When we set ourselves to make Testament we doubt if it is necessary to go to a notary or we can do it without your assistance. Both are possible, but before making a decision, it is best to know the options you have and the advantages and disadvantages of one and other.
– Kinds of Testament: what it takes to make it
– How much do testament?
– Content and characteristics of the will and testament
– The most frequent Testament: “from one to the other, and then the children.”
– What happens if it is not a testament
– Who are your heirs in the absence of the written will
– Procedures to compensate for the lack of a will
– Accepting or renouncing an inheritance
– Partition of inheritance
– Much is inherited: the inheritance tax
– Legitimate them
. . . . . . . .
Kinds of Testament: what it takes to make it
In addition to some little-used forms (Testament military, maritime, and notarial closed), are two wills that can be made: the Holograph and the open Attorney.
The Holograph Testament: is a testament that the testator makes itself just writing it in his own handwriting, with an expression of the year, month, and day in that it is made. The lack of any of these requirements or the signature of the testator makes it null.
This kind of Testament presents some problems: on the one hand, the lack of technical advice makes frequent the nullity of these wills. On the other hand, it tends to provoke discussions about the capacity of the testator had in doing so. Also, the testator died, the heirs have to follow a complicated procedure to verify the authenticity of the Testament and formalize it, which makes the entire process difficult and more expensive for them.
On the other hand, it is easy to lose the Testament or that a not favoured relative could find it and destroy it, being almost impossible for other heirs prove that it existed. In any case, the Holograph Testament may be useful in exceptional cases of urgency or risk situations. When making a Holograph will remember that it should be written in its entirety by the testator’s handwriting and signed by him, and should be the date (year, month and day). The testator must save the words strikethrough, amended or between lines under his signature.
The notary will open: is almost the only testament that is made today by their enormous advantages compared to other. It’s to put on record the last will, in a public deed before a notary, can benefit the testator advice and Council, and the security that the Testament clauses will be within the law. The notary informs and advises the testator of how can dispose of their property and how to get what she wants. Many are the possibilities offered by the law and the notary will always advise on how to get them and can also inform the tax consequences, still within the strictest confidence.
The intervention of the notary, as an expert who writes the Testament, guarantees that all the legal formalities are met and that the contents of the will be adjusted right, especially to respect the legitimate that then is It refers. Also, the notary is responsible for the conservation of the Testament (since the original is in their power and what is delivered to the testator is only a copy). And gets out, through the General Register of last wills, who will know what the latest testament to death d the testator, maintained during the life of this absolute warranty of secrecy and confidentiality as to the existence of the Testament and in terms of its content was.
What you need: just go to the notary with the national identification document (DNI) and explain how you want to leave the heritage. Depending on the complexity of the Testament, the notary will ask writings of your goods or more information. From these data, the notary shall draw up the Testament written and will proceed to grant without that, today, requiring the intervention of more people, since it is not necessary the presence of witnesses, except in some instances. It is straightforward, and no need to make an inventory of the goods you have.
How much do testament?
The Testament is a document very cheap, taking into account the significance of it and, sometimes, their legal complication. Regardless of how much worth the assets of the testator, the will cost little more than 36 pounds. If it is longer than usual, it can slightly raise the price (it is scarce that exceeds 60 pounds).
Content and characteristics of the testament
In the Testament, it is not obligatory to tell what real part of each of the heirs is concrete. Most often, if you have children, is that called them heirs equally, without making any mention of the goods, but by applying a percentage equal to all of them. It will be after the death of the testator when those named in the will have to make an inventory of the assets and debts that he had, and proceed to its cast.
It is possible that a testator wants to be attributed to one or more persons a concrete well, a building, a jewel, money that exists in a current account, or anything else. In this case, is what is called a legacy. The testator bequeaths that specific property. The bequest can be made in favor of the forced heirs – descendants or ascendants – or of other persons or institutions. In any case, it must respect the limits imposed on the legitimate, which is explained below.
The devisees – who benefited from a legacy-receive only the designated by the testator, and the rest is allocated to the heirs, who are those who acquire all what had the deceased and that do not have legacy especially, including debts, which will be required to meet, where they formally accept (accept tacitly) inheritance.
Sometimes it is convenient to appoint one or more persons to deal with inheritance and protect property, the deceased testator, and so determine the deal, is to be among the heirs will produce friction or difficulties: it is of the executor and the so-called executor of the will or estate.
For example: a father who appoints his sons as heirs, but believes that there can be fights between them by inheritance, and, to prevent this, selects a family member or friend, or several, to be that dealt, while children can avoid it, unless all of them are d (e) agreement. It is a way to save the difficulties, making non-heirs who dealt, but a trusted third party.
It is possible to appoint guardians when there are minor children, foreseeing the case that missing both parents.
The testamentary provisions, according to the needs (age of children, will that certain goods are not sold for a while, that will pass to others in default appointees or after the death of these limitations, requests, etc.) varied, and exceed this level. In these notes is only intended to provide general information, but, being a matter so important and personal – in many cases, it is a very sensitive issue – Please go to the notary, ask questions and discuss your ideas, so you report of all the possibilities and advise you according to your particular circumstances. Remember that will advise you free of charge, regardless of that you decide or not to write the will.
The Testament is always revocable; it can still be changed; that gives it, i.e. can make when you want another later. On the other hand, it is a personal document, must not let in any registry or office, and does not prevent the testator to dispose of their property, as if had not done so. It is, no more and no less, the will of the person on how to divide up their property when it fails, but does not affect your life.
The most frequent Testament: “from one to the other, and then the children.”
This will give the assurance that lives while either of the two spouses, shall be entitled to reside in the House and to use the heritage, and when the two missing, will happen to the children equally, even though the widower contract another marriage because it is not proprietary, but the beneficial owner. It is often called the universal language ‘from one to the other and in the absence of the two for the children,’ and indeed is an expression that fits perfectly to your content. It is so simple that it is not strange that it is the most commonly used model for the couples who come to the notary to give Testament. Each of the spouses has to grant this Testament separately: are individual documents.
The most typical case is a couple with children who will make Testament. The idea that tends to have is that the widower or widow is with the greater possible rights, and in particular that you can continue to enjoy the House or property as long as you live and then pass to their children equally.
The way to do it is bequeathing each and respectively the universal enjoyment, i.e., everything that had the deceased, the spouse that to survive, and naming heirs by parties the same children.
So women who are widowed or the husband can use and perceive the incomes and the heritage of the two fruits, as long as you live, so that for example you have the right to live in the House while children may refuse to do so. If there are leases, charged the rents and, in general, you will benefit from all that produce goods that were once of the two, but in any case you can sell anything of the deceased, unless all the children give their consent. When the widower dies, the children will receive the heritage of both parents without any limitation.
The widower or widow always can freely dispose of half their profits – after having distributed the marital property between this and their children, because that half do not receive it by inheritance from the deceased, but that was already theirs before. The effects of the Testament are limited to half of the community property of the dead, most proprietary assets, i.e., those who have inherited in turn, received by donation, or those who had before contracting marriage.
This type of will, in order to prevent possible injury from the legitimate of the children, is included in what is known as a ‘cautious Socini’: if any of the children do not accept that his father or mother widowed receive the usufruct of all goods – as always can claim his strict legitimate free usufruct-este child loses everything that is not strictly reserved for the benefit of the other brothers that Yes to accept it. In this way, there are more guarantees that the children respect the will of the parents.
This formula complements very often widower offering the option to receive, instead of the usufruct of all assets, the maximum possible allocation in property, which is one-third in common law. The widower will be valued, answered their age and their circumstances if you prefer the usufruct or realize his hereditary portion in goods that Yes may sell without their children.
What happens if it is not a testament
The first problem that arises if someone dies without having made a will is what happens to their heritage. Contrary to what some people believe, or inheritance, is lost or is it is completely State. What happens is that you as in this case, the deceased has not established who heirs are, shall be the law that names, the order of kinship.
As in the case of the Testament, we will explain the rules of the common law, referring to the notary for more information on provincial rights, complexity and the differences that exist between regions.
Who are the inheritors in the absence of a legal will
If the deceased has children, his inheritance is divided between them in equal parts.
If any of the children has died before the father, you have to differentiate:
If this child had to turn descent, it is up to these equally what touched him to his father or mother.
If the deceased child had no offspring, inheritance is divided only among the children that are alive at the death of the father or mother.
If the deceased was married, your spouse is only the usufruct of a third of the inheritance. In addition, of course, responsible for half of the goods which are community property, because these goods are already in life of the two, equally.
If you don’t have children, the order is as follows:
Their parents, equally if both are living, or if you only live one, everything to him. If there are no parents but if grandparents or further afield, to these ancestors. In this case the usufruct of the heritage half corresponds to the widower.
If no living parents or ascendants of any kind has, the widower or widow will be the sole heir.
If no living parents or spouse has at the time of his death: his brothers and sons of his brothers, and in the absence of these to his uncles, and has no brothers or uncles, carnal cousins, sobrinos-nietos and tios-abuelos, if they have survived him. Only if you don’t have any of the relatives before cited, in short, if he dies without a will and without relatives, it inherits the State.
Procedures to compensate for the lack of testament
If Testament has not been done, we will formalize what is called a ‘Declaration of heirs’, which is a public document that defines the relatives who are entitled to the inheritance rules before views and making it notarized.
We will have to take a series of documents (identity card of the deceased, death certification, certificate of registration of acts of last will; Book family, at least) and 2 witnesses, in principle, meet the family of the deceased. If they are relatives, they may not have direct interest in the Declaration. Go to the notary so that indicate you exactly what you need in this case.
Cost of these procedures: in the best of cases (Declaration of heirs before notary and succession without complications) expenditures are more than 3 times what it costs to make Testament. As you can see, it is advisable to give Testament. In this way you will get your goods to pass who want and attachment much things to your heirs tomorrow.
Accepting or renouncing an inheritance
When a person dies, his heirs – are who are, come determined by the Testament which have been granted one or by law – must decide whether to accept his heritage or reject it (is what is called repudiation). The acceptance may be express or implied. It is implied if the heir perform acts or business that would have no right to do if he had not accepted the inheritance, for example, signing a lease of a flat which was of the deceased. It is expressed, the more usual, doing so “expressly” before a notary.
The resignation however it is never implied, must be express and in public (notary) or authentic document. Both acceptance and repudiation, once they are granted are irrevocable, because you cannot change of opinion. He is an heir or ceases to be with all the consequences, and forever.
Inheritance can be accepted in 2 different ways: pure and simple, or for the benefit of inventory.
The first heir undertakes to pay all debts and obligations of the deceased, responding not only to the heritage, but also with his and without limitation.
With the acceptance for the benefit of inventory, the heir only responds debts with what you inherit, and never their goods.
After accepting the inheritance, you have to pay the inheritance tax, which varies significantly between some autonomy and others. The tax base of this tax is composed of the value of the inherited property (assets) fewer loads or deductible debts (liabilities). So the fee is paid only by the net value of inherited heritage (inferred by both the debts of the deceased). The heir who has accepted the inheritance can pay the tax before or after paying the debts of their deceased (there are within six months from the death to settle tax), but in any case, only will be taxed on the basis of the net.
Partition of inheritance
Why and when to do the partition of inheritance. Death of a person, their property, and if you have them, debts, pass to heirs who point out his last will and Testament or in the absence of this, the law. But it should be a series of steps to find out who are the heirs, and to move the assets of heritage in the name of the deceased on behalf of the heirs. Even this does not make cannot be sold in writing none of the assets of the deceased, or money that is in the banks on behalf of the deceased can normally be removed.
The death certificate: gets in the Registry Office of the locality where the death occurred (although it is different from the usual domicile of the deceased). The registry usually bring in the courts of each town or City Council (Justice of the peace). It tends to speed up the search in presenting the book of family, and should ask three exemplary for different procedures.
The certificate of registration of acts of last will: to see if a person has made a will, and if it has done so, in order to know where and when did the latter. To get this document you need to provide the certificate of death and submit or send to the Ministry of justice a form sold at tobacconists. You can also order form telematics through the office of the notary.
If there is will: If previous certificate proves that there is will, you have to request a copy in the office of the notary where (the copy that is delivered to the testator normally is not enough), or through another notary.
Who can request copies of the Testament?: only people who have any right in inheritance, the forced heirs, according to the same or which would be entitled to the inheritance if there is no Testament.
How?: going personally with your ID card to the office of the notary where the will was made, or by sending a letter with a signature authenticated by another notary. This notary prepared everything, and even draw up the letter of request.
If there is no Testament: You must make the Declaration of heirs by notary. Once you have the copy of the will or the Declaration of heirs, and know who have rights in inheritance and what rights have, already the partition can be.
How to make the partition and who have to step in and sign the public deed before a notary.
If there is will: all of the heirs and legatees, as well as those who are entitled to legitimate, something will win them or not in the Testament.
If there is no Testament: all who are heirs according to the Declaration of heirs. The system of majorities, but unanimity does not act from their share of the inheritance. If one of the interested parties disagrees and does not want to sign the deed, it’s not possible to formalize a partition that could be called ‘by majority vote’, but you need to go to the judge, as we will see later.
It is common that the family is scattered and difficult to meet all these people. In this case, after to agree about how it will make the partition, usually give a power of attorney to other heirs or someone else to do so on its behalf.
Special cases: the contador-partidor.
The testator may designate one person in the will that make the partition. This person is responsible, within the part of the inheritance which corresponds to each heir, to say which assets are allocated to each. His work is very useful, since if there is no agreement between the heirs can she make the partition and avoid having to go to the judge.
If the deceased was married in marital property regime, will also, with the widowed spouse, the liquidation of community property (i.e., will determine which goods correspond to the widower in his half in this society, and what are the inheritance of the deceased).
It is advisable anyway, to avoid claims, that the contador-partidor get the unanimous agreement of all the people we saw before have to intervene in the partition, and that, therefore, the deed of partition come the contador-partidor and all of them, but in any case this agreement is essential. The contador-partidor can sign him only the deed of partition, except that the deceased was married and had ganancial heritage, in which case the widower or widow shall also sign, but not the heirs.
How the partition of inheritance
Previous acts: the distribution of the marital property and collation of donations.
The distribution of the marital property: if the spouses are not married in economic regime of separation of property, goods that were purchased during the marriage are marital property, i.e., of the two. Upon the death of one of them, it must determine which goods stays in property the widower and what will remain for the inheritance of the deceased. This is usually done at the same time that the partition and in the same deed of inheritance, since they have to be the same people (the widow and heirs).
The collation: when they have been made donations by parents to children in life, law understands that has been made in anticipation of the inheritance and that will have to be taken into account, so that these children receive less inheritance the value of which has donated them. I.e., the law considered that if a parent has given something to a child, it was not because I want to improve it, but because it wanted to give part of the legacy in life, so that the gift to the son must compute to the lots between them. This however, collation does not occur when the parent disposed otherwise to make the donation.
Once done, what is known is what is in the inheritance and what is to be distributed among heirs according to the part that each one. Heirs must be all agree on lots of goods that correspond to each one. If the testator determined who was going to stop some or all of the goods, must respect its will.
Although particional notebook can be privately, it is more practical and comfortable to do all previous operations on a single partition script, getting advice from the notary. In addition, particional notebook signed privately later rises to public deed.
Much is inherited: the inheritance tax
We will analyze the general regime. In the Basque country and Navarre there is a tax system much more favorable (inherit is much cheaper) than in the rest of Spain. Also in other communities regional legislation has been establishing bonuses involving the total relief in many cases. The criterion for the application of this regime is the residence of the dies for a period determined in that territory.
Who pays: tax paid by each of those who receive some inheritance, either as heir or because the deceased a legacy has made him.
How much is paid: The amount of the tax depends on several factors:
The value of the goods you receive: scale is progressive, i.e., percentage paid is greater the higher is the value of the inherited.
Kinship with the deceased: the more distant kinship, higher is the percentage that is paid. In addition, according to kinship there are certain initial amounts (which are revised each year) that pay nothing. I.e., that there is a free minimum depending on the closeness of kinship.
Previous heritage he inherited: if he inherits has an important heritage of prior – fixed on the tax law – le is also more expensive to inherit.
On the other hand there are inheritances that pay less tax, with certain conditions, such as the family business or the family home if the heirs are the spouse and children.
Within what time you have to pay it: must be presented the instance to pay the tax within the period up to 6 months from the death. If you pass this period, finance charges the corresponding surcharge.
The public deed of partition is a tax declaration, is enough to present it in the office of finance, without the need for other documents. If writing is not, is a private instance that must be presented. In the inheritance tax, it is not mandatory to do an autoliquidación (although Yes is permitted), i.e., simply that the person concerned should present the data, and Treasury calculates it and tells you the amount that you must pay.
The testator is not always free to leave your assets as you wish. There is a legal obligation to leave something the legitimate descendants and ascendants and spouse, according to the cases, so called forced heirs. But you have to take into account that the rules are not equal for all Spain. There are certain territories that have a special, historical, rights called ‘Statutory rights’, which regulate differently all regard the Testament and inheritance. They are basically, Galicia, Catalonia, Aragon, Navarre, part of the Basque country, and the Balearic Islands. Here we will explain the law to the rest of Spain, governed by the so called ‘common law’.
Who are the forced heirs and how much should be left to them.
The children and descendants: two-thirds of the inheritance. One-third of the heritage must be let by equally among the children, and another one-third (the call for improvement) to the children and grandchildren, but this third may distribute freely among them or leave it one only descendants.
Parents and ancestors: if you don’t have children or descendants, must be one-third of the heritage to ancestors who survive if they concur with the widower, and half of the inheritance in another case. If there are descendants, parents have no right.
Widow or widower: if the testator has children or descendants, have to let a third of the inheritance in usufruct. If he concurs with ancestors only, entitled to the enjoyment of the heritage half. If there are neither descendants nor ascendants, it is entitled to the enjoyment of two-thirds of the inheritance.
This is fully binding for the testator. It can only deprive these people of their rights in case of disinheritance or indignity, regulated in the code Civil and very rare in practice. But outside these limits the legacy you can leave as you like.
The legitimate provincial rights.
The legitimate Aragon of the descendants is not individual, but collective: half of the inheritance must lie with children or descendants, but the testator can be attributed equally or unequally among all, some of them even only one.
There is no right to a legitimate individual. The testator can distribute as you like, equally or unequally, between his descendants, and even leave it all to one of them.
MALLORCA AND MENORCA
The sons and descendants by nature, marriage and marriage, and adoptive, being the third part of the inheritance if they are 4 or less and half the amount if they exceed this number are legitimarios in Mallorca and Menorca.
The right to self-defence is lost in the particular law of Mallorca inheritance Pact known by ‘definition’, which implies renunciation of the legitimate by a descendant in contemplation of any donation, attribution or compensation to their ascendants Mallorcan neighborhood receives or has received previously.
Parents, by nature or adoption, corresponding to the fourth part of the inheritance – by half or entirely for one if the other is dead – are also legitimarios . The legitimate of the widowed spouse is the use of half of the inheritance, if he concurs with descendants; two-thirds, if concurs with parents; and in the other so-called universal usufruct.
IBIZA AND FORMENTERA
In Ibiza and Formentera the legitimario entitled to a portion of value that can be specified in goods or money, secured by the real condition to your payment of all goods of the inheritance.
Legitimarios: are only legitimarios the children and descendants, and in the absence of them, parents, either by nature or by adoption.
Amount: the amount of the reserved portion of the children is the same as in Mallorca. Parent is equated to the Civil Code.
It should be the resignation through the ‘settlement’ of legitimate, analogous to the Mallorcan ‘definition’.
Legitimarios: legitimarios are the sons and descendants and, failing that, the father and mother, or which of them survive.
Amount: the amount of the reserved portion is the fourth part of the equity of the inheritance, including donations made in life. To determine the single legitimate between several legitimarios they do number that is heir to, the legitimario that it has waived, which has just been disinherited and the declared unworthy to succeed the deceased.
Payment: the reserved portion may be paid, at will of the heir, in property of inheritance, valued to this effect at the time of making the award, or money, even if there is it in the inheritance.
Legitimarios: are legitimarios the children and descendants of children –, precisely disinherited or unworthy and not separated widowed spouse legally or in fact.
Amount: constitutes the legitimate descendants of the fourth part of the value of the hereditary liquid have to be divided between the sons or their lineages.
Payment: if the testator had not assigned the legitimate in certain goods, the heirs, by common agreement, may choose between pay in hereditary property or cash, albeit extra hereditary. In the absence of agreement between the heirs, the legitimate payment will be in hereditary property. The legitimario has no real action to reclaim its rightful and shall be deemed, for all purposes, a creditor.
In terms of the legitimate of the widowed spouse, deserves the usufruct for life a quarter of having hereditary if he concurs with descendants; in other cases, the lifetime usufruct of the half.
The rights granted to the spouses have been extended to marital relations with vocation of permanence who meet certain requirements by law 10/2007.
In Navarre there is almost absolute of test freedom. The navarros can freely dispose of their property, without further restrictions to the attribute to the children, and failing to his descendants, a formal legitimate, of symbolic character, 5 salaries ‘febles’ or ‘carlines’ by the collateral and a ‘stolen land’ in the common mounts by real estate.
Law 2/2015 of 25 June, which entered into force on 3 October, establishes the following novelties, among others: unifying the inheritance regime creating the civilian neighborhood Basque, common to the three historical territories of Araba, Bizkaia and Gipuzkoa. You are only legitimize them descendants and the widowed spouse or common-law partner, not parents. The reserved portion of children and descendants is reduced to 1/3, and happens to be collective. The testator can distribute as appropriate. The widowed spouse or partner in fact has a legitimate of the usufruct of half of the inheritance, concurring with descendants, and two-thirds if he concurs with ancestors. It also has a room right to the common residence. Finally, you should delegate to the spouse or common-law partner in fact the right to distribute the assets of the testator between their legitimize them as it is convenient, using the power testatorio. It is advisable to consult the notary the updating of wills granted previously.