Familia: Inheritance

Upon death, the inheritance is bequeathed to certain persons, who must accept the inheritance by notarising the deed of inheritance or by signing a private document (in certain specific cases).

The acceptance of the inheritance is an act that can be done unilaterally or with the other heirs, should this be the case.

If an heir does not accept the inheritance and you are one of the beneficiaries of the inheritance (heir, legatee, creditor) who is interested in the acceptance of the inheritance by the heir(s), you are asked by a notary to state whether you accept or reject the inheritance (Interrogatio in iure). In Catalonia, if the heir does not speak within the established period, it will be understood that he has renounced the inheritance.

At GABARRÓ ADVOCATS –HERÈNCIES-  we provide advice, draw up the deed of acceptance of inheritance or the private document where applicable and, where appropriate, obtain the acceptance or renunciation of the inheritance by the heir or heirs.

The usual practice is that the deed of inheritance itself (or the private document in specific cases) includes both the acceptance of the inheritance and the adjudication of the property, either through the institution of the heir, the bequest or the endowment.

In such cases where the testator has provided for his entire estate by way of separate pre-nuptial agreements or bequests in favour of certain persons, the adjudication of the assets should be simple.

Even when the adjudications are agreed upon by the heirs or provided for in the will, it is advisable to evaluate the destination of the assets to be inherited in the short and medium term, to determine the viability of renunciations or compensations, with the aim of minimizing both the fiscal impact and the possible disputes for the maintenance of undivided property (co-ownership).

However, when there is no will or the testator disposes of all his assets in a single clause -which we do not advise- e.g. “I appoint my children as heirs of all my assets in equal parts”, it is necessary for all the heirs to concur in order to distribute the assets of the inheritance and, often, the process of distributing the assets is more complex.

For this reason, in many cases the intervention of a professional expert in the field is required in order to reach an agreement on the distribution of the inherited assets, combining the mediation between the parties and the study of taxation.

In GABARRÓ ADVOCATS –HERÈNCIES- we provide advice, we explain the options of adjudication at a civil and fiscal level and, if necessary, we negotiate to defend your interests in the inheritance

The classic reason for forgoing inheritance is when the liabilities exceed the assets.

However, there are three considerations in this regard:

  1. The waiver of inheritance must be notarised.
  2. When there is doubt regarding the inheritance liability, it is advisable, as a precaution, to accept the inheritance for the benefit of the inventory in order to respond with the inheritance assets, so that the heir’s private assets are not affected.
  3. It is usual that renouncing an inheritance or, where appropriate, a legacy, results in a tax saving that must be assessed before deciding whether to accept or forgo an inheritance or a legacy.

In GABARRÓ ADVOCATS –HERÈNCIES-  we advise and study the viability of renouncing the inheritance for tax reasons, as well as the need to accept the inheritance for the benefit of inventory or, simply, the recommendation to renounce the inheritance, when the inherited liabilities exceed the asset

Every heir is entitled to what is left to him in the will.

But in cases where the inheritance has been distributed by bequest or endowment, an heir may not receive by will the minimum required by law, i.e., the Quarta Falcidia

The right to the Quarta Falcidia is usually not obvious to the heir, which is why it is advisable to calculate the value of the estate to be inherited, compared with the entire estate, in order to determine whether it is feasible to extract the Quarta Falcidia or whether, on the contrary,  it is covered. 

The deadlines to meet the requirements to claim the fourth decease are very short, so much so that an inventory must be taken within six months after knowledge of the death.

In GABARRÓ ADVOCATS –HERÈNCIES- we advise you and detect whether the right to claim the Quarta Falcidia concurs, we quantify it and defend your interests in the negotiation phase and, if necessary, before the Courts.

If the heirs do not reach an agreement on the adjudication of the assets that make up the inheritance, the legal procedure of judicial distribution of the inheritance must be initiated. This, in summary, once the lawsuit is filed in the Court of First Instance of the last domicile of the deceased – and in which the appointment of an administrator can be requested – consists of the following phases:

The parties don’t always agree on the assets and rights to be included in the estate: debts, fictitious purchases and sales, legacies of other people’s property, among others.

If there is no agreement, a hearing is held from which a court ruling is issued that can be appealed against before the Provincial Court and, if certain requirements are met, an appeal in cassation before the Catalan High Court of Justice.

The Court appoints independent experts who will appraise the assets and inheritance rights.

The Court appoints a distributing accountant who will draw up the distribution report, preparing similar lots of assets, trying to avoid indivisibility and, if necessary, establishing compensation.

The economic and time costs are higher than in a negotiation, but in certain cases taking a case before the courts provides the solution to an unsustainable situation of the management of the inherited estate and the relationship between the heirs. 

In GABARRÓ ADVOCATS –HERÈNCIES- we have a department specialised in legal proceedings in inheritance matters, defending your interests in the inheritance before all legal bodies, including the High Court of Justice of Catalonia.