Handing over or taking possession of a legacy

Any property or right in respect of which the legatee (who is the beneficiary of the bequest) may obtain a patrimonial benefit and which is not contrary to the law may be the object of a bequest, so that, for example, we may speak both of real property (such as a house), and movable property (such as a painting), or of any kind of rights (such as, for example, a season ticket to a soccer club to be able to attend its matches as a spectator). 

• Having said this, it is necessary to indicate that the object of the legacy must be determined, that is to say, specified in an adequate manner for its correct identification or, as the case may be, it must be able to be determined at the time when the legacy must be fulfilled, by means of facts or circumstances resulting from the disposition itself(i.e., for example, a specific object can be bequeathed, such as a vehicle with a license plate that allows its specific identification at any time or, as the case may be, a set of assets can be bequeathed that now, at present, are undetermined, but that in the future can be specified on the basis of predisposed rules,in its case, it is possible to bequeath a set of goods that now, in the present, are undetermined, but that in the future can be specified on the basis of some predisposed rules, as for example the harvest of two years of an agricultural property, which cannot be known right now, but it will be known when that period arrives, which, logically will vary depending on the climatic circumstances that have occurred in those years).
• Likewise, the bequest may have as its object a future thing(such as, for example, an apartment in a housing development that is in the design phase).

Additionally, as regards the types of legacies, the reader should be aware that the law allows for both real and binding legacies:

• In the case of a bequest of real effectiveness, when the same relates to specific assets or real or credit rights(such as a house, a vehicle, etc.).
• On the contrary, if it is a bequest of obligatory effectiveness, it implies that the person to whom the bequest is made must perform a specific obligation to deliver, to do or not to do in favor of the legatee(such as, for example, to pay a monthly amount of money while the legatee lives).
  

Finally, I would like to point out that the law also allows subjecting or conditioning the bequest to a condition or term, which may be either suspensive or resolutory.

• Thus, for example, a lawyer may bequeath his law firm to his son on condition that the latter becomes a lawyer(this would be a condition precedent) or, as the case may be, bequeath his law firm to his son when the latter reaches the age of 40(this would be a condition precedent).
• On the contrary, this lawyer can bequeath his law firm to his son on the condition that he does not leave the profession, so that, if he ceases to be a lawyer, he loses the rights over the law firm (resolutory condition) or, as the case may be, that he bequeaths the law firm to his son for a term of 10 years, after which it will be deferred to a third party (resolutory term).
  

The call to accept or reject the legacy on the part of the legatee, which is legally called delation, occurs, logically, at the moment of the death of the deceased, so that, once the person who has disposed of this legacy has died, the person benefited by the same (the legatee), acquires the power to accept it, to make it his own and integrate it in his estate or, on the contrary, to reject it.

• However, in case the legacy has been subject to a suspensive condition, the delation does not take place until such condition is fulfilled. Likewise, if the legatee has been ordered in favor of an unborn person, the delation takes place when said birth is verified and, finally, if the legacy is about a future thing, the delation does not take place until said future thing becomes a present reality.
  

Having said this, it is necessary to indicate that once this delation takes place, which happens, as has been indicated, upon the death of the deceased, the legatee already acquires the full right of ownership of the thing object of the legacy, if it is a legacy with real effectiveness or, as the case may be, the condition of creditor of the person encumbered with the legacy, if it is a legacy with obligatory effectiveness. 

Thus, as indicated, upon the death of the decedent, the legatee acquires the bequeathed property (or, as the case may be, the right to claim the benefit from the person encumbered by the bequest) without the need to accept or repudiate such bequest. 

However, in order to consolidate its acquisition and, if applicable, to be able to take possession of the property and make use and enjoyment thereof, it will be necessary that the legatee formally accepts the legacy (or, if applicable, repudiates it, if he does not want it) and that subsequently the formal delivery of such legacy takes place, which will be conveyed through the deed that is being developed in these questions and answers.

As a particularity it is necessary to point out that, in spite of the above mentioned, if the deceased, in his dispositions mortis causa, has established that the legatee can take possession of the bequeathed property by himself, without the need of delivery of the heir or third person, this will be possible, and it is the case that brings reason to the deed of taking possession of the bequeathed property.

Once the legatee has accepted the legacy, it is appropriate that the person burdened by the legacy (as mentioned above, normally the heirs) complies with the same, that is to say, that he/she proceeds to the formal delivery of the legacy by granting the deed of delivery of the legacy (or in its case to the fulfillment of the obligation), in which a solemn record of the delivery of the possession of the property that has been bequeathed by the deceased in favor of the legatee will be left. 

As indicated above, in the event that the decedent has provided that the legatee may take possession of the bequeathed property himself, he may proceed directly to do so without the need for delivery by the heir or third party encumbered.

As regards the extent of the legacy, that is to say, what specific aspects it covers, it is necessary to indicate that the law determines that it includes:

• The fruits and interests of the thing bequeathed since the death of the deceased.
• If it is a farm, it also includes all its buildings.
• In the case of real estate, the bequest also includes clothing, furniture and household utensils.
  

Indeed, if the deceased had provided in the succession deed (e.g., in the will) that the legatee may take possession of the legacy by himself/herself, this will be possible without the need for the heir or encumbered person to hand over the legacy, so that the beneficiary, going alone to the notary's office to execute the deed of taking possession of the legacy, will already become the new owner of the bequeathed property.

If the person burdened by the legacy does not comply with the same, so that he/she does not deliver the property object of the legacy or does not comply with the performance set, the law, as a general rule, does not allow the legatee to take possession of the legacy by himself/herself, so that, in such case, logically the legatee will have action against him/her, that is to say, he/she will be able to legally claim his/her compliance with the legacy.

<ejemplo>No obstante, como excepciones, el legatario podrá tomar por sí solo la posesión del legado si el causante lo hubiere autorizado, si se tratare de un prelegado o de un legado de usufructo universal.<ejemplo>

Likewise, it is necessary to take into account that, in these litigious cases, if it is a real estate property with access to the Property Registry, it will be possible to preventively note the existence of this legal dispute and, in case this is not possible, the law also allows the possibility of requesting a surety to guarantee that the person encumbered with the legacy does not harm it.

As indicated above, any property, right or benefit that has a patrimonial content (i.e., that can be economically evaluated) and that is not contrary to law may be the object of a bequest.

Nevertheless, and beyond this broad definition of the legislator, the Catalan inheritance law contains a series of particularities in which certain specific modalities of legacy are detailed and regulated in a concrete manner, which we will try to detail below:

• The bequest may consist of another's thing (e.g., giving a car to a nephew, when the decedent does not have a car). In such a case, the person encumbered by the bequest (usually the heir) must acquire the thing from a third party (e.g., buying a car at a dealership) and give it to the legatee.
• It is also possible that the bequest refers to an alternative thing, so that the testator leaves in the hands of the encumbered person (or of a third party) the power to choose the concrete good that is bequeathed to the legatee(let us imagine for example a subject who owns a large collection of paintings and wants to bequeath one of them to his caretaker, but leaving the concrete choice in the hands of his heir).
• It can also happen that the bequest consists of a generic thing, even in the case in which in the inheritance there are no things of the genus in question. In such a case, it shall be incumbent upon the person to whom the bequest relates to obtain such generic thing and deliver it to the legatee(let us imagine, for example, that the deceased bequeaths to the legatee 100 grams of gold).
• The bequest may also refer to money or financial assets. In such case, if the bequest refers to all the money that the testator had at death, it is understood to include both cash and demand or time deposits in financial institutions, the same rule applying if the bequest refers to deposits in a specific financial institution.
• If the thing bequeathed is encumbered with a real right of mortgage or, as the case may be, has been pledged, the heir shall be responsible for the payment of the secured debt, taking into account that if the legatee pays such debt (in the absence of payment by the heir), the legatee shall be subrogated to the position of the creditor to claim this debt from the heir. On the contrary, if the thing bequeathed is encumbered with a limited right in rem (as for example a right of usufruct), the legatee cannot ask the person encumbered by the legacy to extinguish such right.
• Likewise, the legacy may refer to a universality, such as a company, in which case it is understood that the legacy of this totality of assets is a single thing that extends to everything that was part of the unit at the death of the deceased.
• In case the bequest refers to food or periodic pensions, it shall include everything necessary for the maintenance, housing, clothing, medical care and education of the favored person, so that the encumbered person shall pay to the legatee an amount of money sufficient to address all these expenses.
• It is also possible to bequeath a credit, so that the position that the deceased holds as a creditor against a third party is transmitted to the legatee, which gives him the right to collect a certain amount of money owed or, even, it is also possible to bequeath a release of debt in favor of the debtor, so that, upon the death of the deceased, the debt is extinguished.
• In the case of bequeathing shares or participations of a company, the particularity to be taken into account is that, in such case, the political rights derived from such shares or participations can be exercised from the delation (i.e., from the death of the deceased) by the legatee, even if the possession has not yet been delivered by the heir.
• It is also possible that the deceased may order a bequest of universal usufruct, in which case he grants the legatee the power of use and enjoyment of all the assets of the estate until his death.
  

First of all, it should be pointed out that the bequest may be revoked by the testator himself if, as the case may be, he proceeds to the alienation, for valuable consideration or free of charge (i.e., for example, through a sale or donation) or, as the case may be, it may also be extinguished if the property is lost or the performance established becomes impossible(as would happen, for example, if a painting is bequeathed and it is destroyed in the fire of the dwelling where it was stored).

Beyond these initial assumptions, the law establishes a series of situations in which there are rights of third parties that have a preferential character to that of the legacy and that, therefore, determine the reduction or suppression of the legacy. Thus, this can happen:

• When the value of the bequest exceeds the amount obtained from the inheritance by the person encumbered by the bequest, we would be dealing with a so-called excessive bequest, in which case he/she has the right to reduce or eliminate it.
• Likewise, and unless the deceased has prohibited it, the heir has the right to reduce the bequests in order to secure for himself a quarter of the inherited assets, which, technically, is called the fourth falcidia or minimum inheritance share, so that if the bequeathed asset has a great economic value in relation to the remaining assets of the inheritance, to such an extent that the heir acquires a negligible percentage of the total value of the estate of the deceased, the latter has the right to reduce the existing legacy or legacies, in order to ensure the receipt of at least 25% of the value of the inheritance.
  

In the deed of delivery of the bequest, if the acceptance by the legatee has not taken place before, the legatee shall accept the bequest of the property or the established benefit in order to, immediately thereafter, receive the delivery of such property or benefit by the person encumbered by the bequest, thus consolidating its acquisition and being able, from that moment, to make use and enjoyment of the property or the possibility of claiming the performance of the obligatory benefit in which the bequest consisted.

In accordance with the provisions of the Civil Code of Catalonia, the expenses derived from the fulfillment of the bequest shall correspond to the encumbered person, while those of formalizing the delivery shall correspond to the legatee.

Thus, for example, if the legacy consists of a valuable painting and it must be moved from the heir's house to the residence of the legatee, the cost of such transportation must be borne by the heir, whereas, if for example it is a house, the cost of the deed of delivery of the legacy and its registration in the Land Registry must be borne by the beneficiary legatee.

The acquisition of an asset by means of a bequest is subject to Inheritance Tax, as established by the law regulating such tax, so that the legatee, upon accepting the bequest and receiving it, must face the tax cost derived therefrom.