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How to do a good testament in Spain?

Real Estate
How to do a good testament in Spain?

What will is the most common?

The will constitutes the will of a person on how to distribute their property when they die. The notarized open will is the most common, made before a notary and collected in a public deed. From the law firm FORCAM ABOGADOS we inform and advise the testator on how he can distribute his assets among his heirs, and we write his content adjusted to the current law. Once the will is drafted, the notary is responsible for the preservation of the will and for sending a part informing the Last Will Registry.

Among the most used testament model is one in which each spouse names the other beneficial owner of all the assets of the marriage, guaranteeing the right to reside in the family home while living, without the children being able to object. And finally, when the two spouses are missing, the children will acquire full ownership of the property equally or as their parents would have distributed.

Can you leave an inheritance to whoever you want?

The testator is not always free to leave his estate as he wishes. In Spain there is the legitimate, legal figure that marks the limits of the distribution of property to the heirs, called legitimaries. They are the descendants of the deceased, and failing that, the ascendants. If there are no descendants or ascendants, the widowed spouse.

What should the will contain?

In the will we have to say to whom we want to leave our assets and how we want to distribute them among our heirs. However, it is not necessary to specify what assets we leave to each heir. 

It is possible that a testator wants to leave one or several people a specific asset, which is what is called a legacy.

In the will you can also designate the people we would like to be the guardians of our children in case of death. In addition, it is possible to include other provisions, such as limiting the date or age at which a particular asset will become the property of an heir.

How is an inheritance different from a donation?

The donation is a transfer of goods and inter-living rights, that is, in the life of the interested parties, while the inheritances are mortis causa transmissions, that is, they are made because of the death of a person.

Is it possible to disinherit a forced heir?

The law recognizes few cases in which a forced heir can be deprived of his share of inheritance; However, it is possible. Now, in the event that said heir has descendants, his portion will pass directly to them equally.

Having denied food and / or having suffered psychological or physical abuse are the most common causes that allow a parent to disinherit a child. An ascendant can also be disinherited for having abandoned, prostituted or corrupted his children; for having lost parental authority by sentence, for denying them their support, or if one of the parents has threatened the life of the other. It is also possible that one spouse disinherits the other for failing to fulfill the marital duties, for the reasons of deprivation of parental rights, for denying food or for having attempted against the life of the testator. 

What happens if a will is NOT made?

If there is no will, the order of priority established by the applicable law will be applicable, in order to determine the heirs to whom the inheritance corresponds.

In the event that the Civil Code is applicable, the order is as follows: 

1- In the event that the deceased was married and with children:

Inheritance is divided among children equally. If any of the testator's children had died before him, the part of that son would be divided equally among his descendants (grandchildren of the testator), and if he had no children, the inheritance would be divided among his brothers (the other children of the deceased).

In the event that the deceased had no offspring:

2- First they would inherit their parents in equal parts or the one that survives if one of them has died. In the absence of parents could inherit the other ascendants. If the deceased were married, the widower would receive the usufruct of half of the inheritance.

3 - If his parents do not live or have other ascendants, the widower will be the only heir.

4 - If they had neither parents nor spouse at the time of death, they would inherit in this order: their siblings, their children and in the absence of these, their uncles, cousins ​​and other collateral relatives until the fourth grade.

5- Only if it had none of the aforementioned relatives, would the State inherit.

People who consider themselves heirs must go to a competent notary to make the declaration of heirs abintestate.

Can you give up the inheritance?

Yes. To do so it is necessary to formalize the resignation in a public deed. The resignation will have different tax consequences depending on whether it is made in favor of another person, or if it is purely and simply renounced, as well as if it is before or after the Inheritance Tax has been prescribed.

If the reasons for giving up an inheritance are the debts of the deceased, the inheritance can be accepted "for the benefit of inventory." In this case, the heir will only be liable for debts with what he inherits, and never with his own assets; that is, the private assets of the heir are neither affected nor compromised by the debts of the deceased.

Who pays taxes and how much is paid to inherit?

All the beneficiaries of an inheritance must pay the Inheritance Tax, autonomous competition tax:

1- Of the value of the goods you receive: the higher the value of the inherited, the greater the payment and vice versa.

2 - The relationship with the deceased: the farther the relationship is higher the percentage of the payment and vice versa (although there is a minimum exempt).

3- The inheritance in the habitual residence or in the business or business activity of the deceased usual

y entails a reduction of the tax.

Contact us, and our lawyers specializing in civil law will study your specific case. 

At Forcam Abogados we have offices in Barcelona, Madrid and Reus.