An inheritance is the transmission of the assets, rights and debts of a deceased person to their heirs. In Cantabria the steps are: accept or disclaim the inheritance, determine the heirs (with a will or through a declaration of heirs before a notary), settle the Inheritance Tax within the six months following the death and distribute the assets.
When a person dies, it becomes necessary to determine what will be done with the estate that person may have left. In this respect, it should be remembered that the law is very strict in the treatment of that distribution of assets, which is why it is necessary to have an adviser who fully understands the matter.
At BBmabogados we are experts in everything relating to succession law, from when a person dies leaving a will, to when the death occurs without any document expressing their last wishes. So let us look at each of these cases.
What is a succession?
First of all, it is essential to understand what a succession is. This is the institution by which the transmission of the estate, rights and obligations that a deceased person has left is carried out. The succession may be ab intestato, that is, the one that arises without a will but is governed by the law.
You can also check whether it is possible to disclaim an inheritance and what the legal consequences of doing so are.
It may also be testamentary, the one that reflects the wishes of the deceased through a will.
Successions with a will in Santander
The best way to process an inheritance is by leaving a will; therefore, when there are assets that might remain after our physical passing, it is prudent to leave a document drafted in which our wishes about the destination of our assets are made clear.
HOW TO MAKE A WILL?
The first thing is that this is not just a simple document; it must be granted before a notary’s office or meet the legal requirements in order to be valid. In any case, it should be borne in mind that for its granting the following requirements must be met:
– The grantor must be at least 14 years of age.
– In addition, they must have full discernment of their acts, that is, they cannot be affected by any mental condition that impairs their sound judgement.
– It must have an express indication of the date and time it was granted, as well as bearing the grantor’s signature.
– The document must be duly drafted, preferably by a lawyer, and presented to the notary who will attest to its content (if it is not sealed) and give a certain date to its granting. It should be remembered that a will can also be granted before witnesses, but the notary’s-office option will always be preferable.
THE INVENTORY OF THE ASSETS
When making the will, it is necessary to first draw up an inventory of one’s own assets. This is known as the inherited estate and it must make a precise description of each and every one of the person’s assets, from their bank accounts to their movable and immovable property. It must also mention the liabilities (outstanding debts and obligations).
In turn, this inventory must include the corresponding valuation, that is, the value given to each of the assets listed. It is important to remember that this valuation can be carried out on one’s own account, but in order to avoid possible challenges it is prudent for it to be carried out by a duly qualified expert.
Likewise, the will must state how the inherited estate will be distributed. In this case, the distribution can be made according to each specific asset or according to a proportion of them, as is the case with distribution by percentage.
THE RESERVED SHARE MUST ALWAYS BE BORNE IN MIND
In the case of an inheritance, it should be remembered that there is a portion of the inheritance that will always correspond to certain qualified relatives or forced heirs, that is, those whom the law states must always receive a percentage of the inheritance.
It is necessary to remember that special care must be taken to respect the reserved share (legítima), since failing to do so could cause the partial nullity of the will. Broadly speaking, it should be noted that the reserved share corresponds to the children, the parents and/or ascendants and the spouse. Nevertheless, the list is much broader, so do not hesitate to contact us for more information.
CAN A WILL BE VOIDED? SEE THE REASONS
On this point, it is important to note that any person in the position of legal heir can challenge the will. Nevertheless, the reasons for doing so must be valid from a legal standpoint.
Among the most important reasons, we find the following: that the will has errors, that is, that it was granted in breach of the provisions of the law. Similarly, if the document by which the will is granted is not presented following the formalities laid down in the legislation.
If these errors are not remedied, the will lacks validity and legitimacy.
Another possibility for a will to be considered null is if it is proven that the testator lacked the necessary capacity to grant it at that moment; capacity is assessed at the time of granting, with the support measures that may be appropriate in each case. A will will likewise be considered null when the testator is under 14 years of age.
On the other hand, if it is established that the testator was deceived or coerced at the time of drafting and ratifying the will before the notary.
If you find yourself in any of these situations, our solicitors are qualified to guide you through the annulment process.
Successions without a will in Santander
When a person dies without a will, the procedure for distributing their assets is more complex, but nothing that a good specialist in successions cannot resolve. So, a lawyer specialised in succession law must proceed to bring together all the forced heirs of the deceased and have them make the corresponding declaration as heirs before a notary’s office.
The aforementioned document must be accompanied by the DNI (identity document) of the deceased, as well as the death certificate, the family record book and the appropriate documentation proving the heir’s relationship to the deceased.
Once such documents have been received, and after 20 working days (waiting time for the possible appearance of other heirs), the notary will draw up a deed recording the qualified heirs, and these must pay the relevant inheritance taxes.
In any case, it should be remembered that this procedure needs a guide or adviser who knows each stage of the process in detail; otherwise, the distribution of assets could be delayed unnecessarily.
What happens if there is no agreement? The succession lawsuit
If the heirs cannot reach an agreement, it will be the judge who decides how to carry out the division of the inheritance. This will be possible after a succession lawsuit, whose purpose is to divide the inheritance among the heirs when they cannot voluntarily reach an agreement.
It is worth highlighting that any co-heir or legatee is entitled to start this process.
START OF THE TRIAL STAGE
It is started by application of any of those entitled, duly signed by a solicitor and a court representative (procurador). In this respect, it is worth noting that the application may contain the simple request to divide the inheritance and, if deemed appropriate, the intervention of the estate and the drawing up of an inventory of the assets and rights can be requested as a precautionary measure.
HOLDING OF THE MEETING AND APPOINTMENT OF THE ACCOUNTANT-DIVIDER
Having first drawn up the inventory of the assets, the court will convene a Meeting, at which the heirs, legatees, creditors (if determined) and the Public Prosecutor are summoned, in those cases where there are minors, persons with a disability with support measures, or absent heirs whose whereabouts are unknown.
The purpose of the Meeting is to appoint an accountant-divider (contador partidor) and experts, if necessary, to proceed to value the assets. In principle the appointment can be made by agreement, but if this is not possible, it will be done by lot.
Once the accountant-divider and the experts have been appointed, they will proceed to draw up the inventory (if it has not been done before). To this end, the documentation and other elements making up the inherited estate will be handed over to them. On the basis of that inventory, they will carry out the valuation, settlement and division of the inheritance.
PRESENTATION OF RESULTS
The accountant-divider will present the results in writing, within a maximum period of two months from the start. That document must contain the list of assets, their valuation and their division and allocation to each of the participants. These operations may be approved or rejected by the heirs and legatees within a period of ten days. If they agree, the court will approve the operations and order their formalisation.
If there is opposition, the court will summon the accountant-divider and the parties to reach an agreement. If an agreement is reached, the accountant-divider will proceed to amend the division operations as agreed and they will be approved by the court. If no agreement is reached, the judge will hear the parties, admit the relevant evidence and process the oral hearing (juicio verbal).
The case of the vacant estate (herencia yacente) in Santander
The vacant estate is simply the situation in which the estate of the deceased person finds itself, from the moment death occurs (opening of the succession) until the acceptance or rejection of the inheritance by the heirs materialises. In other words, it is the situation of the estate without an owner.
Special cases: The inheritance from grandparents to grandchildren
In those cases where the grandparent dies, but their son or daughter had died before them and a grandchild survives, the latter has inheritance rights over this estate. This scenario is called the right of representation, whereby the grandchildren are entitled to inherit the share of the inheritance that their father or mother (already deceased) would have inherited had they been alive.
Inheritance under benefit of inventory. What does it consist of?
This is a way of accepting the inheritance, whereby the heir answers for the deceased’s debts only up to the extent of the inherited estate, thereby protecting themselves from inheriting unforeseen obligations and avoiding answering for the inheritance’s debts with their own property. After paying the debts, the heir receives only the part that remains, if any. To accept the inheritance under benefit of inventory, a declaration must be made before a Notary.
Our solicitors can assist you during this laborious process, which is well worth it in order to protect your assets.
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