Distributing an inheritance is something that must be done when two or more people attend the inheritance of a deceased.
Who is the heir and who is the legatee?
The heir is the holder of the inheritance that succeeds the deceased, replacing him in his general legal situation so that he receives, globally, the relations that survive him, that is, he succeeds the deceased in all his assets and obligations.
A legatee is a person who is favored by the testator with one or more mandates in a singular capacity, that is, he receives one or more specific things from the inheritance. The legatee will only exist if there is a valid will since there are no natural legatees.
The condition of heir is acquired by being designated as such in a will or, if there is no will or no heir is designated, by designation of the Law that lists the natural heirs as those who are called as such if there are no testamentary heirs, they are described and regulated in arts. 912 and ss of the Civil Code (hereinafter Cc) and are the closest relatives (children, grandchildren, parents, grandparents, spouse and first cousins).
Finally, we must describe what forced heirs are: relatives who have the right to inherit a certain percentage because the Law recognizes it as legitimate (articles 806 et seq. of the Cc); the testator can dispose of his assets as long as he respects these percentages or legitimizes that he cannot dispose of and, if he does not respect them, the forced heir (called the legitime) can challenge the will and request that the testator’s dispositions be reduced to that they are respected
When there are forced heirs who have received assets from the deceased in life, they must bring them up, that is, compute them so that they are taken into account for the calculation of their right to the legitime.
Having said all this, it is clear that there may be two or more heirs (because there are several natural heirs or because the testator has designated several heirs) and, in addition, other legatees that must be fulfilled; with all this will have to distribute the inheritance.
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acceptance of inheritance
Each heir who is an heir and who has the capacity to act and the free disposition of his assets may freely accept or repudiate his right to inherit.
When several heirs attend, in addition to accepting (or not) the inheritance, they must distribute it, art. 1051 Cc provides that no heir is obliged to remain in the undivided inheritance and can demand it when he deems it appropriate.
Forms of inheritance partition
If all the heirs get together and agree on how the inheritance should be divided and they sign it in this way, the problem would already be solved, but if this does not happen, one of the partition mechanisms provided by the Cc will have to be used.
- The testamentary partition: if the testator has already made the distribution of his assets in his will (art. 1056 Cc), he can also take measures to preserve his business by arranging that an heir is compensated in money so that the direction or management of such business remains. In any case, the testator must respect the legitimate ones when doing this.
- The accountant dividing the will can also be the testator designated a person to carry out the partition (other than one of the heirs).
- The dative dividing accountant, if there is no testamentary, can appoint a dividing accountant, the notary or the lawyer of the administration of justice at the request of the heirs who are entitled to half of the assets and with a summons from all.
If despite all these possibilities, the heirs are unable to agree or obtain the appointment of a party, they must go to the judge to decide. They may also go to the corresponding court if they do not agree with how the partitioning operations are carried out or if they consider that their right has been harmed.
If there are minor or incapacitated heirs, they must be represented by someone who has no interest in the inheritance; if their parents have it, they must request the appointment of a judicial defender.
The partition must respect the equality of all, making batches or awarding to each one thing of the same nature. If something is indivisible, it can be awarded to one of the heirs who compensates the others with money, but they all have to agree because any of them can request that it be sold at a public auction.
Let us remember that the heirs succeed both in the property and rights of the deceased (assets) and in their debts and obligations (liabilities), so both must be taken into account to make a fair and equitable partition.
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the partition notebook
The document in which the heirs or the dividing accountant carry out the inheritance division operations is called a partition book.
This document can be done privately if there are no real estate assets in the inheritance, but it must always be done by means of a public deed if there are so that each adjudication can be registered in the Land Registry.
It consists of four parts:
- Inventory An exhaustive enumeration of all assets and rights and all obligations that are part of the inheritance must be made.
- Appraisal Each inventory item (both assets and liabilities) must be valued. This valuation can be done by the testator himself or the heirs by mutual agreement or entrust to a professional appraiser for them or by the judge, if necessary.
- Settlement Having already listed and valued the assets and obligations, the total value of the inheritance and the share, in equivalent money, corresponding to each heir, will be calculated. In this part, the legacies (to be subtracted from the value), the improvements and other asymmetries that must occur in the distribution to adapt to them must be taken into account.
- Adjudication in it is given to each heir the property of the assets that make up the lot that corresponds to him.