Inheritance: Distribution, heirs, contestation and wills

Inheritance: Distribution, heirs, contestation and wills
Published on: 2 September 2022

Table of contents

All of us, at some point in our lives, have to deal with the distribution of inheritances from family members. Generally, from our parents when they pass away, although it can be from anyone else. A complex issue that depends on many factors and which we would like to analyse in depth here.

What are inheritances?

 

Inheritance is a process by which people receive the assets of others after their death. Civil law and tax law come into play. In some cases, international law also comes into play.

Any person can be the heir of another, as the only requirement is that he or she is not legally incapacitated. They can be natural, legal, public or private.

Documents required for the distribution of inheritances

Once the subject's death has occurred, his or her heirs can initiate the succession process. To do so, they need to gather the following documentation:

  • Verbatim death certificate. This is the document that certifies that the subject has died. It is obtained from the Civil Registry Office by providing the ID card of the deceased. For some years now, it has also been possible to request it online.
  • Certificate of last will and testament. This determines whether or not the deceased granted a last will and testament. If so, it will show the name of the notary where it was deposited. You can request it by filling in and paying the fees for form 790 once 15 days have passed since the death. Otherwise, it will be necessary to go to a notary to obtain the notoriety certificate of heirs.
  • Will. This is the last will and testament of the deceased.
  • Position certificate. This is issued by the banks with which the deceased had balances and contracted products and services. It is essential to redeem their accounts.
  • Partition and adjudication document. Determines the way in which the inheritance assets will be distributed.
  • Inheritance tax settlement. Or, failing this, proof of exemption.

 

Acceptance or repudiation of inheritances

Once all these documents are gathered, it is time to make an inventory of all the deceased's assets. This should include all the deceased's property, as well as the money deposited in bank accounts and investment products.

The next step is to go to a notary, who will proceed to make the call for heirs. This is another essential stage in the distribution of inheritances. At this point, the heirs can choose to repudiate the inheritance, in which case they will have no rights and obligations, or to accept it. Let us not forget that this is a voluntary act, even if it is full and unconditional.

This means that, in the event of accepting the inheritance, the heir must do so with all its consequences. He or she may not do so partially or with conditions. This is particularly important, as inheritances can also have debts and obligations attached to them.
In this respect, acceptance can be made in two ways:

  • By benefit of inventory. This option allows the heir to consult his obligations and rights before accepting his share. It offers the advantage of allowing him/her to respond to debts and obligations only to the extent of the assets of the inheritance.
  • Without benefit of inventory. It is an outright acceptance.

How is an inheritance distributed in a will?

This is undoubtedly the simplest case. A will is the document by which a person expresses how he or she wants his or her assets to be distributed after death. Generally, it is made before a notary and usually costs no more than €60.

However, the testator cannot make a will of his own free will. It is necessary to comply with the precepts established in the Civil Code in this regard. This determines that the inheritance must be divided into three equal parts, which are:

  • The legitimate third. This third of the inheritance is protected by the Civil Code, which guarantees that it must be divided equally among the legitimate heirs. Most commonly, these are the children. If one of them is deceased, his or her share will be inherited by his or her children (the testator's grandchildren). If there are no children, it will be divided among the siblings.
  • The third of improvement. The second third of the inheritance must also be divided among the legitimate heirs. However, in this case, the testator is free to distribute it as he/she sees fit. Therefore, some heirs may be disadvantaged and others may benefit.
  • The third of free disposition. As its name indicates, the Civil Code gives total freedom to the testator to distribute the last third of his inheritance as he sees fit. In other words, he may assign it to any person or body he wishes, regardless of his relationship with that person or body.

Challenging a will

We already know how the distribution of inheritance is carried out with a will. Therefore, it is now time to explain how and in which situations this document can be challenged. The Civil Code establishes the following cases:

  • The document does not respect the legitimate share of each forced heir.
  • There are formal defects in the drafting of the will.
  • The testator granted the will without legal capacity to do so or with vices in his or her consent (for example, by means of coercion, intimidation, extortion or violence).

For its part, the law also places limitations on testamentary dispositions made in favour of the notary to whom the will was granted, to the witnesses of the will. In fact, it directly annuls them if they are in favour of the confessor or fourth degree relatives if they were included during the last illness of the deceased.

The challenge must be made by means of a legal action in the Court of First Instance corresponding to the place of death of the testator. The time limit to do so is 15 years from the date of death. So it does not matter if the inheritance is divided or not. It will be a judge who will decide whether the will is in accordance with the law or not.

How is an inheritance distributed without a will?

In Spain, it is not uncommon for a person to die without having made a will. In this sense, the law establishes an order for the distribution of his or her assets marked by the degree of affinity with the deceased. Let's take a look at them:

  • Descendants. Children occupy the first place in the order of succession. In fact, if one or more have died, their share is divided among their children (the grandchildren of the deceased). If there are no children, it is distributed equally among the siblings. If there is only one universal heir, he/she will keep everything.
  • Ascendants. If the deceased had no children, his assets will pass to his parents. In the absence of these, their grandparents, if they are still alive.
  • The spouse. It is possible that the subject dies without children and his parents are deceased. In that case, his assets will pass to his widow/widower, provided he was married.
  • Siblings. They occupy the last place in the chain of succession without a will. That is to say, they will only inherit if the deceased had no ascendants, descendants or spouse. If one of them is deceased, his or her share will pass to his or her children, i.e. to the nephews or nieces.

In short, we now know who are the legal heirs with and without a will, as well as many other questions regarding the distribution of inheritances. We hope we have helped you to understand more easily such a complex process. If you have any further questions, please do not hesitate to contact us.

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