How can an inheritance be divided?
Many of you wonder how an inheritance can be divided, and this process is essential to distribute the estate of a deceased person. That is why, as specialists in inheritances in Barcelona, we are going to break down the explanation of the inheritance distribution point by point. To do this, we will divide this article based on whether the inheritance has a will or not, and then we will address some common questions you have sent us on this topic.
Distribution of inheritances with a will in Catalonia
From the moment a will is drawn up, it has already been decided how an inheritance should be distributed, because the testator has freely arranged how to distribute their assets, the will granted being, therefore, the law of succession.
You can find more information about the compulsory portion in inheritances at the following link:
Thus, in a succession with a will, the testator's wishes will be strictly applied. The only limit to the testator's wishes are the mandatory rules, which are those that the law requires to be followed in all cases. In matters of inheritance with wills, the most important mandatory rules are the legitimate portions, which must always be respected in an inheritance, whether there is a will or not.
The legitimate portion of descendants and ascendants in inheritances with a will in Catalan Law
The compulsory portions are regulated in article 451 of the Civil Law Code of Catalonia and the general rule in Catalan law is that the legitimaries are the children who have the right to receive one quarter of the inheritance as a compulsory portion, to be divided equally among all the children. However, this compulsory portion can be satisfied with any asset of the inheritance established by the testator or can be satisfied in money by the heir.
If one of the children has died and left descendants, the compulsory portion will be received in equal parts by the living children and the children of the deceased child (in law, it is said that the children will inherit per capita and the grandchildren per stirpes, with the children of the deceased child taking the position of their parent before the deceased testator and collectively receiving what would have corresponded to their parent if alive).
If there are no children, the compulsory portion corresponds to the parents of the deceased and its amount is also one quarter of the net estate. If there are two parents, each will receive half and if only one is alive, they will receive the entire compulsory portion.
The legitimate portion of inheritances with a will in Common Law
The legitimate portion of descendants in inheritances with a will in Common Law
In Common Law, the testator can dispose of and distribute an inheritance as they wish, respecting the compulsory portions. The regulation of compulsory portions in Common Law can be found in articles 806 and following of the Civil Code.
In the Civil Code, the compulsory portions for descendants amount to two-thirds of the inheritance, which must necessarily go to the descendants, who will receive one-third as a strict compulsory portion and another third as an improvement. The one-third strict compulsory portion is divided equally among the children according to the law, but regarding the one-third improvement, it can be allocated to whichever descendants are chosen. Furthermore, when there is a surviving spouse, the law establishes in favour of the spouse a usufruct over the one-third improvement (which is subject to commutation).
Thus, for example, the one-third improvement will serve to explain how an inheritance can be distributed favouring the spouse or improving the inheritance of a legitimate child who has cared for their father more than another.
In the case of the one-third free disposal, the testator can grant the remaining third of their estate to whomever they wish, whether or not they are a family member or legitimate heir. For example, a friend's godchild or a distant relative. In this type of inheritance, the figure of the legacy also exists. The difference between inheritance and legacy is that a legacy is a specific asset received by a legatee from the testator.
In complex inheritances, sometimes the distribution of an inheritance with a will is processed and supervised by an administrator, partition accountant or executor. You can learn more about this figure at this link:
The legitime of ascendants in inheritances with a will in Common Law
If there are no descendants, but there are ascendants, the compulsory portions must also be respected. The general rule is that the compulsory portion of the parents and ascendants is half of the inheritance, unless there is a surviving spouse in the inheritance, in which case the compulsory portion of the ascendants would be one third of the inheritance.
The compulsory portion of the parents, if both are alive, is divided equally between the two, but if only one parent is alive, they will receive the entire compulsory portion. If both parents have passed away, but there are other ascendants of the same degree, the compulsory portion is divided equally between the paternal and maternal lines. Furthermore, if the ascendants are of different degrees, only the closest relatives will inherit.
How to divide an inheritance from a deceased father and a living mother?
When it is necessary to divide an inheritance in which the father has died and the mother is still alive, the will of the testator must be respected, which must always respect the applicable forced heirship rights.
How is the distribution of an inheritance without a will carried out?
However, when there is no will, if we want to know how an inheritance can be distributed we have to adhere to the provisions of the Civil Code of Common Law or the Civil Law Code of Catalonia.
Inheritance distribution without a will in Common Law
The regulation can be found in articles 912 and following of the Civil Code and in this situation, when a person dies, their heirs will be their children and, if their children have died, the grandchildren will inherit.
If a person dies and has not had children, their parents will inherit, and in the hypothetical case that they do not have any, their grandparents will inherit.
If they also do not have these relatives, in a third case the spouse would inherit and if they do not have one, the deceased's siblings. If the siblings are also deceased, their nephews and nieces would inherit.
Failing that, if the person had none of these relatives, their uncles and aunts would inherit, or if not, the rest of the fourth-degree relatives such as cousins, second uncles and aunts or their heirs.
Without heirs, the so-called unclaimed dormant inheritance would belong to the State.
Inheritance distribution without a will in Catalan law
The distribution of intestate inheritances in Catalan Law is regulated in articles 441 to 444 of the Civil Code of Catalonia.
If there is no will, the first to be called to the intestate inheritance are the children in equal parts. If one has died, the descendants of that child will receive the share that would have corresponded to them.
If there are no descendants or those of the closest degree renounce the inheritance, the legal heir would be the spouse or the civil partner, who would receive the entire inheritance. However, if the widower or civil partner coexists with descendants of the deceased, they would have the right to the universal usufruct of the inheritance.
If there are no descendants nor spouse or civil partner, the legal heirs would be the parents of the deceased, in equal parts, and if only one remains, they would receive everything. In the absence of the parents, the closest ascendants would inherit, by lines.
In the absence of the aforementioned relatives, the siblings and nephews would inherit.
In the absence of all the above relatives, the Generalitat de Catalunya would be designated as heir.
Is it possible to distribute an inheritance without all the heirs being present?
This question has several connotations, so we will divide it into parts.
Is it possible to distribute an inheritance without everyone being present?
The answer is no, as a general rule, since there must be unanimity among all the heirs in the distribution of the inheritance. However, there are cases (infrequent in practice) where it may happen, for example, if the existence of a child of a deceased parent was unknown.
Can an inheritance be distributed without the heirs having renounced or accepted it?
On many occasions, disagreements between heirs lead to the need to resort to judicial means to resolve the distribution of the estate.
On other occasions, the hereditary summons intervenes in such a way that a Notary requires the heirs to accept or reject the inheritance within a period of 30 days, which, upon expiry, is understood as accepted if they have not expressed themselves.
Be that as it may, the system provides various options to resolve these situations.
Other related questions about how to divide an inheritance
When you ask us about how an inheritance can be divided from uncles to a nephew, it also depends on whether or not there is a will. If there is one, the freely disposable third implies being able to grant a certain percentage of the estate to whoever you wish, and in this context, it could be the nephew, regardless of other relatives who precede him.
As we have seen, in inheritances without a will, one would only inherit if the deceased had no children, grandchildren, parents, grandparents, spouse, or siblings. In fact, if there is a spouse, not even the deceased’s siblings will have the option to inherit. The spouse would inherit, and after his or her death, their living relatives.
In summary, there will only be the possibility of inheriting from an uncle who is married if he has made a will naming the nephew as heir. Otherwise, the estate will be inherited by his wife and the rest of her family branch.
As we mentioned earlier, it is divided among the legitimate heirs mentioned in the stipulated order.
Broadly speaking, the steps are as follows:
- Locate the will and identify the heirs (or, failing that, draw up the declaration of heirs ab intestato deed).
- Process the acceptance of inheritance or renunciation of inheritance.
- Carry out the inventory of assets and valuation.
- Manage the payment of debts.
- Settle the community property if married under this matrimonial regime.
- Division of inheritance
- Pay inheritance taxes
- Register the inherited properties in the Land Registry
If you want to learn more about the types of inheritance division and expand your knowledge on this subject, we recommend this article:
JLA Notaries, Inheritance Notaries in Barcelona
Inheritances with a will usually resolve the estate more quickly and efficiently, respecting the provisions made by the testator. Process your inheritance with a will through us to protect your loved ones and minimise bureaucratic procedures.
We hope this article informing you about how an inheritance can be divided has been helpful and has provided you with information on the importance of the will to better safeguard your estate. If you have made a decision, arrange an appointment through the contact form on our website or by sending an email to bcn@jlanotarios.com. As Notaries in Barcelona specialising in inheritances, we will be happy to assist you.
