Meaning of inheritance or succession mortis causa.
Inheritance is a universal succession of a person as heir to a set of assets and transferable rights and obligations belonging to the deceased person, with the heirs occupying the same legal position as the deceased.
What is a legatee?
A successor in title who acquires only specific and determined assets from the inheritance. He is only liable for the debts of the estate up to the value of his bequest
What does it mean to be an heir?
The heir is the continuator of the legal relations of the deceased, which have not been extinguished by his death, of all his assets, rights and debts, who is called to the whole of the inheritance and who will be subrogated to the position of the deceased. He or she is his or her universal successor.
What is a will?
A will establishes the parameters of a person’s succession. The will is individual, solemn, very personal and essentially revocable. It is possible to appoint an executor or an accountant-partidor. Inheritance substitutions can also be included.
What happens if there is a will or not?
- If there is a will, it is a testate succession. It is necessary to go to the notary to obtain an authorised copy of the will.
- If there is no will, it is an intestate succession. It would be necessary to go to the Notary Public of the notarial district corresponding to the habitual residence of the deceased in order to execute the Act of Declaration of Intestate Heirs.
The legitimate share is the portion of assets that the deceased cannot dispose of because the Law has reserved it for certain heirs, called forced heirs or legitimated heirs. The reserved portion is intangible. If the testator has left a person assets that may affect the reserved portion, this will lead to its reduction. We can find the legitimate share of children and descendants, that of parents or ascendants and that of the widowed spouse. The unmarried partner is not equated to the spouse for the purposes of inheritance and is therefore considered as a third party.
Acceptance and repudiation of inheritance
Acceptance is a voluntary, free and individual act. The inheritance is accepted or rejected in its entirety; partial acceptance or renunciation is not possible, neither in instalments nor conditionally. Acceptance with benefit of inventory is possible.
Repudiation or renunciation of the inheritance cannot be partial or conditional.
The renunciation of the inheritance must be express and made in a public deed like any renunciation of rights.
Ineffectiveness or nullity of the will
There are two groups of causes of nullity of the will.
1.- The so-called general causes of nullity, as they affect the will considered as an indivisible organic whole and are those referring to capacity, consent, and the essential solemnities for its validity.
2.- And the causes of partial nullity, which only give rise to the ineffectiveness of the clause that contravenes it, the rest of the will remaining valid.
3.- The nullity action may be brought by any of the heirs or the executor.
4.- The action for absolute nullity is imprescriptible.
5.- The action for relative nullity can be brought within 5 years from the death of the testator.
6.- The action must be brought before the Court of First Instance corresponding to that of the habitual residence of the testator.
The partition of the inheritance
The partition of the inheritance is the act that puts an end to the community of heirs by means of the distribution among the co-heirs of the ownership of the assets of the inheritance.
a.- The partition can be done in a private document or in a public document. It is recommended to do it in a public deed if there is real estate for easy registration in the Land Registry.
b.- An inventory and valuation of all the assets must be carried out and the debts of the inheritance must be determined. In order to determine the inheritance estate, donations that can be collated must be taken into account.
c.- The partition may be carried out by common agreement by all the heirs or, if there is an accountant-partidor, this may be done by the latter.
d.- If there is no will, no accountant-partidor appointed therein or if the office is vacant, the Court Clerk or the Notary, at the request of heirs and legatees representing at least 50% of the estate assets, and with the summons of the other interested parties, if their domicile is known, may appoint a proxy accountant-partidor. The partition thus carried out shall require the approval of the Court Clerk or the Notary, unless expressly confirmed by all the heirs and legatees.
e.- If it is not possible to carry out the partition in any of the above cases, the corresponding judicial inheritance division procedure must be filed, initiated by lawsuit.
It is granted by operation of law, when the testamentary heirs are missing in whole or in part.
The order of call to succession is as follows: 1- Children or descendants; 2- Parents or ascendants; 3- Widowed spouse; 4- Siblings; and 5- State.
Right of representation in intestate succession
This is the right of a person’s relatives to succeed him/her in all the rights that he/she would have had if he/she had lived or had been able to inherit. It will always take place in the straight descending line.
Inheritance is a complex matter with many nuances that can cause problems if not handled properly and professionally from the outset. Thanks to our specialisation in this area, our law firm Winkels Abogados can advise you on the whole process and its formalities in our law firm.
Our extensive training in law and many years of professional experience in the legal profession enable us to guarantee excellent guidance, considering each situation individually in order to advise you in the most effective way possible.