Inheritance, Testamentary Succession and Intestate Succession, their processing. A few tips

What should we do when faced with an inheritance? Our lawyers can help you.

Before getting to the heart of the matter, it is important to be clear about a series of concepts that will help us to better understand the procedure to follow when dealing with an inheritance:

Inheritance is divided into three thirds. Two thirds of the father's and mother's inheritance, regulated in Article 806 of the Civil Code, constitute the legitimate inheritance of the children and descendants, corresponding to a proportion of assets that the testator cannot dispose of at will, but which are destined solely and exclusively to the forced heirs, these are the children and descendants with respect to their parents and ascendants, in the absence of these the parents and ascendants with respect to their children and descendants, in last place the widower or widow according to the Civil Code itself. Art. 807 of the Civil Code. The third third third is called the third of free disposition and corresponds to that part of the relict estate which the testator may dispose of with absolute freedom.

Anyone who is not incapacitated by law can succeed to the estate in two ways, by means of a will or intestate (without a will). We bring up at this point Art. 756 of the Civil Code which indicates the persons who, due to unworthiness, are incapable of succeeding.

Furthermore, we have to take into account that, given that the inheritance can consist of both assets and liabilities, the inheritance must always be accepted by the heirs. Or accepted with benefit of inventory, an option that is always recommended for cases in which we suspect that there are more liabilities than assets in the inheritance, in order to protect the heir's assets. It should be borne in mind that any heir can accept the inheritance with benefit of inventory, even if the testator has expressly or tacitly forbidden it.

Once we have clarified the division of the inheritance, as well as the relevant points of the same, we will list the steps to follow in the event that the testator has made a will, as well as the necessary documentation to carry out the partitional notebook.

However, as long as these requirements are met, the testator is deceased and we are about to start the inheritance procedures, we must compile the necessary documents:

• Death Certificate.
• Certificate from the General Register of Last Wills and Testaments.
• Authorised copy of the will, if any.
• Assets of the testator (movable and immovable).
• Possible bank balances.
• Possible existing insurances.
• ID cards of all heirs.

Once we have compiled all the documentation, we have to go to the Notary of our choice in the city of the testator's last domicile, so that the corresponding Partitional notebook can be drawn up.

When we are faced with a testament that has been authentically executed, we must bear in mind that the will of the testator is always prevailing and must be understood in the literal sense of what is stipulated in the document. When the terms of the will are not clear but doubtful, logical interpretation must be used, with the intention of the testator prevailing over the words and, only in the event of doubt as to the testator's will, the wording of the will shall be taken into account, always taking into account what appears to be more in accordance with the testator's intention.

If we refer to the case of an intestate succession, i.e. one in which the testator has not made a will, the law provides a specific regulation for this.

Intestate succession is opened when: one dies without a will, when one dies with an invalid will, when the will loses its validity, when the will does not contain an institution of heir in all or part of the assets, when the will does not provide for all the assets that correspond to the testator (in this case, the legitimate succession will only take place with respect to the assets that were not provided for), when the condition placed on the institution of the heir is missing, or the latter dies before the testator and when the instituted heir is incapable of succeeding.

The law, if there are no testamentary heirs, provides for the inheritance to the legitimate heirs, which are: the relatives of the deceased, the widow/widower and the State as the last option.

When we are faced with a declaration of intestate heirs and we intend to carry it out by means of an Act of Notoriety, we must, first of all, have a legitimate interest in the fact whose notoriety we intend to establish. In order to open the intestate succession, it is also necessary to provide the certification of death and of the General Register of Acts of Last Will and Testament of the deceased, we must accredit the relationship of kinship of the persons we intend to designate as heirs, the family book of the deceased or the corresponding certifications of the Civil Register accrediting the marriage and filiations.

Another essential requirement is the declaration of at least two witnesses in the notarial act who state that they are aware of the positive and negative facts whose declaration of notoriety is sought, either from their own knowledge or by notoriety. The witnesses may be relatives of the deceased, either by blood or marriage, if they have no direct interest in the declaration.

The last step is carried out by the Notary, who notifies the Dean's Office of the Notarial Association of the request that has been made and initiates the processing of the deed. Within a minimum period of 20 working days, the Notary will state whether the facts on which the declaration of heirs is based have been accredited by notoriety and, if so, will declare that the relatives of the deceased are the intestate heirs.

The Family Lawyers at G.Elias y Muñoz Abogados are experts in inheritance, consult them for any related question.