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FAQ about successions and inheritances

This November, we have dedicated our focus to successions and inheritances, an area in which there exists a certain opacity, but which in reality, entails high complexity for several reasons. The foremost reason is the impossibility of asking the person who wrote the will about their intentions.


For the writing of this post, we have compiled the five most frequent questions we have encountered, asked by clients, students, or professional colleagues.


1. What is a succession and how does it start?


If we refer to the Dictionary of the Royal Spanish Academy, we find many meanings for the term succession, but they all have the same common point as they originate from the Latin successio, which implies following someone or something in space or time. In our context, by succession, we understand the reception of the goods of another person as an heir or legatee of them.


From here, we find that the heirs receive, once they have accepted the inheritance, the totality of the goods, rights, and obligations that the person they succeed had, that is, the heirs receive both the properties and the debts of the deceased.


But a succession can occur while the deceased is alive, in which case we would be talking about a donation, or when they have died, in which case we would be talking about a testamentary (with a will) or intestate (without a will) succession.


Given the writing of the article, we focus on the succession mortis causa, that is, of a deceased person, and our starting point will always be the death of the person, for which we must have at hand, and must be the first documentation we should have, both the death certificate and the certificate of last wishes. The first one certifies the actual death and the second one certifies whether the person who has died had made a will or not.


2. Who are considered legitimate heirs?


Regardless of the existence of a will or not, the law clarifies who can be the so-called legitimate heirs and what is the corresponding order of succession, which can vary depending on the applicable legislation.


Thus, legitimate heirs are considered to be the descendants, the ascendants, the spouse, and relatives up to the fourth degree of consanguinity and, in the absence of all of them, the State.


However, not all of them can concurrently inherit at the same time but must do so according to the order set by the law itself, some in substitution of others.


Thus, as stipulated by the legislation in Spain, the succession will correspond firstly to the descending line, that is, the children and their descendants will inherit first, the children receiving the inheritance in equal parts, and the grandchildren and other descendants inherit by representation in the portion that would correspond to their parents.


As an example, if Pablo dies with two children (Alfonso and Antonia), they each receive 50%, but if one of these children dies with two children (Jose and Matilde), the distribution would be: Jose 25%, Matilde 25%, and Antonia 50%.


According to the legislation in Spain, in the absence of children and descendants, the ascendants (parents and grandparents) will inherit, with the parents inheriting in equal parts, and in their absence, the nearest ascendants will inherit.


In the absence of descendants and ascendants, and before the collaterals, all the goods of the deceased will be inherited by the surviving spouse, unless they were legally or factually separated.


In the absence of the above, the succession will start through the collateral line, that is, brothers, nephews, uncles, etc., all this until finding the closest relative within the limit of the fourth degree. In case there is no type of relative, then the Public Administration will inherit.


In particular, in the case that the Catalan legislation applies, there is a change. In this sense, in the absence of descendants, in Catalonia, before the ascendants, the spouse will inherit, and in their absence, the ascendants.


3. How are assets distributed in an inheritance?


This is undoubtedly one of the questions that can cause the most conflicts in inheritance matters. Therefore, we must differentiate between a testate inheritance and an intestate one, that is, whether we have a will or not.


If we have a will, the testator can dispose of the assets and decide who to assign them to, either as an heir or as a legatee. The main difference is that the legatee receives a specific and determined asset, while under the title of heir, a distribution is not necessarily made.


We must also keep in mind that, in any case, we do not have full disposal of the entire inheritance, but in any case, the forced heirs will have a right to the so-called legitimate portion, which is that part of the assets that the testator cannot dispose of because it is a legal reserve for certain heirs. These forced heirs are:


- The children and descendants with respect to the parents and ancestors;

- In the absence of the former, the parents and ancestors with respect to their children and descendants;

- The widower or widow, in the manner set by the Law.


The reservation of the legitimate portion can vary depending on who the forced heir is and can also vary depending on the territory where we may find ourselves, being two-thirds of the inheritance (66%), half of the inheritance (50%) or one-fourth of the inheritance, applying certain rules (for the case of Catalonia).


4. What is a will and what is its importance?


A quite recurrent question is whether to make a will or not. In our view, it all depends on whether the person wishes to express their will in relation to their assets or not, because in the absence of a will, the order predetermined by the Law will be established.


However, the importance of the will lies not only in expressing the will in relation to their assets for when this person is no longer present and the possibility of distributing it or setting a series of conditions for its distribution or assigning a certain asset to a specific person, but also in being able to exclude some of the heirs from the entire inheritance, that is, the law allows us to disinherit an heir, but for this, we must do it within a declaration in a will and within the conditions and causes that have been foreseen in the Law itself.


There are various types of valid wills in our country such as: the holographic will, the open will, the closed will, the military will, the maritime will, the will in a foreign country, the special will for cases of epidemic or, in Catalonia, the joint will.


Each will has its peculiarities and characteristics to be completely valid, so we recommend proper advice for its corresponding homologation and validation.


5. What happens if there is no will?


In case the deceased has not issued any type of will or, having issued it, the will has been annulled by a judicial resolution, in this case, we would be facing an intestate succession, that is, without a will, which means that the order of succession established in the Law itself, whether Spanish or Catalan, must be applied.


In this case, we must go to a notary, specifically the notary corresponding to the last place of residence of the deceased, so that they can make a declaration of heirs, that is, a declaration that the person has died (death certificate) and to start the corresponding succession procedures.


 

These are the five most frequent questions we have encountered and compiled, but, without a doubt, we recommend proper advice and assistance in these types of procedures, to a greater extent, to guarantee the rights of each and every one of the heirs or, in particular, the rights of those who believe they have a right to an inheritance. If you have a case or have more doubts, you can request a day and time on our own website.



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