If the decedent left a will which specifies shares in succession and/or the method of estate partition, the inheritors are bound by the statements of the last will, unless they work against the mandatory heirs rights of succession. The testator may have designated a third person to make the estate partition.
If the heirs disagree with the distribution of the assets, they may contest the partition made by the partitioner that the testator had designated.
If the deceased died intestate, the heirs aged over 18 and those who are not of legal age, duly represented, can distribute the assets among them in the form they wish. If they do not seek agreement on partition, they are entitled to request from the judge the designation of a partitioner, who must then make the partition of the estate.
Whether there exist a last will or not, the heirs are entitled to carry out the partition by common agreement. The partition and distribution of the assets must be made before a notary on a public deed.
When the decedent dies intestate, before distributing the assets among the inheritors, it is necessary to identify them. This task will be carried out by obtaining a “declaratoria de herederos“, which states the name of the inheritors.
When the inheritors are closer relatives, they may request the “declaratoria de herederos” to a Notary from the last place where the decedent lived.
When the inheritors are indirect relatives or friends, they could request the “declaratoria de herederos” to the Courts of the First Instance from the last place where the decedent lived.
If the assets exceed over € 2.404,05, the assistance of a Spanish Lawyer will be required to request the “declaratoria de herederos“.
The matrimonial property regime is extinguished upon death of one of the spouses, and therefore, before distributing the estate among the inheritors, it will be necessary to set up which assets correspond to the surviving spouse and which correspond to the deceased.
Distribution of the assets is normally stated on a public deed made before a notary. The compulsory heirs may contest this if they consider the distribution has damaged their “legítima” or the third of the assets which legally correspond to them.
Those gifts that the parents give to their descendants during their lifetime are intended to be an advancement of their corresponding assets. These gifts shall be deducted from their corresponding quotas once the estate partition is made.
The public deed stating the partition of the estate shall contain all assets, its value, identification of the inheritors, their quota and corresponding assets, and their conformity with this partition.
This public deed entitles the heirs to register their assets with their own name in the Property Registry. They shall have previously paid the inheritance tax and the Capital Gains tax on land in order to be allowed to register their assets.
If the heirs do not seek agreement on partition, any of them shall be entitled to request the judge to carry out the partition. They can also request this from the judge when they do not agree with the partition made by the partitioner designated by the testator, or when the agreement is reached according with the testator provisions.
- The deceased’s death certificate.
- The certificate of the the Central registry of Spanish wills where it shall appears that there exist no will.
- Documentation about the assets.
- Certification on the plaintiff’s identity proving that he is a lawful inheritor.
When the partition was made of benefit to the joint heirs, the fees shall be indebted to the inheritance.
When the partition was made of benefit to one inheritor, he is responsible for the fees he incurred.
If the creditors are either identified in the will, or they have any legal document which entitles them to collect their credit ( a judicial decision, bill of exchange, promissory note;), or when the heirs recognize them, these may object to the partition of the inheritance until the amount of their credits is either paid or secured.
Creditors cannot request for the judicial partition of the hereditary estate. Only when the partition is made, can these request their credits.
The inheritors may accept the inheritance in profit of inventory, otherwise they shall pay the total amount of the debt even with their personal property. Had an individual heir paid more than his share according to his quota, shall he be entitled to request from the others the payment of the proportional part.
Not until the partition of the inheritance is made before a notary, or until the judicial proceeding is finished and the inheritance tax is paid, can the heirs sell the assets left to them. Meanwhile they can only sell their inheritor’s rights. The purchaser will only acquire the assets when these belong to the inheritors.
The heirs can exercise their preferential right to purchase any inheritance assets, individual heir must inform the rest of inheritors that he wishes to sell his hereditary quota in order to enable them to acquire it before a stranger does.
The partition may be rescinded by cause of lesion in over any of its beneficiaries. Notwithstanding, the partition made by the decedent in a will may not be contested for cause of lesion, unless it appears to be made in prejudice of the mandatory heirs or it is assumed that this was not the decedent’s will.
The act to request the rescission from the judge can be made within 4 years after the estate partition. The defendant may have to pay an indemnity to the inheritor damaged, or a new inheritance partition can be made as a result of this rescission.
In this case the partition already made cannot be canceled. Another partition of the new assets appeared shall be made
12. What happens if someone was believed to be a heritor and he turns not to be? What about omission of any heir?
When someone was believed to be a heritor and he turns not to be, the inheritance partition will be null.
In the event of there being omitted an individual inheritor with no intention, the beneficiaries of the partition shall give him his/her corresponding assets.