THE OPENING OF AN ESTATE
HOW IS INHERITANCE PROCESSED?
The acquisition of an inheritance does not happen automatically when a person dies, but rather a series of procedures must be carried out.
These procedures make up a multi-stage process that begins with the so-called opening of the inheritance or estate. Thus, the death of a person (the deceased) determines the opening of their estate, which consists of the identification of their heirs.
.png?width=150&height=150&name=Foto%20Maria%20Serra-modified%20(2).png)
Written by Maria Serra
Lawyer and mediator
WHAT INFORMATION DO OUR LAWYERS NEED TO PLAN FOR YOUR INHERITANCE?
- Nationality of the marriage
- The place where the marriage was celebrated
- The place of birth of the children.
- The place of habitual residence of the couple.
- The breakdown of assets: real estate, equity, investment funds, etc.
WHO ARE THE LEGAL HEIRS?
The legal heirs are the children of the deceased, and in their absence, their descendants (the grandchildren). In the absence of children or descendants of the deceased, in Catalonia, the inheritance is transferred to the widowed spouse or to the stable cohabiting partner in a surviving couple. However, the widowed spouse will not have the right to inherit ab intestato if at the time of the opening of the estate he or she was legally separated from the deceased unless the spouses have reconciled. If the children or descendants share the inheritance with the widowed spouse or the surviving stable partner, the latter will have universal usufruct of the inheritance, although they may exercise their right of commutation, which will allow them to be attributed a quarter of the inheritance and also the usufruct of the marital or family home.
In the absence of children or descendants and without a spouse or partner, the inheritance is deferred to the parents or ascendants. However, if they coexist with the widowed spouse or partner, they will be recognised the right to the legitimate share, which represents a quarter of the inheritance.
In the absence of children or descendants, without a spouse or partner and also without other ascendants, the inheritance will be deferred to collateral relatives up to the fourth degree.
Finally, in the absence of all of the aforementioned relatives, the Catalan Regional Government will succeed.
WHAT IS INHERITANCE ACCEPTANCE?
INHERITANCE ACCEPTANCE
Once the heirs have been identified, the inheritance is then accepted, which is the process by which the heirs declare that they accept the inheritance of the deceased. They may do so either through a declaration made before a notary public when there are real estate assets among the deceased's assets, or through a private declaration of assets when there are no real estate assets. In this declaration, the assets that make up the inheritance are listed and it is declared that they are accepted after their division and distribution.
The inheritance assets will be transferred once payment has been confirmed of the inheritance tax (impuesto de sucesiones) and the municipal capital gains tax (plusvalías municipales), in the case of real estate.
WHAT IS THE DIVISION OF AN ESTATE?
Division of the estate
In the process of acquiring an inheritance, the phase of accepting the inheritance is of particular importance, as this is when it must be divided and distributed among the heirs.
When dividing the inheritance, the assets existing in the name of the deceased at the time of death must be taken into account, as well as all assets donated to the descendants as heirs, provided that such donation has been recorded as a donation to be collated with the inheritance and that it has been made for the purchase of a home or the creation of a company, or that it has been recorded as being made on account of the legal share (la legítima).
WHAT IS la legítima?
Determination of the legal share (la legítima)
The legal share (more info via this link) is the part of the inheritance that the law reserves for children or descendants and parents or ascendants (legitimate heirs), and with respect to which the testator is therefore limited. In other words, the testator can dispose of his assets freely as long as he respects the legal share, which in Catalonia is a quarter of the inheritance.
To calculate the legal share, the assets donated during the testator's life to any person during the 10 years prior to their death must be taken into account.
If, in addition, donations were made with the stipulation that they were being made on account of the legal share, then their amount (calculated on the date of death) will be deducted from what the person entitled to the legal share is to receive, regardless of the date on which they were made.
WHEN ARE TAXES PAID?
Payment of taxes and capital gains
Once the division and acceptance have been made, payment must be made of the inheritance tax (impuesto de sucesiones) and the municipal capital gains tax (plusvalías municipales), if there are any real estate assets. From then on, ownership can be transferred and, as such, the process of acquiring the inheritance is completed.
More information about inheritance tax
WHAT HAPPENS IF THE ESTATE HAS NO HEIRS?
If the person made a will, the will of the testator will be followed. In the absence of a will, the intestate succession (ab intestato) will be opened and proceedings will follow the legal provisions (legal heirs).
ABOGADA DE FAMILIA EN BARCELONA
NOS PONEMOS EN CONTACTO:
