Successions: Wills, Inheritances and Legacies

Law of Successions

The law of successions is the branch of the legal system that regulates, within private law, mortis causa succession. It determines what will be the destination of assets once the deceased passes away.

That is, who will succeed us in all titles, rights, expectations of rights and all legal relationships of a person, both active and passive, after the moment of death.

Intestate Successions (Without Will)

Declaration of Heirs

A will is the act by which a person disposes of the destination of all their assets, rights and expectations of rights, and which is valid from the moment of their death.

When a person dies without having made a will, it is necessary to process the declaration of heirs to determine who are the legal heirs according to the law.

Cases Requiring Judicial Declaration

The judicial route will also have to be used if:

• A will is declared null by the courts
• Case of premorience of an heir if there is no planned substitution
• Case of valid will with legacies without heir

Wills

Common Types of Wills

Open Will

Granted before a Notary. It is the most typical and recommended will. The testator expresses their last will before the Notary, who elevates it to a public deed.

Advantages:

• Legal security (the Notary verifies the testator's capacity)
• Professional advice
• Registration in the Registry of Last Wills
• Difficult to challenge

Closed Will

Also granted before a Notary, but delivered in a written and signed document by hand or typewritten or written by a third party, but also signed.

The content remains secret until the testator's death.

Holographic Will

Not granted before a Notary. Must be written entirely by hand by the testator, dated and signed.

Requirements:

• Of legal age (not valid for minors under 18)
• Written completely by hand
• Dated with day, month and year
• Signed by the testator

Disadvantages:

• Greater risk of loss or destruction
• Possible interpretation problems
• Needs judicial verification after death
• 5-year deadline for verification from death

Special Wills

• Maritime will: Granted on board a vessel
• Military will: Granted by military personnel in campaign
• Foreign will: Granted before Spanish consular authorities

Living Will

It is a declaration regarding instructions on medical treatments and the destination of your body and organs, in case of being in a situation where you cannot express your will for health reasons.

Also called advance directives document.

Legitimate Portions

It is that portion of the inheritance that the law has reserved for certain people (forced heirs), and that when making a will or opening an intestate succession, cannot be freely disposed of.

Forced Heirs

In the Spanish Civil Code, forced heirs are:

1. Descendants (children and descendants)
2. Ascendants (parents and ascendants)
3. Surviving spouse

Amount of the Legitimate Portion

• Descendants: 2/3 parts of the inheritance (1/3 strict legitimate + 1/3 improvement)
• Ascendants: 1/3 if there are no descendants (1/2 if there is no surviving spouse)
• Surviving spouse: Variable usufruct depending on who it concurs with

Legacies

It is that part of the estate that the testator cedes to a person (legatee), who is not a freely designated heir nor forced by law, guaranteeing that they will receive in any case that part.

The legacy can be of:

• A specific asset (a home, a vehicle, jewelry)
• A sum of money
• A right (usufruct, for example)

Donations

The act of donating implies giving a material asset without obtaining consideration and changing its legal ownership in favor of the donee (person who receives and accepts the donation).

Types of Donations

Inter Vivos Donations

Made during the donor's lifetime with immediate effects.

Mortis Causa Donations

That produce effects after the donor's death.

Other Modalities

• Modal or onerous donations: With burden or condition for the donee
• Remuneratory donations: In payment for services rendered
• Indirect donations: Made in a non-direct way
• Donations with reservation of power to dispose: The donor reserves the right to dispose of the assets
• Donations with reversion clause: The assets return to the donor if a condition is met
• Donations of bare ownership with usufruct reservation: The donor retains use and enjoyment

Usufructs

It is a legal figure that allows a person (usufructuary), without having real ownership of the asset, to use the asset and receive its fruits (rents, benefits...) based on the usufruct right.

Types of Usufruct

Temporary Usufruct

Established for a determined period of time.

Life Usufruct

That lasts until the usufructuary's death.

Usufructuary Rights

• Use the thing (ius utendi)
• Receive the fruits (ius fruendi)

Usufructuary Obligations

• Conserve the thing
• Perform ordinary repairs
• Pay taxes and charges

Inheritance Tax

It is a progressive tax that taxes mortis causa transfers (inheritances and legacies).

Characteristics

• There is no fixed percentage
• The higher the value of the inheritance, the more is paid
• Varies according to the Autonomous Community
• Depends on the degree of kinship with the deceased
• Takes into account the heir's previous assets

Important Information

• Who pays: Heirs and legatees
• Payment deadline: 6 months from death (extendable)
• Prescription: 4 years and 6 months

Advice on Inheritances and Successions

At IURIUM CONSULTA we are lawyers expert in Succession Law. We can advise you on any doubt you have in matters of:

• Inheritances
• Wills
• Legacies
• Donations
• Usufructs
• Inheritance tax
• Declaration of heirs
• Partition of inheritances
• Succession conflicts

Contact us for proper advice on succession matters.