After the death of a family member, it is time to distribute their inheritance. An inventory of assets and debts that involves different procedures depending on whether the deceased made a will or not, as Legalitas experts point out.
To begin with, each family should know that the law provides certain limitations on the ability to inherit, requiring the deceased to leave their inheritance rights to their direct parents, called “reserved heirs”, who will be: the children and descendants of their parents and ascendants; failing the above, the parents and ascendants with regard to their children and descendants; the widower or widower in the manner and to the extent established by the Civil Code. It should be remembered that with regard to children and descendants, the law reserves two thirds of the hereditary, so-called legitimate, heritage for them.
Problems start when there is no will. On these occasions, the entire inheritance (consisting of property and debts) will open a succession called “Ab intestate” (without a will) in which a procedure for declaring the heirs must be carried out, by which those who will establish the law as heirs.
So, first of all, the lineal descendants will be called to the inheritance: the children, but if they are deceased, the grandchildren will come. If they do not exist, it depends on the ascendants, that is to say the parents and, where applicable, the grandparents. If there are no descendants or ascendants, the heir will be the spouse of the deceased.
However, Legalitas emphasizes that it must be taken into account that, if there is a spouse, even if the heirs are the children or parents as indicated, they will always be entitled to the usufruct of part of the inheritance of the deceased.
What if there are no heirs?
When the deceased does not have children or grandchildren, experts recall that it must be taken into account that, in the present case of intestate succession, the law establishes that the closest relative excludes the most distant, which will imply that if there are heirs in the descending line (children or grandchildren) inherit them to the exclusion of any other direct relative of the deceased.
In cases where there is no heir, the law establishes in their legal rights of inheritance that in the absence of descendants and ascendants, and if there is no spouse or if the spouse is not alive, the inheritance will be distributed equally among the brothers and sisters of the heir. deceased or, if they have died previously, the nephews of the deceased will inherit.
If this was also not a viable option, the next one would be to call collateral relatives up to the fourth degree (cousins and uncles). And in the absence of all of the above, the heir will be the State or the Autonomous Community, as the case may be.
With or without a will?
Concerning the distribution of the estate, Legalitas specifies that upon the death of the deceased, those called upon to succeed must proceed to create an inventory of all the assets that will make up the estate, including assets and debts.
Once the estate has been identified, it must be taken into account that its distribution will be different depending on whether we are faced with an estate with testamentary provisions or if there is no will that regulates the estate.
If there is a will, its provisions will prevail in all cases, unless they contravene a legal provision. That is to say, the will of the testator must be respected to proceed with the distribution of the inheritance, because as long as the minimum rights of the reserved heirs are respected, that is to say the legitimate rights, the testator will be able to dispose of his assets freely.
So, when there is a will, it will indicate how the inherited assets will be distributed and to whom. If there is no will, once the estate is set up, it will be distributed equally among the legal heirs.
What if there is no agreement?
Legalitas explains that when there is no agreement on the division of the inheritance, or a co-heir directly refuses to proceed with the division of the inheritance, it may happen that the deceased himself had foreseen this situation and has named an executor in his will. or a participating accountant to help with the distribution of hereditary assets.
If this is not the case, since the reform of the Law on Voluntary Jurisdiction it is no longer necessary to go to court to obtain the distribution when the heirs who wish to carry out the division correspond to at least 50% of the property. legacy. If this is the case, they can go to the notary and unblock it, requesting the designation of a person who will be responsible for carrying out the partition.
The dividing accountant will carry out the division which can be approved by all the heirs (and legatees), but if all do not confirm it, the approval of the notary will be necessary.
If there is no agreement, no sufficient majority to request notarial distribution or if one does not wish to resort to this option, any of the heirs can initiate legal proceedings to share the estate. .
Contesting a will
Even if you have made a will and there is a duty to respect it and the wishes of the testator, there may be certain circumstances in which the provisions of the will contravene current law, which will give rise to to a challenge to the will. This will happen when:
– The legitimate rights of reserved heirs are not respected.
– When the disinheritance of one of the heirs occurs without justified cause.
– When one of the compulsory heirs has ceased to be named in the will (preterition) (which is not the case in certain regional legislation).
– The will suffers from formal defects.
– When the testator did not have the capacity to make a will or did so due to defects in consent (such as violence and intimidation), as provided for in article 663 of the Civil Code.
Legalitas establishes that, regarding the deadline for contesting the will, in general it is 5 years from the death of the testator or from the moment he becomes aware of the contents of the will. However, depending on the cause motivating said challenge, there is another deadline, such as for example the case of challenges for disinheritance, which was set by the Supreme Court in its judgment 492/2019 of September 25. Resource 378/2017, in 4 years.
