausible, would have no fiscal cost. However, the CC only contemplates the commutation of the usufruct for capital, income or assets and not the opposite, as is the case. In addition, if done, the widow would be unbalanced in terms of the value of her half, which would not be equal to that of the usufruct.
This solution could occur in the distribution and mention it in the dissolution of the matrimonial property regime in the deed.
B) The solution that I have contemplated – the most practical and fiscally attractive – is that once the inheritance has been awarded and the undivided half of the deceased has been distributed, dissolve existing condominium between the heirs and the widow, compensating her for that loss with deferred payments that presumably will not be made, having access to the Registry from the outset. Fiscally, it does not have capital gains (as it is an abstract distribution of property) and would simply be taxed for AJD at 0.75% of the value.
Since the ISD is prescribed, I don't see any inconvenience in adopting this solution as the cost will be lower.
C) I understand that the donation in favor of the heirs is ruled out due to the high fiscal cost.
Regarding the third problem: Finally they reported that the judicial administrator of the estate It does not have powers in Spain to act on behalf of the heirs, so we ask the Court for a certificate but it is not enough, since it does not detail the powers of the liquidator of the inheritance.
Consultation more information about inheritances in our Notary in Barcelona.