By Carlos Baos (Lawyer) • 26 January 2023 • 10:00
Image: Billion Photos/Shutterstock
Unfortunately, will disputes are very common. In today’s article we would like to analyse the main differences between heir and legatee in Spain. Two figures provided for in the Spanish Civil Code, with very different regulations and features and which can lead to complex situations.
To begin with, we must make a clear distinction between the two. The heir is the one that inherits universally. That is, he or she receives all the assets and debts of the deceased. On the contrary, the legatee will only receive the specific assets (a property, a vehicle, etc.) that the testator has left him or her in the will.
Can someone grant a will naming several heirs and, at the same time, leaving a legacy to another person? Yes. But it is important to bear in mind that not all countries allow their citizens to dispose of their assets at will, as is the case under British law. In Spain, Belgium, Germany or France (among others) the law reserves a certain portion of the assets of the deceased to the so-called ‘forced heirs’. In Spain, this portion or ‘legitima’ is quantified as two thirds of the inheritance. Therefore, although the testator may name as many legatees as he wishes, the portion reserved to the forced heirs can’t be undermined.
What happens if the legacy consists of a mortgaged house? Should the legatee be responsible for this debt? No. Legatees are not liable for the debts of the inheritance. A mortgage would be considered a debt of the estate and, as such, it must be satisfied with the assets of the inheritance. Moreover, the legatee may claim against the heir if he/she does not settle this debt. Or he/she could pay the mortgage off and claim that amount from them.
Do the heirs have any way of protecting themselves against the debts of the inheritance? Yes. In order to prevent the possible debts of the inheritance from affecting their own assets, the heirs have the so-called acceptance of the inheritance with ‘benefit of inventory’. However, we will leave the explanation of how this type of acceptance works, for a future article.
At White-Baos we have been advising our clients in Inheritance Law for more than 20
years. If you have any doubts about the inheritance process, how to draft your will, etc. please do not hesitate to contact us. We will study your case and offer you expert legal advice.
You may be interested in the following services and articles:
Problems with one heir who does not want to agree on the inheritance. Legal advice.
Inheritances in Spain. What happens with the rented properties?. Unsettled estate or Yacente
Contest and Challenge a Spanish Will. New court success. Spanish forced heirs’ rights. Application of Spanish law to an expat heir. Legal advice
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
White & Baos 2023 – All Rights Reserved.
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Lawyer Carlos Baos has been advising on variety of expat-related legal issues for years and weekly column offers free weekly insights.
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