Succession Law

When someone dies, one or several persons have to take charge of his rights and obligations. the state of a decedent comprises not only all kinds of property and rights owned by him, but also his debts and obligations. The succesion law determines the destiny of all properties and patrimonial relations of the decedent, whether active or passive. The succesion can take place by virtue of an express appointment. The succession can be universal (all the rights and obligations and the heir is the universal successor) or singular (only succeeds to the rights of the decedent ina single right. They are called legaletees.) THE HEIR:

is the universal successor to the entire rights and obligations of the decedent which are subject to be transmitted. The heir can be appointed by the decedent or by the law. Here we note that the Spanish law admits the possibility to appoint in testament a person who shall receive the inheritance when the appointed heir dies. When there are several heirs to the decedent, they shall inherit as co-heirs and each of them becomes an undivided owner of the effects of the succession for the part or portion coming to him. Acceptance of the inheritance: but the heir only acquires his position as such from the moment he accepts the inheritance. When the person called to the inheritance accepts it, he acquires the right from the death of the decedent. The acceptance of the inheritance is not only retroactive but also pure, indivisible and irrevocable. The main effect of the acceptance of the inheritance is the acquisition thereof and the assumption of the position as heir of the decedent. The benefit of the inventory: in order to limit this liability, the heir has the possibility to ask for the enjoyment of the “benefit of inventory”.

If the heir gets the benefit of inventory he shall be liable for the charges of the succession only to the value of the effects of the inheritance. In this case, his own patrimony shall not be affected by the debts, legacies and charges of the succession. The heir who wishes to enjoy the benefit of inventory has to make a formal statement in this regard before a Notary Public. The term to ask for the benefit of inventory varies depending on if the heir has the assets of the inheritance in his possession or not. He shall make the request for the benefit of inventory or for deliberation within ten days from the day on which he has had knowledge of his condition. TESTAMENTARY OR VOLUNTARY SUCCESSION: THE WILL. THE LEGITIME: The Civil Law grants everybody the possibility to establish who shall inherit and the way in which he wants to be suceeded. When someone voluntarily decides his succession we talk about testamentary or voluntary succession. -Testament or will: A testament is a unilateral act because only the testator makes the disposition of his patrimony.

A testament is also a personal act, in the sense that only one person dispose of his assets by testament and that ist formation cannot be entrusted to third parties. However, this does not prevent the possibility to entrust to a third party the distribution of the sums that the testator leaves in general to determined groups (charities, to the poor…) Testaments are also formal acts. Testaments shall only be valid if executed in the form required by law. .capacity to testate: anybody can testate unless expresly prohibited by law: minors under fourteen years cannot make a valid testament and persons permanently or accidentally out of their rights minds do not have capacity to testate. A person incapacitated can make testament if the decision declaring his incapacitation does not contain a statement about his capacity to testate. .kinds of testaments: the Civil Code differentiates between common and special testaments depending on if they are made in normal or special circumstances.

Common or ordinary testaments have general requirements of form and can be used by anybody having sufficient capacity to testate. Special testaments have more or less formal requirements depending on the case and can only be used by persons under special circumstances. They can be olographic or closed: olographic testaments are those entirely written dated, and signed in the handwritting of the testator. They can be executed by persons of legal age. The person with whom such a testament has been deposited has to present it to the Judge as soon as he knows of the death of the testator. The Judge shall open the olograpih testament, sign all ist pages and verify the identity of the testator. Open testaments are those authorised in front of a Notary Public. The Notary has to certify that he knows the testator or has duly identified him, and that he believes that the testator has sufficient capacity to testate. The testator has the right to read the will himself. In any event, the Notary shall read it aloud so that the testator can declare it if conforms to his will. If the open testament is declared null because the formalities established for the execution are not followed, The Notary shall be liable for damages in case the fault arises from his malice or ignorance.

A close testament has to be writing, it shall be signed by the testator at the end and if its written by a mechanical mean the testator shall sign all pages. The testament shall then be introduced in an envelope, which shall be closed and sealed, and giving to a Notary Public. .The executors: in the testament, the testator may to appoint one or several executors that shall carry out the directions and requests of the will. The testator may appoint one or more executors. Successively means that one person should be the executor in case a prior person is not, because he did not accept or did not have the necessary capacity. The executor who does not accept the officer or renounces without justified cause, shall lose what the testator might have left to him unless he had a right to legitime. Finally we have to note that the executor´s office is temporary, and the law established time limit for the executors to carry out their job. THE LEGITIME:

The law established who should receive part of the inheritance, and the testator is forced to follow such rules. It´s the portion of the assets which the testator cannot dispose of because they are reserved by the law for the legitime heirs. Article 807 CC provides who are the legitimate heirs for Spanish Civil law: children and descendants with respect to their parents and ascendants, parents and ascendants with respect to their children ans descendants and the widower or the widow in the manner and extent established in the Civil Code. .Legitime of children and descendants: consist on two thirds of the assets of the inheritance.

Of those two thirds, one third has to be equally distributed among the children or descendants (short legitime). The other Third, the testator can give to any of his children or descendants. .Legitime of parents and ascendants: if the parents or ascendants are the only ones with a right to legitime, their legitime portion shall be of one half of the assets of the inheritance. .Legitime of the widowed spouse: always consist of a usufruct. If the widowed spouse is only one with a right of legitime because there are not descendants, nor ascendants, he shall have the right to the usufruct of two thirds of the inheritance. The Code is not generous with the widowed spouse and the portions to which a usufruct is granted to them are quite small. LEGAL SUCCESSION OR SUCCESSION AB INTESTATO:

A person dies intestate when he dies without making a will, without validly leaving something to testify his wishes with respect to the disposal of his state after his dead. Legal cases in which takes place are: when there is no will, when the will does not include all the assets of the decedent, when the heir is incapable to inherit and when the heir dies before the testator. When the decedent has not appointed an heir, the law presumes who would have be appointed, for it is understood that the generality of persons would like their close relatives to succed them. On the firts hand the proximity of the family relationship is determined by the number of generations. Each generation constitutes one degree. The series of degrees form a line, which might be direct or collateral. A direct line is constituted by series of degrees of persons descending one from the other. A collateral line is constituted by the series of degrees between persons who do not descend one from another but who come from “common trunk” .Order of the legal successions:

descendants (it is presumed that anybody dying without testament would like his children to inherit first. For example: if the decedent had two children they shall receive half of the state each. If the decedent had any children who died before him and those children had descendants in their turn, these latter shall take their place. These means that in case of grandchildren and other descendants, the estate shall be divided “per stirpes”, each group of brothers receiving what would have corresponded to their dead father. Ascendants: If the decedent have not children or descendants, he shall be inherited by his ascendants. The father and the mother shall inherited in equal shares and if only one of the parents is alive, he shall inherit everything. If the parents of the decedent are not alive, the nearest ascendants in degree shall inherit Spouse: Lacking descendants or ascendants their inheritance shall go to the spouse of the decedent unless they were judicially or the facto separated. Collaterals: if there are not descendants, ascendants or spouse, their sons shall inherit with preference to other collaterals. The State: if there are not descendents, ascendants, spouse or collateral relatives up to the fourth degree, it shall be for the State to inherit.