Familia: Judicial proceedings

A person’s succession must be governed by his true and last will, which is why the law determines the nullity of those wills that do not reflect the true will of the deceased, either because

Although the Data Protection Act (LOPD) prevents persons who have not been named as heirs from having access to the medical history and other medical reports of the testator, it will be possible to obtain this information by way of a court of law.

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES-  analyses the possible nullity of wills from the perspective of people who consider their rights to have been undermined and who seek to have them recognized, and also, from the opposite perspective, defends the heirs or those favoured in the inheritance who deem  the will to be valid and who are being sued.

This is a claim for the Portio Legitima to be paid, when the beneficiary has not received anything during the lifetime of the deceased or by inheritance.

On the other hand, this will be a claim of supplement to the Portio Legitima when the beneficiary has received donations during his life attributable to or on account of the Portio Legitima and/or has been favoured in the inheritance, but that what he has received is not sufficient to cover the total that corresponds to them as the beneficiary of the Portio Legitima.

As heirs, we can judicially or by notary consign the amount of the Portio Legitima to comply with the legal obligation to pay.

Likewise, we can notify the beneficiary that we have set aside specific assets of the inheritance to cover their Portio Legitima.

As legal beneficiaries, we can file a lawsuit claiming the Portio Legitima or supplementing the Portio Legitima and, if deemed appropriate, we can request the adoption of the precautionary measure of preventive annotation of the lawsuit in the Property Registry on the properties of the inheritance, to guarantee payment of the Portio Legitima, given that it will be publicly recorded that a lawsuit is filed claiming the Portio Legitima.

The Organic Law on Data Protection (LOPD) has limited the legitimate right of the beneficiaries of the Portio Legitima to obtain much necessary information in order to appraise the Portio Legitima, such as the hereditary bank balances, the bank statements or the tax returns of the deceased. If the heir does not provide it, this information can be requested to the Court and only then will it be possible to determine what corresponds to the beneficiary.

The beneficiary who might consider that the assets with which the heir intends to pay them are not suitable, may request the Court to declare the assets unfit because it affects the qualitative intangibility of the Portio Legitima. 

This judicial procedure is settled in the seat of Voluntary Jurisdiction and the beneficiary cannot argue that he does not like the goods, but has to prove that they are not useful for the settlement of the Portio Legitima, for example, because it is an unproductive and unsaleable piece of “land”. 

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES-  analyses all the aspects related to the Portio Legitima, evaluates the need to request precautionary measures, of judicial or notarial consignment of the Portio Legitima on the part of the heir and defends before the Courts both the rights of the heirs who have been sued or the rights of the beneficiaries of the Portio Legitima who file a lawsuit to claim their legitimate rights. 

When an heir’s inheritance is not sufficient to cover the Portio Legitimae demanded or, even his own Portio Legitima the assets bequeathed in the will may be reduced, or, if necessary, deleted entirely.

If, after such reduction or deletion, the Portio Legitima are still not covered, the heir may reduce of delete donations or disposal free of charge carried out by the deceased during the last ten years prior to their demise. 

This action may be brought by the beneficiary of the Portio Legitima in order to ensure their right, should it be deemed necessary.

The Proceedings Department of GABARRÓ ADVOCATS –HERÈNCIES-  defends the heir or the beneficiary of the Portio Legitima who may request, before the Courts, the reduction of legacies and/or donations due to  on enforceability of the Portio Legitima and, likewise, the rights of the beneficiaries of donations who are sued.

Although the Catalan Portio Legitima is a mandatory right, in certain cases specified by Law, the testator may disinherit their heir(s) (parents who disinherit their children and/or grandchildren or children who disinherit their parents). 

When the legitimately disinherited person considers that he has been unfairly disinherited, he may file a legal action for unfair disinheritance, but the burden of proving the validity of the disinheritance will fall on the heir. 

The action to file this lawsuit expires four years after the death of the deceased.

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES-  analyses the probability of success of a lawsuit to determine an unfair disinheritance and defends before the Courts those heirs who consider they have been unfairly disinherited or, conversely, defends the heirs who are being sued and who have to prove that the requirements to maintain the disinheritance of an heir are met.

If the heirs do not reach an agreement in the allotment of the assets that make up the inheritance, it will be necessary to request judicial assistance and initiate judicial proceedings for the distribution of the inheritance. In summary, it is a procedure in which the judicial experts will appraise the hereditary assets and the assigned accountant will be in charge of forming specific lots of assets and allotting them to each co-heir according to their hereditary quota. 

Both in the application for the judicial division of the inheritance itself and through the Voluntary Jurisdiction, the appointment of a judicial administrator can be requested, as well as other measures for the protection of the estate, that is, when it has not yet been accepted by any heir and there is a real risk that the inherited estate will be deteriorated if it is not properly administered.

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES- analyses the need to file a lawsuit for judicial division of the inheritance and defends before the courts the rights of the heirs it represents.

Unless prohibited by the testator, the heir is entitled to receive – at least – one quarter of the liquid hereditary assets. Therefore, if so many bequests have been ordered in the will so as to impinge on this mandatory share, these bequests can be reduced. 

In order to exercise this right, the heir must have taken an inventory within a certain time and in a certain manner.

If, on the other hand, the heir intends to reduce a bequest in an erroneous manner, either because he has not carried out the calculations properly or because he has not met the legally established requirements, the beneficiary may assert his rights and defend the non-reduction of his bequest.

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES- calculates the Quarta Falcidia and, should this be the case, defends the rights of the heir before the Courts or, conversely, defends the rights of those beneficiaries who have been sued but should not have their legacies reduced.

In general terms, the heir is the person obliged to hand over bequests to the persons favoured in the will.

In such case where the heir or person obliged to deliver or fulfil a bequest does not proceed so, the beneficiary or favoured person can claim and defend his rights before the Courts.

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES- defends the rights of the heir before the Courts or, conversely, those of the legatees or favoured persons whose rights are being impinged.

A widow/er or life partner who, on the death of their spouse or partner, is not in a sufficient financial position to meet their needs because they do not have sufficient assets of their own, nor do have they received sufficient assets from the inheritance and/or the settlement of the marriage, may claim the necessary amount from the heir, up to a maximum of one quarter of the liquid assets of the inheritance (assets minus liabilities).

The concept of “meeting their needs” must be determined by taking into account the standard of living that the widow or widower had during the deceased’s lifetime; the inherited estate; their age; their state of health; the salary or income that they may have and the foreseeable economic prospects, among other elements. 

 The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES-  analyses the viability of the case and defends, before the Courts, the widow/er or surviving partner who claims the Quarta Vidual or, conversely, the heirs being sued in a Quarta Vidual claim.

The heir has means to claim any part of the estate from whoever has it because they are the heir.

Although it seems obvious that such property must be returned to the heir, the law provides for the acquisition of property through usucaption, that is, without having any title, that property or properties have been possessed for a legally determined long time, uninterruptedly and peacefully.

The Department of Proceedings of GABARRÓ ADVOCATS –HERÈNCIES- defends heirs who claim a property of the inheritance or, conversely, the right of the holders of property who consider it to be theirs and therefore need not return it to the heir.

Executors must perform their duties diligently and in accordance with the instructions of the deceased and the law. 

Executors are not always experts in inheritance matters, but this lack of knowledge does not release them from correctly carrying out their commission and, therefore, the solution is to hire experts and receive sufficient advice to be able to exercise the executorship appropriately.

Otherwise, the heirs and others favoured in the inheritance can sue the executors and even request their removal, if their behaviour has been fraudulent or seriously negligent. 

In certain circumstances, the executors may end up losing their right to remuneration and even incur liabilities vis-à-vis the heirs and other beneficiaries, which would be settled in court.

The Procedural Department of Gabarró Advocats-Herències- advises executors in the fulfilment of their duties and, if necessary, defends them in court, or, conversely, defend the rights of the beneficiaries of the inheritance who consider that the executor is not acting diligently or is overstepping the commission made by the testator.