Wills in Spain: how to protect your inheritance and avoid legal errors
What is an inheritance?
La The heritage It is made up of the set of assets, rights and obligations that belonged to a person who has died and that do not expire with his death, as established in the art. 659 CC.
Some legal relationships that are extinguished with death are:
- Because they are inherent to the person, fundamental rights and those of personality: right to life, freedom, honor, privacy, self-image, marriage (art. 85 CC), parental authority (art. 169 CC), alimony (arts. 150 and 152 CC), suffrage, nationality and the right to public service.
- Because it has a very personal character, the employment or construction contract (art. 1595 CC), the company (arts. 1680 and 1700 CC), the bailment (art. 1742 CC, made in consideration of the person of the bailor), the deposit (taking into account the provisions of the art. 1778 CC), the life annuity (art. 1808 CC), the real rights of usufruct (art. 513 CC), use and habitation (arts. 525 and 529 CC) and optional rights, such as the purchase option or trial and withdrawal .
Moreover, They do not become part of the inheritance to be special succession cases: The noble titles, rural and urban leases and rights over pharmaceutical or tobacco establishments, among others.
What is a will?
The will is, as established in the art. 667 CC, the unipersonal legal act through which a person, known as a testator, expresses his will regarding the distribution of his assets and rights after his death.
It is important to highlight that the will is a personal and individual act, and is expressly prohibited in the art. 669 CC joint or joint wills, that is, two or more people cannot make a will in the same act.
Who CANNOT make a will in Spain?
According to art. 663 CC, people cannot make a will under 14 years (minors may not make a will in a holographic will) or a person who cannot form or express his or her will at the time of making the will.
Types of wills in Spain: common and special, which one is best for you?
The will can be common or special: The common can be holographic, open or closed.
in the will holograph (art. 678 CC), the testator write for yourself, the requirements being those established in art. 688 CC.
in the will open (art. 679 CC), The testator expresses his last will in the presence of the people who must authorize the act, being aware of what he has.
in the will closed (art. 680 CC), The testator declares that his last will has been contained in the document that he presents to the people who must authorize the act.
will be considered special wills the military (art. 716 CC), the maritime (art. 722 CC) and those made in foreign countries (art. 732 CC).
Is it mandatory to make a will in Spain?
El will is not mandatory, but it is the only valid way to dispose of assets after death, except in regions such as Catalonia and Navarra, where succession agreements and donations mortis causa are admitted, and in Aragon, Balearic Islands and Galicia, where succession agreements are also accepted.
Is there a limit on wills?
You can make as many wills as you need..
However, the last one will be the only one that is valid.
An essentially revocable act, even if the testator provides otherwise, in accordance with art. 737 CC.
What is legitimate?
The legitimacy is regulated in the arts. 806 and ss CC and is defined as the part of the assets that the testator cannot dispose of because the law reserves it to certain heirs, known as forced heirs.
Is calculated on the net value of the deceased's estate, adding collatable donations and deducting debts and charges that are not imposed in the will.
It guarantees that certain close relatives of the deceased, known as forced heirs, have the right to a portion of the estate left by the deceased person.
This concept limits the freedom of the testator to dispose of his assets in their entirety. The legitimate law applies both to inheritances with a will and to inheritances without a will.
Division into categories
It's divided in two categories: the legitimate short or strict and the legitimate long or wide.
The strict legitimate corresponds to the third of the inheritance that must be allocated to children and descendants.
On the other hand, the broad legitimacy includes the third of improvement, which the deceased can use to benefit his or her children or descendants if he or she so wishes.
The testator can only deprive forced heirs of their legitimate inheritance in specific cases established by law, mainly for:
- Having denied, without legitimate reason, food to the father or ascendant who disinherits him.
- Having mistreated him in action or seriously insulted him in word.
Who are the forced heirs?
Decendents
Children and descendants have right to two thirds of the hereditary assets as legitimateIn addition third improvement.
In case of death of a child, Its descendants have the same right that would have corresponded to them.
En absence of children and descendants, Parents and ascendants have the right to half of the hereditary assets, that It is reduced to one third if they attend with the spouse or descendant of the deceased.
La parents' right is divided equally between both, and in the event of the death of one of them, it corresponds to the survivor.
Widowed
El A widow or widower becomes a forced heir with the right to partial usufruct over the hereditary assets, not to the property.
The part of the inheritance that corresponds to him varies depending on who he is with in the succession: if he has children or descendants, he has the right to usufruct of the third destined for the improvement; If it is with parents or ascendants, he has the right to usufruct of half of the inheritance; and if it is with an heir designated by the testator who is a third party, he has the right to usufruct of two thirds of the inheritance.
Protection of the legitimate
The intangibility of legitimate rights is a fundamental principle in the field of inheritance law that seeks to protect the rights of forced heirs, also known as legitimate.
This principle establishes that the testator cannot limit qualitatively or quantitatively what the legitimators must receive as legitimate.
Qualitative intangibility
Regarding qualitative intangibility, The testator is prohibited from assigning assets or rights with liens, charges or substitutions that affect the legitimate rights of forced heirs.
Any encumbrance, condition or prohibition imposed to the detriment of the legitimate property is considered void, except in exceptional cases such as the usufruct of the widower or the fiduciary substitution related to the improvement of the property. art. 824 CC.
Quantitative intangibility
On the other hand, the quantitative intangibility It guarantees that the testator respects the amount of the legitimate ones.
In the event of damage to the legitimate interest, the legitimators have at their disposal quantitative defense actions such as the action to supplement the legitimate interest and the action of reduction.
The latter makes it possible to reduce testamentary provisions that harm the legitimate due to being ineffective or excessive, whether in the face of legacies, donations or other testamentary provisions.
Legitimate complement action
The legitimate supplement action, also known as “legitimate supplementary action”, is regulated in the art. 815 CC.
This action allows the forced heir who has received less than the legitimate amount that corresponds to him according to the law, to request the necessary complement to reach said amount..
Active legitimation
The active legitimacy to exercise this action falls on the heir who has received some property attribution from the deceased, whether by inter vivos act or mortis causa, and that it considers that said allocation is insufficient to cover its legitimate portion.
passive standing
On the other hand, passive legitimation It is directed towards the co-heirs who have received their legitime by any title (whether donation or will) and also against the hereditary community before partition.
It does not apply against those who have renounced the inheritance.
statute of limitations
As for the statute of limitations, there is some debate about it.
En general, the legitimate complement action is considered to be a personal action and, therefore, is subject to the limitation period established in the art. 1964. 2 CC, currently set at 5 years.
What happens if there is no will?
In this case, the law establishes that the forced heirs will receive the inheritance first, following the order of priority of the art. 913 CC: the children or descendants and, if none of these exist, the ascendants will inherit, followed by the spouse, siblings or relatives and, lastly, the State.
To determine whether or not a will exists, one must Obtain a Death Certificate Civil Registry.
With this document in hand, A certificate can be requested from Registry of Last Wills and Testaments to verify the existence and validity of any will left by the deceased.
RRYP Global, lawyers of Family right.
