We explain how to process inheritance in Spain in 2023. Previously, being a beneficiary of an inheritance used to be a valuable source of income, both economic and real estate. However, during the economic crisis, this has changed dramatically and has become a real headache.
In this article, we will review what it implies to accept or reject an inheritance, who are considered forced heirs, and whether it is possible to renounce an inheritance.
When a client faces the decision to accept or not an inheritance, the first thing explained to them is that in Spain, by accepting an inheritance, both the assets and the debts it entails are assumed. This means that if the debts exceed the value of the inherited assets, it may be more convenient to renounce the inheritance. Nevertheless, this decision is entirely personal. During the economic crisis, it has been common for people to pass away leaving debts that now pass to their heirs.
To process inheritance, if the debts exceed the assets, the heir must personally assume the payment of such debts, unless the inheritance is accepted for the benefit of inventory, as will be explained later, in which case the heir will only be responsible for the hereditary debts up to the limit of the inherited assets.
"To renounce an inheritance directly, it is necessary to go to a notary and present the corresponding renunciation."
In the processing of an inheritance, one of the most frequent questions is what happens to the share of the inheritance if it is renounced. In this case, what is established in the will must be taken into account.
If the deceased has indicated in their will that the succession rights must pass to another family member, for example, if the substitution of heirs in favor of their descendants in case of renunciation is foreseen, it will be the descendants of the heirs who inherit, deciding in turn whether to accept or not the inheritance.
To process inheritance, if there is a will but this possibility has not been established, the direct renunciation of the inheritance will cause the share of the renouncing heir to be distributed among the other co-heirs.
On the other hand, in the case of intestate succession to process inheritance (when there is no will), if the closest relative renounces the inheritance, the relatives of the next degree will inherit. This means that, in the absence of a will, if all the heirs renounce or if the only heir renounces, the relatives of the next degree (their children) will be the ones to inherit.
Therefore, for example, to process inheritance, if the grandfather dies and the goal is for the debts not to affect the descendants, both the children and the grandchildren must renounce the inheritance. In the event that the children are minors, the parents will need judicial authorization to renounce on behalf of their children.
Another possibility, as mentioned earlier, instead of renouncing the inheritance, is to accept it for the benefit of inventory, which implies that only the debts will be paid up to the extent of the deceased's estate. This prevents, if the deceased's debts exceed the value of their assets, the creditors from also seizing the heir's assets. The acceptance for the benefit of inventory must be carried out before a notary.
To process inheritance, when a person dies, it is necessary to initiate the corresponding administrative procedures for the inheritance process. In relation to the management of the inheritance, it is important to consider certain aspects:
First, it is essential to request the Literal Certificate of Death at the Civil Registry威而鋼
g>, which certifies the death of the person.
Once the Literal Certificate of Death is obtained, the Certificate of Last Wills is requested from the Ministry of Justice (form 790). This certificate provides information on whether the person left a will and the notary before whom it was granted.
In the event that a will exists, a copy of it must be obtained from the corresponding notary, whose name appears in the Certificate of Last Wills. On the other hand, if there is no will, the Declaration of Heirs ab intestato is carried out before a competent notary. The selection of the competent notary is based on the last domicile or habitual residence of the deceased, the place where the majority of the assets are located, or the place of death, as preferred by the applicant.
It is important to consider the payment of inheritance taxes, although regulations may vary in each autonomous community. Generally, there is a period of 6 months from the death to settle these taxes. In addition to the inheritance tax, the municipal capital gains on real estate must also be settled, within the same 6-month period.
Furthermore, it is necessary to proceed with the distribution of the assets among the heirs. If there is agreement among them, it can be carried out in the presence of a notary through the public deed of division and allocation. In the absence of agreement, it will be necessary to resort to the court, unless the requirements established in the Law of Voluntary Jurisdiction of July 2, 2015, are met, which allows the distribution to be carried out through a notary in exceptional cases.
Making a will is a relatively simple procedure and the safest way to ensure that the deceased's wishes are fulfilled after their death. If a person dies without leaving a will, the law will determine who the heirs are. To officially establish the succession title of these heirs, a procedure known as Declaration of Heirs must be carried out before a competent notary, taking into account the last domicile or habitual residence of the deceased, the place where the majority of the assets are located, or the place of death, as appropriate.
The legitimate portion in an inheritance, as established in the Civil Code, refers to the part of the assets that the testator cannot dispose of, as they are reserved by law for certain heirs, known as forced heirs.
To process inheritance, the legitimate portion is untouchable, meaning that the testator cannot impose burdens, conditions, or substitutions of any kind on it.
The only way to deprive the forced heir of their legitimate portion is by dis-inheriting them, provided that the causes established in the Civil Code are met.
Below, we leave you an article of interest that discusses "How to Disinherit a Child".
Renunciation during the lifetime of the testator: The forced heir cannot renounce the legitimate portion while the testator is alive; any renunciation made during this period will be null. The Civil Code declares as null the agreement between the testator and their forced heir, as well as any renunciation agreed upon before the opening of the succession.
Renunciation of the legitimate portion after the death of the testator: On the other hand, the renunciation of the legitimate portion made after the death of the testator, once the succession has opened, is valid. However, it requires that the renunciation be made in a public document so that it is clear, absolute, and explicit, and takes effect.
According to Article 807 of the Civil Code, forced heirs are the children and descendants in relation to their parents and ascendants. This definition includes both biological and adopted children, without any discrimination between them. In the absence of children of the testator, the parents and ascendants are considered forced heirs in relation to their children and descendants. Additionally, the surviving spouse of the testator has the right to a partial usufruct of the inheritance.
- Children: Children have the right, as the legitimate portion, to two-thirds of the hereditary assets of the father and mother. In the event that one of the children has died, the descendants of that child have the same rights that would have corresponded to them. At this point, you should also consider how to avoid problems in the inheritance among siblings. We leave you an article to learn what to do in these cases: "How to Avoid Inheritance Problems Among Siblings".
- Parents and ascendants: Regarding the legitimate portion of parents and ascendants, Article 809 of the Civil Code establishes that it constitutes half of the hereditary assets of the children or descendants. However, if the parents or ascendants concur with the surviving spouse, the amount of the legitimate portion is reduced to one-third of the inheritance.
- Surviving spouse: In relation to the legitimate portion of the surviving spouse, Article 834 of the Civil Code establishes that the surviving spouse, not legally or factually separated, has the status of a legitimized heir and has the right to a partial usufruct over the inheritance, regardless of the existence of descendants or ascendants.
To process inheritance, the calculation of the legitimate portion varies depending on the presence or absence of descendants or ascendants. If it concurs with children or descendants, the surviving spouse has the right to the usufruct of the third intended for improvement. If there are no descendants and only concurs with ascendants, the spouse has the right to the usufruct of half of the inheritance. In the event that there are no descendants or ascendants at the time of death, the surviving spouse has the right to the usufruct of two-thirds of the inheritance.
To calculate the legitimate portion, the value of the assets left by the testator at the time of the allocation of the assets is taken into account, not at the time of their death. The determination of the legitimate portion requires performing computation and imputation operations.
Computation of donations: This involves adding to the estate (assets minus debts) all donations made by the testator during their lifetime to obtain the value of the hereditary estate.
If the estate is not sufficient for the legitimized heirs to receive their legitimate portions, the donations will be considered ineffective and must be reduced so that the legitimate portions of the forced heirs are not harmed, or the difference must be compensated with money. Donations are not valued at the time of the donation, but at the time of the opening of the succession, that is, at the time of the testator's death.
The process of imputation in donations and legacies aims to determine if these adjust to the corresponding thirds in an inheritance, such as the strict legitimate portion, the improvement, and the free disposal. It is important to differentiate this process from collation, which is carried out when partitioning the inheritance to establish the portion corresponding to the forced heir. However, it is important to note that the testator can waive one or several of the legitimized heirs from the obligation to collate the donations, but cannot limit the imputation of the same for calculating the legitimate portion.
The legitimate portion is divided among the number of legitimized heirs, such as the children, and in the event of the death of a child, their children will take their place. The same happens if a child has been dis-inherited. Donations made to children are imputed to their legitimate third, unless they have been made expressly as an improvement. On the other hand, donations made to third parties are imputed to the third of free disposal, as are donations made to grandchildren when the children are alive.
Before carrying out the reduction of a donation for being ineffective or exceeding the available quota, the imputation to the thirds in which the inheritance is ideally divided must be carried out, that is, the legitimate portion, the improvement, and the free disposal. If a donation in favor of the legitimized heirs exceeds their legitimized quota, the excess is imputed to the third of free disposal, and it is that excess over the third of free disposal that will be reduced.
In Spain, the main legislative source that regulates inheritances is the Civil Code. In its Title III, entitled "On Successions," all the necessary provisions to carry out the succession process are established. However, in addition to the common law applicable to most of the Spanish territory, there are foral rights recognized by various Autonomous Communities that have maintained their own regulation in matters of successions. For example, in Catalonia, it is included in Book IV of the Civil Code of Catalonia the specific regulation on inheritances. Likewise, Aragon, the Balearic Islands, Galicia, Navarre, and the Basque Country also have their own regulation.
According to the common law established in the Civil Code, in its Article 744, "those who are not incapacitated by law may succeed by will or ab intestato." It is expressly prohibited for aborted fetuses and for associations or corporations not permitted by law (Article 745 of the Civil Code) to inherit.
Therefore, all those who do not incur any of the aforementioned prohibitions may be heirs. However, the law establishes certain limitations on the capacity to inherit, requiring that the testator leave their succession rights to their direct relatives, known as "forced heirs" (Article 807 of the Civil Code). The forced heirs are:
- The children and descendants in relation to their parents and ascendants.
- In the absence of the former, the parents and ascendants in relation to their children and descendants.
- The surviving spouse, as established in the Civil Code.
- The law reserves two-thirds of the hereditary estate for the children, known as the legitimate portion.
In the event that there is no will, the inheritance will open intestate, and a procedure for declaration of heirs will be carried out to designate the legal heirs. In this case, the descendants in the direct line will be called first, that is, the children and, in the event of the death of the children, the grandchildren. In their absence, the ascendants, such as the parents and, if applicable, the grandparents, and lastly the surviving spouse will be called.
It is important to note that, in the case of intestate succession, the law establishes that the relative of the closest degree excludes the more distant one. This means that if there are heirs in the descending line, such as children or grandchildren, they will inherit excluding any other direct relative of the deceased.
It may happen that, both in testate and intestate succession, the designated heirs have repudiated the inheritance or have died previously, leaving the testator without a direct heir.
In such a situation, the law establishes in its succession rights that, in the absence of descendants, ascendants, and spouse or if the spouse is not alive, the inheritance will be distributed equally among the siblings of the testator. If the siblings have also died, their children (that is, the nieces and nephews of the deceased) will inherit in their place.
In the event that none of the above can inherit, collateral relatives up to the fourth degree, such as cousins and uncles, will be called. And ultimately, if there is no heir, the State or the Autonomous Community, depending on the case, will become the heirs.
Regarding the distribution of the inheritance, it is important to note that, after the death of the testator, the designated heirs must prepare an inventory of all the assets that will form part of the hereditary estate, including both assets and liabilities.
If there is a will, what is established in that will by the testator will prevail, as long as it does not contravene any legal provision. In other words, the testator's will must be respected for the distribution of the inheritance, as long as the minimum rights of the forced heirs, that is, the legitimate portion, are respected. Therefore, when there is a will, it will indicate how the assets of the inheritance will be distributed and who the beneficiaries will be.
If there is no will, once the hereditary estate is determined, it will be distributed equally among the legal heirs.
"In the event that there is no agreement in the distribution of the hereditary estate, or if a co-heir refuses to carry out the distribution of the inheritance, the heirs interested in doing so have different options to consider:
First, it may happen that the testator themselves have foreseen this situation in their will and have appointed an executor or a partitioner-accountant to assist in the distribution of the hereditary assets. At this point, we leave you more information about "The Role of an Executor in the Processing of an Inheritance".
In the event that this solution has not been foreseen or is not viable, recourse can be had to notarial partition. With the reform of the Law of Voluntary Jurisdiction, it is not necessary to go to the judicial route if the heirs who wish to carry out the partition represent at least 50% of the inheritance. In this case, they can go to a notary to request the appointment of a partitioner-accountant who will be in charge of carrying out the partition. The partition carried out by the partitioner-accountant can be approved by all the heirs and legatees, but if not, the notary's approval will be required.
In the absence of agreement or a sufficient majority to request notarial partition, or if this option is not desired, any heir can initiate a judicial procedure for the division of the inheritance.
Despite a will having been granted and the testator's will must be respected, circumstances may arise in which the testamentary provisions contravene current legislation, leading to the challenge of the will. This can occur in the following cases:
- When the legitimate portions of the forced heirs are not respected.
- When one of the heirs is dis-inherited without a justified cause.
- When one of the forced heirs is omitted in the will (preterition).
- When the will has formal defects.
- When the testator lacks capacity to make a will or does so under coercion or intimidation according to Article 663 of the Civil Code.
As for the time limit to challenge a will, it is generally 5 years from the death of the testator or from when the content of the will is known. However, depending on the cause motivating the challenge, there may be another time limit, such as in the case of challenge due to dis-inheritance, which, according to the Supreme Court ruling 492/2019, of September 25, appeal 378/2017, has a forfeiture period of 4 years."
