Inheritance: How to divide an inheritance

The death of a loved one is an event that is always a sensitive and painful time for all family members. In addition, right after, it is time to settle the assets, rights and obligations that remain even after he or she is gone forever. This is what is known as inheritance. We would like to talk to you here in more detail about the distribution of your inheritance.

Acts prior to the distribution of the inheritance

These are not necessary in all cases, but they are very common. The first to be taken into account is the liquidation of the community property, which will be necessary if the deceased was married under this regime at the time of death. This determines which assets belong to the widow/widower and which make up his/her inheritance.

The other is the collation of the donated assets. It may be the case, for example, that a parent donates a certain asset to one of his or her children during his or her lifetime. According to what is described in the law, this donation is to be considered as part of his or her inheritance. Thus, at the time of the distribution after death, he or she will have to subtract it from his or her share.

Acceptance, rejection and distribution of the inheritance

It should be made clear that the distribution of an inheritance does not imply acceptance of the inheritance. In fact, when the heir accepts it, what he/she does is to become part of what is called the 'estate', that is to say, of all the assets and debts left by the deceased. However, he or she cannot dispose of it until the distribution has taken place.

The purpose of the distribution of the estate is, on the one hand, to distribute the ownership of the assets among the heirs and, on the other hand, to settle the debts associated with the estate. There are times when these debts do not offset the assets received. In such cases, it is not uncommon for the heirs to refuse to accept the inheritance. This is what is legally known as 'repudiating the inheritance'.

How is an inheritance distributed? The will

Once the above points have been clarified, it is time to focus on the distribution of the inheritance. However, it is not the same in all cases. We are going to detail each of the cases depending on whether or not there is a will, which is the document that establishes how it is to be carried out.

The distribution of inheritance with a will

There is no doubt that an inheritance with a will makes it much easier to divide the inheritance among family members. In fact, it usually establishes which assets correspond to each one, although sometimes it only mentions who the heirs are. The will expresses the will of the deceased, which must be respected unless the minimum amount established by law (the 'legitimate share') has not been assigned to each of them.

In the event that the will only specifies who the heirs are, it is the responsibility of the heirs to agree on the distribution of the assets. This should be done by drawing up a partitional notebook containing all the details. The help of a specialised lawyer is often helpful in order to respect everyone's rights.

The distribution of inheritance with legacies

There are times when the deceased has written in his or her will that he or she wants to leave a specific asset to a specific person. In legal terms, this is called a bequest. The testator is entitled to do so as long as he respects the legitimate share and the legatee is entitled to receive it. Once granted, the remaining debts and assets will be distributed among the heirs.

How is an inheritance without a will distributed?

Inheritances without a will are often a source of conflict. Obviously, when the deceased has only left his or her habitual residence and some money in the bank, everything is quite simple. However, when the estate is much more complex (assets in companies, farms, etc.), it often leads to disputes between the heirs.

The problems arise because the distribution has to be carried out by the legitimate heirs in its entirety through the above-mentioned partitional notebook. They must ensure that the equality between them is respected.

Different examples of inheritance distribution

The family situation of the subject at the time of death also has a significant influence on the way in which the inheritance will be distributed. Let's take a look.

The distribution of inheritance with spouse and children

The division of inheritance in marriages with children will depend, first of all, on the economic regime associated with the union:

Inheritance distribution in marriages with community of property. 50% of the assets belong to the widow/widower, as well as 100% of the private assets that are in his/her name at the time of death. The children share the remaining 50 %.

Distribution of inheritance in a marriage with separation of property. If there is only one child, the widow and the descendant share the inheritance equally. Likewise, if the couple had between 2 and 6 children, the widow/widower will get twice as much as each of them. Finally, if the number of children is 7 or more, 25% of the inheritance will go to the surviving spouse and the rest to the descendants.

The division of the inheritance between siblings

In the event that the inheritance is given by either parent without the other parent being alive, there is no problem beyond the possible lack of understanding between the siblings. Assets and debts are to be divided equally.

However, understanding how to divide the inheritance between siblings when the deceased is one of them is more complicated. The reason? They do not necessarily have to be considered as forced heirs if there is no will certifying this.

If the deceased is unmarried and has no ascendants or descendants, his or her assets will be inherited by the siblings in equal shares. Even nephews and nieces may be entitled to a fraction of it. On the other hand, if at the time of death he or she had children, was married or his or her parents were alive, they will have priority in the inheritance.

The distribution of the inheritance without agreement between heirs

We are going to focus on conflicting inheritances, which are those in which the heirs do not reach an agreement when it comes to drawing up the partitional notebook. This can also happen when one of them opposes what is dictated in the will because he/she considers that it violates his/her rights or that he/she receives a lower share than the rest.

But, in order to know why this situation may arise, it is necessary to understand how inheritances are divided:

The legitimate third. This is the first third of the inheritance. It must be divided equally among all the legitimate heirs (the widow/widower and the descendants). Can the testator exclude a child from this division? Yes, but it is not easy. Challenges usually end up recognising his or her right.

The one-third improvement. The testator can decide that one of the legitimate heirs should receive a greater amount of assets than the rest. This third of the inheritance can be used for this purpose.

The third of free disposal. This is the third of his assets that a testator can give to a third party regardless of whether he is a relative or not.

That said, when one or more of the heirs do not agree with what is specified in the will, there is no choice but to challenge it in court. In the event that a judge agrees, the judicial division of the inheritance will be carried out.

This is where the figure of the accountant-partidor comes into play. This is a professional who is not related to the heirs and whose function is to carry out the distribution of the inheritance according to the guidelines set out by law. For this purpose, the tool he uses is also the partitional notebook.

An aside. In those cases in which the testator specifies who the heirs are in his will, but does not carry out the distribution, he can designate one to do so. However, in the case of conflicting inheritances, it is necessary to use a proxy accountant-partidor.

If there is an agreement, the legitimate heirs themselves determine who is to be the accountant-decorator. If this is not the case, the notary responsible for signing the will or a court-appointed administrator will take care of this. Once the distribution has been carried out by this professional, it will be obligatory to apply what is dictated in the partitional notebook.

In short, inheritances are much more complex than they seem. In fact, when there is no agreement, the distribution can be delayed for years. For this reason, it is important to leave a living will and to have the services of a legal advisor to ensure that all the details comply with current legislation.