Will - Jesús Benavides Notary Office
Inheritance and donations


Step 1

What is a will?

It is the notarial document in which a person decides how his or her assets and rights should be distributed after his or her death.

Step 2

What documentation do I need to make a will before a notary public?

Step 3

How much does it cost to notarize a will?

See indicative budget

This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.

Step 4

More frequently asked questions

What does a will consist of?

As indicated above, a will is a document in which a person, called the testator, determines the manner in which his succession is to be ordered, that is, the way in which his estate is to be distributed upon his death, establishing which person or persons will become the holders of all his rights and obligations upon the testator's death.

What is a will for?

The will is a very useful document, as it allows us to organize how we want our assets (and our obligations, let's not forget) to be distributed when we die, so that, during our lifetime, we can determine what will happen to our estate when we pass away, for example, establishing who will own our home, who will get our money, or our car, etc.

Likewise, in a will, the testator can establish other declarations of will that can guide his heirs in managing his absence, such as establishing wishes on how he would like his estate to be managed or the way in which relationships between family members should be developed (all of them being mere non-binding declarations of will, but which the heirs can take into account if they consider it appropriate in the interest of respecting the will of the deceased testator), as well as to record certain information that may be taken into account by third parties in order to adopt relevant decisions, such as, for example, the indication of the person we would like to be appointed as guardian of minor children, in the event that the testator, as their parent, should die (information which, if applicable, will be taken into account by the judicial body that must adopt a decision in this respect). 

Additionally, the will can also establish digital wills in case of death, a relevant issue in the 21st century, thus determining how we want our social networks and digital legacy to be managed upon our death, as well as the person in charge of it.

Why is it convenient to grant a will?

Although a priori it may seem an unimportant task, making a will is one of the most important acts that any person can perform, since by paying a few tens of euros (no more than 40-50 euros approximately) we can determine how we want our estate to be distributed when we pass away, establishing which persons will be the owners of all our assets (what we will legally call heirs or legatees), as well as the proportion or the specific assets that should correspond to each of them.

This is undoubtedly very important, from the point of view of the testator himself, since nobody better than ourselves knows our life and our family relationships that determine to which person or persons in particular we want to bequeath all our assets and rights, so that, thanks to having a will, it is we ourselves who, as owners of our estate, decide what will happen to it when we die.

On the contrary, if we do not grant such a will, upon our death, our estate will be distributed among the persons and in the manner determined by law, not in favor of the persons we want and in the way we would like, which, no doubt, no one really wants.

<ejemplo>Así pues, por ejemplo, si un sujeto tiene varios hijos, y con uno de ellos no ha tenido una buena relación a lo largo de su vida, si al fallecer, desea que a éste se le asigne una menor proporción de la herencia, en favor del resto de hijos con los que sí ha tenido buena relación, otorgando un testamento en que así se establezca no habrá problema con ello, mientras que, si por el contrario, esta persona no dispone de testamento, su patrimonio se distribuirá a partes iguales entre todos los hijos, siendo indiferente que con uno de ellos haya tenido una mala relación personal o afectiva.<ejemplo>

Likewise, there may be other more extreme cases in which a person, for example, does not have close but distant family (such as a cousin), with whom he/she does not have any relationship, but upon death, not having granted a will, that person is the one who finally inherits, and not another and others, such as friends, with whom we have maintained a very close friendship and to whom we would have really liked our estate to have been assigned.

In addition, from the point of view of our relatives or heirs, granting a will is a step that will help them a lot to manage our inheritance, since its acceptance and management will be much easier. On the contrary, if a person does not have a will, upon death, it is necessary to go through the intestate succession procedure, which is longer and more costly for the family, with all the negative consequences that this may entail.

<ejemplo>Imaginemos pues, por ejemplo, que, al fallecer una persona, sus herederos necesitan acceder rápidamente al dinero de sus cuentas para poder sostener la economía familiar. Si existe testamento, la aceptación de la herencia será mucho más rápida, mientras que, si no hay testamento, se deberá realizar antes una declaración de herederos abintestato, es decir, un trámite previo que dilatará todo el proceso y que además encarecerá su coste.<ejemplo>

Does the will have to be registered somewhere?

When a person makes a will before a notary, the content of the will, due to its very personal and confidential nature, remains under the protection of the notary. In other words, the contents need not be known to anyone other than the testator himself and the authorizing notary (and, if applicable, the notary's official who assisted the notary in drafting the will).

However, whenever the notary public authorizes a will, he/she is obliged, immediately after signing it, to communicate the existence of said will to the General Register of Last Wills.

The notary simply sends a communication to the Registry informing that a certain person (name, surname and ID number) went to his notary's office on the date and time indicated to execute a will. In other words, the existence of a new will is simply communicated, but never its contents. Thus, when a person dies, the first step to be taken, once the death certificate of the deceased is obtained, is to contact the Registry of Last Wills to check whether the deceased had a will or not. And if so, which notary has custody of the original will in order to request an authentic or official copy of it. It will be at that moment, when it will be possible to have access to know the content of the will and never before.

What is the basic principle governing probate matters?

In testamentary matters, the basic principle that determines the same is that of freedom of testament, which means that testate succession is governed by the will of the testator expressed in a will granted in accordance with the law, so that, effectively, when granting a will, the person who makes it (who is called the testator) has all the right and freedom to determine how his estate should be distributed upon his death, fixing which persons and in what proportion or in what manner all his assets, rights and obligations should be distributed.

However, as will be seen in all these questions that will be developed below, this principle of freedom to testate has to be combined with a series of limitations established by law, so that the inheritance regulations establish a series of restrictions that oblige the testator to bequeath part of his assets to certain specific persons (relatives), in case they exist, over whom the testator does not have the capacity to decide.

Thus, beyond these limitations established by law and which will be explained below, the most important thing is to know that any person, when granting his will, has complete freedom to choose which persons will be his heirs or legatees.

See more frequently asked questions

What is the fundamental content of the will?

In a will, what is essential is that the testator (the person who grants it) designates an heir or heirs, i.e. the persons to whom he wishes to pass on his estate upon his death. Thus, a will is only valid if an heir is actually designated.

In addition, if the testator so wishes, he may also designate legate legatees, i.e., determine that a specific asset of his estate be assigned to a specific person he designates(such as, for example, designating his children as heirs, but determining as legatee of his vehicle another relative, so that his car is assigned to a specific nephew, to indicate a hypothetical case).

Having said this, it is necessary to specify that in the Catalan testamentary field there is a specific specialty in which, in case the testator is subject to the so-called Tortosa law (i.e. is an inhabitant of that geographical area), it will be possible to distribute or order the whole succession by means of legacies (i.e. assigning each specific asset of our estate to a specific person) without specifically designating an heir.

Likewise, wills that do not institute an heir can also be valid if, if applicable, a universal executor is appointed, that is to say, a person to whom the testator entrusts the task of delivering the inheritance to the persons he has designated or, if applicable, to destine it to the purposes expressed in the will or that he has indicated in confidence(which would be the case, for example, if someone appoints a third party as universal executor and entrusts him to destine his inheritance to charitable causes, without determining which ones,for example, if someone appoints a third party as universal executor and entrusts him to allocate his inheritance to charitable causes, without determining which ones, with the task of determining to which specific associations or foundations he donates the estate of the deceased falling to this person appointed as universal executor).

Who can make a will?

The regulations allow any person of fourteen years of age or older who is in full use of his or her intellectual and volitional capacities to grant a will, so that, a sensu contrario, wills cannot be granted by persons under fourteen years of age or persons who do not have natural capacity at the time of the granting of the will (i.e., persons who suffer psychological or psychic alterations that do not allow them to govern themselves and understand the legal consequences of their acts, as would be the case, for example, with someone suffering from a neurodegenerative disease, such as Alzheimer's).

In any case, the law establishes a presumption of capacity to testate, so that it will be up to the Notary who must authorize the deed, the assessment of the judgment of capacity of the person who intends to testate in the specific case.

What types of wills exist in the regulations?

In accordance with the regulations in force, the most common will is the so-called notarial open will, which is the one granted before a Notary Public. For this purpose, the testator expresses his will to the Notary, orally or in writing, and it is the notary public who drafts the will in accordance with the expressed will.

In addition to this modality, the Catalan legislation recognizes the so-called closed notarial will and the holographic will, whose particularities will be explained below, while it does not recognize the validity of the will granted before witnesses, as is the case with other civil legislation.

Can a person with a sensory disability make a will?

Of course, a person with a sensory disability (such as blindness or deafness) has every right to make a will whenever he/she wishes, for which purpose the Notary will provide all the necessary means and support, without any additional financial burden.

Likewise, the Catalan civil law determines that the fact of having a sensory disability is not a reason for witnesses to intervene in the will of the person who suffers from it.

Is there any reason why a physician or a witness should intervene in a will?

In principle, his intervention will not be necessary, so that only the testator appears before the Notary, who makes the judgment of capacity, assessing whether the person has sufficient natural capacity, and if this is positive, there are no problems to grant the will.

However, in the first place, the Catalan legislation allows that, in the case of persons who are not judicially incapacitated, but about whom the Notary may have doubts about their natural capacity, the Notary may request the intervention of two physicians (i.e. forensic doctors) to certify whether the person has sufficient natural capacity or lucidity to grant the will.

In addition, in exceptional circumstances, both the testator and the Notary may request the intervention of witnesses in the will (so that in the future they may certify the veracity of the testator's will as expressed in the will); whereas, if the testator does not know or cannot sign, the intervention of the witnesses, in such a case, will be mandatory.

In both cases, if witnesses must intervene, they must be two, who must have the capacity to understand the testator and the Notary, as well as the capacity to sign the document, without it being necessary that they know the testator or that they have the same residence. That said, as far as their personal qualities are concerned, the following persons may not be witnesses to a will:

  • Minors and those incapable of testating.
  • Those convicted of forgery of documents, slander or false testimony.
  • Those favored by the will (to avoid an obvious conflict of interest).
  • The spouse, stable partner or relatives within the fourth degree of consanguinity and the second degree of affinity of the instituted heirs or of the notary (in order to avoid a conflict of interest).

In what language can a will be executed?

In Catalonia, a will can be granted in either of the two official languages of the autonomous community, that is to say, in Catalan or in Spanish, with the testator being responsible for the choice of the specific language.

In addition, it is also possible to grant the will in another language, if the Notary knows it (such as English) or, if he/she does not know it, by using an interpreter. In this case, the will will be drafted in one of the two official languages of Catalonia (i.e., Catalan or Spanish) and, if the grantor so requests, in addition, in his or her non-official language.

This question of language, although it may seem unimportant, in reality it is not, because depending on the words used, their meaning and interpretation may vary, so it is very important to choose correctly the language in which we wish to write our will (it should be the one we usually use and with which we have more fluency), It is also important to choose the specific words and expressions, because if we resort to obscure or ambiguous terms, difficult to understand, it is possible that in the future interpretative doubts may arise that may lead our heirs to unpleasant situations of confrontation, and even judicial litigation.

What is an open will?

The notarial open will is the most common of all those that are granted. In it, the testator goes to the Notary's office and expresses before the Notary his wills, either orally or by handing him a written document, and the Notary, in view of them, drafts the will, with expression of the place, date and time of the granting.

Then, once the will is ready, it is read before the testator or by the testator himself, after which it is signed by the grantor and by the authorizing Notary, as well as by the witnesses who, if any, may have attended.

What is a closed will and what are its particularities?

The closed will is another modality, much less common, which is characterized by the fact that it is the testator who writes his will (either in autograph, Braille or by any other technical means), expressing the place and date, and signing all the pages of the document and at the end of the will.

Then, this will, written by the testator himself, must be placed in a sealed envelope, which cannot be opened without damaging it.

Once this is done, the testator must go to the Notary of his choice, present the envelope and state that it is a closed will. In view of this, the Notary will accept the order, and on the same cover of the envelope, will extend a brief diligence in which it will be stated the name of the testator, that said envelope contains a will and that this has been drawn up by the testator.

Subsequently, the Notary shall protocolize the sealed envelope and incorporate it into a record, in accordance with the provisions of the notarial regulations and with an indication of the time.

Finally, at the time of the testator's death, at the request of an interested party, the envelope will be opened before two suitable witnesses, after which it will be notarized by the Notary by authorizing a new act.

What is the holographic will and what are its particularities?

The holographic will is a third type of will, also rarely used, in which the testator (who must be of legal age or an emancipated minor), determines the way to order his succession in writing, in a document, indicating the place and date of succession, without any additional formalities.

It is therefore a posteriori, normally when the testator dies, that a third person presents it before a Notary in order to obtain recognition of its validity, which is legally known as adveración.

In this process, the competent Notary shall verify its authenticity in accordance with the law (for example, by summoning witnesses who witnessed how the testator drafted this holographic will), after which, if it is sufficiently accredited, he shall notarize it, while if not, he shall deny the notarization, leaving the rights of the interested parties to go to court for the recognition of its validity.

However, it is necessary to point out that this type of will is subject to an expiration period, so that if it is not presented within four years of the testator's death, it will not be possible to notarize it.

What type of will is most appropriate?

Undoubtedly, there is no single answer to this question, since depending on the personal circumstances of the testators, one or another modality may be more convenient.

However, taking into account the advantages and disadvantages of each one, in my opinion, the most appropriate option is undoubtedly the notarial open will, since it is a notarial document, authorized by a notary public, in which paying a few euros, we will receive advice from a legal professional, a public official, specialist in inheritance law, who will adequately reflect the way in which we want to order our succession, advising us in our choice and drafting the document by using clear and accurate terms and expressions, which will avoid in the future interpretative doubts that may lead to litigious situations among our heirs.

Likewise, in relation to the confidentiality of the will, the notarial open will also guarantees the same, because if we do not want our heirs to know how we want to distribute our inheritance, simply, when granting the will, by not withdrawing a copy of it, the issue is resolved, since only the Notary who has authorized the will has the original of it, and no one can have access to it until the time of our death, in which case, people who have a legitimate interest (such as an heir) may request a copy of it.

Can a will be revoked?

Indeed, there is no problem in revoking a will, so that any person can grant a will today and, if he/she later decides to modify his/her will, he/she can revoke it, leaving it without effect or, if necessary (which is the most common), grant another one with a different content. In such a case, the law determines that the granting of another valid will produces the full revocation of the previous will.

It is also possible to partially revoke a will, so that the previous will partially maintains its validity, in everything that is not revoked in the later will or in everything that does not oppose or contradict the latter. In any case, this option is not very convenient, since the coexistence of two wills, partially valid, can give rise to interpretative doubts that can be easily dissipated by completely revoking the previous will and granting a new one in which our wills are gathered together.

Furthermore, it must be taken into account that, in the scope of Catalan civil law, the law establishes that dispositions in favor of the spouse or common-law partner become ineffective if, after the will has been granted, the testator separates in fact or legally or divorces his spouse or common-law partner, unless, from the context of the will, it is clear that the testator would have maintained the disposition even in cases of separation or divorce.

In addition, this particular rule shall apply in the same way to dispositions made in favor of relatives who are only relatives of the spouse or stable partner, in case of separation or divorce of the latter.

What is necessary for a person to be designated as an heir or legatee of the testator?

In order for a person, whether natural or legal, to succeed the testator, so that his or her disposition is valid, it will be necessary that said person has what is legally called succession capacity, which will be discussed below.

As far as natural persons are concerned, all persons who, at the time of the opening of the succession (i.e. as of the testator's death), have already been born or conceived and who survive the testator, have the capacity to succeed.

  • Thus, any living person (relatives, friends, acquaintances or persons with whom we have any kind of relationship or for any reason we wish) can be named as heir or legatee.
  • In addition, heirs or legatees can also be named to the conceived ones, that is, fetuses of human beings that have been conceived by their progenitors, that are in a period of development in the maternal claustrum, and that will be born within the ordinary term of nine months from their conception, as long as this birth actually takes place in an effective manner, so that this life project (or fetus) becomes a living human being independent from its progenitor.

As regards legal entities (such as an association or a foundation), those that are legally constituted at the time of the opening of the succession, that is, as of the death of the testator, will have the capacity to succeed (and therefore be named successor of any person who grants a will and, when the time comes, succeed to the same). Special mention should be made when the testator leaves his entire estate to one or more NGOs or non-profit FOUNDATIONS, which is known as a SOLIDARITY TESTAMENT.

In addition, it is also possible for the testator to name as heir or legatee a legal entity to be created upon his death (as, for example, may happen with a very wealthy person who wishes to create a foundation upon his death to allocate his estate or part of it to charitable causes).

What is inheritance unworthiness and what are its effects?

Inheritance unworthiness includes a set of situations in which, as a result of a series of illegal actions committed by a person, he/she loses the capacity to succeed a specific person who has been affected by such illegality, so that he/she cannot succeed this affected or injured person, even if he/she has been designated as heir or legatee, since such designation will become ineffective.

Thus, the Civil Code of Catalonia recognizes the following causes of inheritance unworthiness:

  • The person who has been convicted by a final judgment handed down in a criminal trial for having maliciously killed or attempted to kill the deceased, his/her spouse, the person with whom he/she lived as a stable partner or a descendant or ascendant of the deceased.
  • The person who has been convicted by a final judgment handed down in a criminal trial for having fraudulently committed crimes of serious injury, against freedom, torture, against moral integrity or against sexual freedom and indemnity, if the aggravated person is the causer, his spouse, the person with whom he lived in stable partnership or a descendant or ascendant of the causer.
  • He who has been convicted by a final judgment handed down in a criminal trial for having slandered the injurer, if he has accused him of a crime for which the law establishes a prison sentence of not less than three years.
  • The person who has been convicted by a final judgment in a criminal trial for having given false testimony against the tortfeasor, if he has been charged with a crime for which the law establishes a prison sentence of not less than three years.
  • The person who has been convicted by a final judgment handed down in a criminal trial for having committed a crime against family rights and duties, in the succession of the aggravated person or of a legal representative of the aggravated person.
  • Parents who have been suspended or deprived of parental authority over the child causing the succession, for a cause attributable to them.
  • The one who has maliciously induced the testator to grant, revoke or modify a will, a succession agreement or any other disposition due to the death of the testator or has prevented him from doing so, as well as the one who, knowing these facts, has taken advantage of them.
  • The one who has destroyed, hidden or altered the will or other disposition by cause of death of the testator.

Thus, if a person is in any of these situations, the law establishes that he/she is unworthy to succeed, so that, even if the testator designates a person in any of these situations as heir or legatee (which is unlikely to happen), this designation becomes ineffective (i.e., it is considered not to have been made), in view of the seriousness of the facts described in each of the cases), this designation becomes ineffective (that is to say, it is considered not to have been made), which, logically, must be invoked or claimed by the person or persons who will benefit from the succession when the unworthiness is declared.

In any case, this situation is more of an assumption that, in most of the occasions, will lead to a scenario of judicial conflict, because if the testator has designated as heir or legatee a person over whom a cause of unworthiness weighs, the persons harmed by this designation (that is to say, those who would be heirs in the event that the unworthy person cannot inherit) must file the corresponding legal action, for which the law grants them a period of four years from the time the cause of ineffectiveness is known or can be known or, in any case, four years from the time the unworthy person takes possession of the assets as heir or legatee. In such a case, if the legal action is successful, the unworthy person must deliver the assets of the inheritance to the legitimate heirs or legatees, and must also return the fruits obtained (such as, for example, the rent of a rented house, or the interest on bank products) and be liable for possible deterioration or loss of the assets forming part of the inheritance or legacy.

However, we cannot end the analysis of the causes of unworthiness without mentioning that they can be distorted by the reconciliation and/or forgiveness of the offended party, so that the causes of unworthiness of succession that we have analyzed do not produce effects (so that, in short, they will be able to inherit the testator's assets) if:

  • The testator grants the disposition in favor of the unworthy (as for example by granting a will) knowing the cause of unworthiness.
  • The testator, knowing the cause of unworthiness, reconciles with the unworthy person by undoubted acts or pardons him in a public deed.

Likewise, it must be taken into account that this reconciliation or pardon is irrevocable, so that, if it occurs, neither the deceased himself nor other persons may later allege it for the purpose of depriving the previously undeserving of his inheritance rights.

What is ineligibility to inherit?

In this case, inability to succeed refers to a series of circumstances in which, based on the specific personal relationships between the deceased and this person, this person becomes "unfit" (i.e. does not have the capacity) to succeed the deceased, since such relationships may cast a shadow of suspicion on the influence that may have been exerted on the deceased to achieve this disposition in his favor.

Therefore, in accordance with the Civil Code of Catalonia, they are not eligible to succeed:

  • The notary who authorizes the succession instrument, his or her spouse, the person with whom he or she lives in stable partnership and the relatives of the notary within the fourth degree of consanguinity and the second degree of affinity.
  • The testimonies, facultatives, experts and interpreters who intervene in the granting of the instrument of succession, as well as the person who writes the closed will at the request of the testator.
  • The religious who assisted the testator during his last illness, as well as the order, community, institution or religious denomination to which the testator belongs.
  • The guardian, before the approval of the final accounts of the guardianship, unless he/she is an ascendant, descendant, spouse or sibling of the deceased.

In addition, the law establishes that natural or legal persons and their dependent caregivers who have provided care, residential or similar services to the deceased, by virtue of a contractual relationship, can only be favored in the succession of the deceased if it is ordered in an open notarial will or in a succession agreement.

Thus, again, if a person is in any of these situations, the law establishes that he/she is unfit to succeed, so that, even if the testator designates a person incurring in any of these situations as heir or legatee, this designation becomes ineffective (i.e., it is considered as not made), which logically must be invoked or claimed by the person or persons who will be benefited in the succession upon the declaration of unworthiness, which again leads to the declaration of unworthiness, logically, this designation will have to be invoked or claimed by the person or persons who will benefit from the succession when the unworthiness is declared, which, again, probably leads to a scenario of judicial conflict between both interested parties.

What are the relevant aspects to be taken into account when naming an heir?

When naming an heir, the testator must take into account the following relevant circumstances that, undoubtedly, must be assessed in order to adequately express his or her last will and testament. Thus:

First of all, it is essential to understand that, except in very exceptional cases (such as when the testator is subject to Tortosa law or, if applicable, if a universal executor is appointed, a particularity that will be developed later on), the will, in order to be valid, must necessarily contain the designation of an heir (or several, of course), otherwise it will be null and void. 

So, if we want to make a will, the first thing we must be clear about is whom we will name as heirs.

Likewise, in relation to the manner of distributing his estate, the testator should bear in mind that he may proceed as follows:

  • It can, of course, simply designate as universal heir a certain person or persons, who will then be entitled to receive the entire estate.
  • You may also, if you wish, in addition to designating a universal heir, designate a certain person as legatee (or, technically, as heir of a certain thing), thus assigning him a specific asset or assets (for example, bequeathing a car to a nephew who is very fond of it), so that the heirs receive the entire inheritance, while that person designated as legatee only receives that specific asset.
  • In addition, he may also, if he wishes, beyond the appointment of universal heir, designate a certain person as heir instituted in usufruct, so that the designated person will have the use and enjoyment of the inheritance until his death, after which, the inheritance will be deferred in favor of the subsequent instituted heir or the universal heir and, if there are none, in favor of the intestate heirs of the testator at the time of extinguishment of the usufruct.

That said, in the event that the testator wishes to name several persons as heirs, the following rules should be taken into account:

  • If several persons are named as heirs, without assignment of shares, the law determines that they will be called in equal shares(thus, for example, if Mr. Juan names his three friends, Messrs. Maria, Antonio and Francisco as heirs, all of them will be entitled to 33% of the inheritance).
  • If the heirs are called some individually, and others collectively, it is understood that this collectivity is attributed a proportion equal to that which corresponds to those designated individually (thus, for example, if Mr. Juan names as heirs Messrs. Pablo, Miriam and the children of Mercedes [being these 4], 33% of the inheritance will correspond to Pablo, another 33% to Miriam and the remaining 33% will have to be distributed among the 4 children of Mercedes, that is to say, 8.25% of the inheritance will correspond to each one of the children of Mercedes).
  • If the will assigns inheritance quotas that add up to more or less than the totality of the inheritance, the excess or defect must be reduced or completed in proportion among the heirs(thus, for example, if Mr. Juan names Rafael, Blanca and José María as heirs, assigning each one 30%, if nothing is said about the remaining 10%, this will be distributed proportionally among Rafael, Blanca and José María, so that finally 33.33% of the inheritance will correspond to each one of them).
  • If in the will quotas are assigned to some heirs and not to others, the remaining portion of the inheritance corresponds to the latter in equal parts(for example, if Mr. Juan names Maria as heir with 40%, and also names Pere and Oscar as heirs without indicating what percentage corresponds to each one, the law determines that this unassigned 60% must be divided equally between Pere and Oscar, so that 30% corresponds to each one).

Additionally, if the testator wishes to designate his children or relatives as heirs, it is necessary to take into account the following particularities:

  • Si el testador nombra herederos a sus hijos, sin designación de nombres (es decir, sin identificar en concreto a qué hijos nombra herederos), se entiende que están incluidos todos ellos, con aplicación del orden legal de llamamientos para la sucesión intestada.

    <ejemplo>Así pues, por ejemplo, si el Sr. Juan, que tiene 3 hijos (Manuel, Guillermo y Luís Miguel), nombra herederos a sus hijos, sin especificar sus nombres, todos ellos serán llamados a la herencia al fallecer el sr. Juan, correspondiendo un 33% del caudal hereditario a cada uno de ellos.<ejemplo>
  • On the other hand, if the testator calls his heirs or legatees without designation of names, by means of the expressions my heirs, legitimate heirs, intestate heirs, next of kin, relatives, successors, those to whom by right corresponds or mine, or by using similar expressions, it is understood that are called as testamentary heirs or legatees the relatives who, at the time the inheritance or legacy was deferred, would have succeeded ab intestato to the testator (that is, according to the order applicable when there is no will), in accordance with the legal order of callings, including the spouse or cohabitant in stable partnership, and with the limit of the fourth degree, unless it is inferred that their will is otherwise.

    Thus, in such a case, as indicated, the rules of intestate succession will apply, which are detailed in the section of this website regarding the act of declaration of heirs.

    In any case, these generic designations generate legal uncertainty, so that they are not very advisable, since the most appropriate, in order to avoid interpretative doubts, is to clearly designate, in a concrete manner, which persons we wish to designate as heirs or legatees.
  • Asimismo, es posible excluir en el testamento a determinadas personas llamadas a la sucesión intestada (por ejemplo, a un hijo en concreto), en cuyo caso la herencia se diferirá a favor del resto de llamados a suceder de acuerdo con las normas de la sucesión intestada que no han sido excluidos.

    <ejemplo>Así pues, por ejemplo, si el Sr. Juan, siendo viudo, tiene 3 hijos, y al testar designa como herederos a sus descendientes, pero excluye expresamente a uno de ellos, al fallecer serán llamados a la herencia los otros dos hijos, pues así lo establece el orden legal para suceder, sin perjuicio de los derechos mínimos que le corresponden al hijo excluido, de conformidad con la ley, los cuales se detallarán más adelante.<ejemplo>

Are there any limitations to the testator's ability to distribute his inheritance as he wishes?

Indeed, as indicated above, in testamentary matters, there is a principle of dispositive freedom, by virtue of which, the testator is free to designate as heir or heirs the person he/she wishes.

However, and in spite of this general principle, it is no less true that the law contains a series of limitations that restrict the testator's capacity, so that, by virtue of these limitations, certain persons, if any, by virtue of their family or personal relationship with the testator, are entitled to obtain a part of the inheritance.

In the case of the Catalan Civil Law, these limitations are imposed by the institutions of the legitimate and the fourth widow, which will be discussed in the following questions.

What is the legitimate share and who is entitled to it?

The legitimate share is a right that the law confers in favor of certain persons, by virtue of which, these persons will have the right to obtain a certain patrimonial value of the inheritance of the deceased. Thus, if during the life of the deceased there is any of these persons, they will have the right to obtain a portion of his inheritance, once he dies.

Having said that, with regard to the specific persons entitled to the legitimate share, the law determines that the following family members are entitled to it:

  • Si el causante tiene hijos, son legitimarios todos ellos por partes iguales.

    <ejemplo>Así pues, por ejemplo, si la Sra. María tiene tres hijos, todos ellos serán sus legitimarios, de modo que, a grandes rasgos, los tres tendrán derecho a repartirse el 25% de su herencia, correspondiendo pues un 8,33% a cada uno de ellos.<ejemplo>
  • Si el causante tuviere hijos, pero alguno de ellos hubiere fallecido antes (o hubiere sido desheredado o declarado indigno) y dicho hijo fallecido tuviere descendientes (por ejemplo, nietos), estos descendientes tendrán derecho a la legítima, en virtud del llamado derecho de representación.

    <ejemplo>Así pues, siguiendo el ejemplo anterior, si uno de los tres hijos falleciere antes que el Sr. Juan, pero aquél tuviere a su vez una hija (es decir, una nieta del Sr. Juan), esta nieta tendrá derecho a la legítima de ese 8,33% que correspondía a su padre fallecido, en virtud del citado derecho de representación.<ejemplo>
  • A falta de descendientes (es decir, si el causante no tiene hijos o nietos u otros parientes ulteriores), la legítima corresponde a sus progenitores, es decir, a sus padres. Si vivieren ambos, ésta se repartirá por mitades entre ellos, y si sólo viviere uno, se asignará su totalidad al mismo.

    <ejemplo>Así pues, siguiendo el ejemplo anterior, si el Sr. Juan falleciere sin hijos, pero su madre aún viviere, ésta tendrá derecho al 25% de la herencia de su hijo Juan fallecido.<ejemplo>

What is the amount of the legitimate share and how is it calculated?

Roughly speaking, the legitimate share is one quarter (25%) of the value of the inheritance, calculated as follows:

  • The value of the assets of the estate at the time of the death of the deceased will be taken as the starting point, minus the debts and, if applicable, the expenses of the last illness and of the burial or cremation.
  • On the value obtained above, the value of the assets given or otherwise disposed of free of charge by the deceased in the ten years preceding his death shall be added.

From the figure obtained by applying the above rules, as indicated, 25% will be calculated, and this will be the amount of the reserved portion, which must be distributed equally among the legitimated beneficiaries.

How will the inheritance be paid?

If the persons to whom the reserved portion is due have also been designated as heirs of the deceased, in an amount that already reaches the amount of the reserved portion, there will be no problem with it.

However, in the event that the heirs have not also been designated as heirs, once these heirs have accepted the inheritance and taken possession of the same, they must proceed to pay the legitimate share to the heirs, which can be done either by delivering assets of the inheritance or, if applicable, by paying it in money. However, it is important to emphasize, in this sense, that the decision of with which assets it is decided to pay the legitima corresponds only to the heir. The only limitation that the law places for this is that the property that is given as a legitimate can not be encumbered.

Are there any cases in which persons who would normally be entitled to a legitimate share can be denied it?

Indeed, as has been indicated, the law determines that certain relatives (as we have seen, specifically, children and descendants and, in their absence, the parents of the deceased) have the right to the reserved portion, which, in an ordinary situation, cannot be denied, so that, even if the deceased does not want it, this 25% of his inheritance will be assigned to his legitimated beneficiaries. 

However, the law establishes a series of exceptional cases in which it is possible to deprive the legitimate beneficiary of his right to the legitimate share, which are detailed below:

  • First, the causes of unworthiness already detailed in a previous question.
  • The denial of maintenance to the testator or to his spouse or cohabitant in stable partnership, or to the ascendants or descendants of the testator, in cases where there is a legal obligation to provide it.
  • Serious mistreatment of the testator, his spouse or stable partner, or the ascendants or descendants of the testator.
  • The suspension or deprivation of the power of the legitimated parent over the deceased child or of the power of the legitimated child over a grandchild of the deceased, in both cases for a cause attributable to the person suspended or deprived of the power.
  • The manifest and continuous absence of a family relationship between the deceased and the beneficiary, if it is due to a cause exclusively attributable to the beneficiary.

Thus, if any of these exceptional causes occur, the law allows disinheriting the beneficiary and depriving him/her of this right, as long as it is clearly expressed in a will, codicil or inheritance pact, with details of the specific cause that motivates it.

What is the fourth widowhood?

The fourth estate is a right that corresponds to the widowed spouse or cohabitant in stable partnership (commonly known as domestic partnership), in the event that, with their own assets and income, they do not have sufficient economic resources to meet their basic needs. Thus, in such a case, the widowed spouse or common-law partner will be entitled to obtain from the inheritance the amount necessary to meet these needs, with a limit of 25% of the liquid estate.

For this purpose, in order to determine the amount in which these needs are fixed, the standard of living prior to death that was enjoyed during the marriage or stable cohabitation must be assessed.

What are hereditary substitutions?

Inheritance substitutions are another figure that the testator must take into account when drafting his will, since they can be very appropriate to order our succession in case the person initially designated as heir dies before or rejects the inheritance, so that he cannot or does not want to accept our inheritance and the same is deferred to a third person, which we designate ourselves through this inheritance substitution. In short, this figure allows to cover eventualities in case the person we wish to inherit our estate, does not want or cannot do it.

<ejemplo>A modo de ejemplo, si el Sr. Juan designa como heredero a su amigo Pedro, y como sustituto vulgar a su amigo Alejandro, si Pedro fallece sin aceptar la herencia o la rechaza, Alejandro se convertirá en el heredero de Juan.<ejemplo>

Thus, the so-called vulgar substitution makes it possible to institute a later or second heir, in case the previous or first heir does not become one because he does not want to or because he is unable to.

With regard to how to carry out this substitution, it is necessary to take into account the following issues:

  • The law allows the designation of two or more substitutes. Thus, for example, Mr. Juan can name his friend Pere as heir and, in the event of the latter's death or rejection of his inheritance, name Pere's two children, Cristina and Carla, as substitutes.
  • Likewise, the law allows that two or more heirs can be substituted by the same substitute. Thus, for example, Mr. Juan can designate as heirs, in equal parts, his two daughters (who have no descendants), establishing that, if either of them should die or be unable to accept the inheritance, they would be substituted by his nephew Matías, in both cases, so that, if one or both of his daughters should die, the corresponding part or, the whole inheritance, will be deferred in favor of Matías.
  • It is also possible for several heirs to be appointed as common substitutes among themselves, so that if any of them is unable or unwilling to accept the inheritance, the corresponding part will be distributed among the other co-heirs in proportion to their share(thus, for example, if Mr. John appoints his friends Mark (30%), Mary (20%) and Francis (50%) as heirs, if Francis dies or rejects the inheritance, his 50% will be distributed among Mark and Mary, with the latter finally receiving 60% and Mary the remaining 40%).

Finally, in relation to its effects, the law determines that this substitution is understood to have occurred at the same time as the substituted party, so that, even if the substitute dies before the call to the substituted party, said common substitute transmits his right to his successors.

<ejemplo>Así pues, si el Sr. Juan designa como heredero a su amiga Jéssica, y como sustituta de ésta a su otra amiga Carmen (la cual tiene una hija), si Carmen fallece, y también muere posteriormente Jéssica, aunque Carmen hubiera muerto antes, al ser la sustituta de Jéssica, los derechos que tiene sobre la herencia del sr. Juan se mantienen y, en este caso, se trasladan a su citada hija.<ejemplo>

Furthermore, it is necessary to state for the record that the substitute succeeds the testate with the same forms, conditions, legacies and burdens that had been imposed on the previous heir who has not become the testate.

Once the particularities of common substitution have been understood, it is time to analyze two additional types of substitution, called pupillary substitution and exemplary substitution:

  • In the case of guardianship substitution, it is the substitution that can be made by the parents of a minor under 14 years of age (legally called impuberal) for their own inheritance, so that, in short, it is the parents of the minor who, in another's will (that is, in their own will, since the child, being under 14 years of age, does not have the capacity to make a will), designate the heir of their son or daughter in the event that the latter dies before reaching the age of 14 years of age.
  • As regards the exemplary substitution, it has a very similar nature to the previous one, but in this case it is projected on incapacitated persons, so that their ascendants (normally parents), can order the succession of both (their own and that of the incapacitated child), thus avoiding that the rules of intestate succession are applied and the inheritance ends up in the hands of unwanted relatives. In order to be able to resort to this exemplary substitution, it will be necessary that the following requirements are met:
  • ~The incapacitated person must have been judicially incapacitated during his or her lifetime.
  • ~The incapacitated person must not have granted a valid will or succession agreement.
  • ~Exemplary substitution must be ordered by an ascendant of the incapacitated person who is his or her legitimatist.
  • ~The ascendant who orders the exemplary substitution (i.e., the father or mother), must leave the substituted the legitimate that corresponds to him/her.

What is a legacy?

A bequest consists of a particular attribution made in favor of a specific person, so that the testator determines that, beyond those who are his heirs, a specific asset of his estate is assigned to a specific person, as, for example, when a testator bequeaths a specific vehicle (of the many that he may have) to a nephew of his who holds it in high esteem.

Thus, in short, this institution may be of interest to the testator when, apart from whom he wishes to designate as heir to his estate, he wishes to pass on a specific asset of his property to a specific person who is not his universal heir.

What are the fundamental characteristics of legacies?

In the first place, and as far as the formal aspect is concerned, in order for a legacy to be ordered, it is necessary that it be made by means of a will, a codicil or testamentary memory.

Having said this, in relation to who can be designated as legatee, it is necessary to indicate that it can be any living natural person, as well as those conceived (that is, fetuses in gestation period) or even in favor of non-conceived persons (as, for example, in favor of grandchildren, in case the testator's children do not have them yet, but he can foresee that this will happen).

Having said this, regarding the type of assets that can be the object of a legacy, the law establishes that they can be any asset or right in respect of which the legatee (who is the recipient benefited by the legacy) can obtain a patrimonial benefit, so that we can talk about real estate (such as a house) or movable assets (such as a painting) or rights (such as a season ticket to a soccer club to be able to attend its matches as a spectator). In addition, legacies can also have obligatory effectiveness, so that the person encumbered by the legacy (person to whom the testator imposes the obligation to comply with the legacy) must comply with certain obligations in favor of the legatee.

Likewise, with regard to the existing types of bequests, the law makes a very interesting detailing of the typologies, establishing that they can range from a certain thing (such as, for example, a house), to more varied cases, such as the bequest of something else, the bequest of a generic thing, the bequest of money or financial assets, the bequest of food or periodic pensions, the bequest of credit or debt or of shares and social participations. In order to know more details of the particularities of each one of them, you can consult the Civil Code of Catalonia and your trustworthy Notary, who will be pleased to solve them.

How will the delivery of the legacy be managed?

At the time of the death of the deceased, the legatee will be called to the succession, so that, if he accepts the legacy, he consolidates his acquisition and becomes full owner of the thing encumbered or, as the case may be, creditor of the person encumbered by the legacy, so that he is entitled to have the thing delivered to him or to have the obligation imposed fulfilled.

However, logically, if you wish, you can also renounce it and not accept it (technically it is called repudiation).

In any case, the interested parties should know that, beyond the legacies that may have been provided for, the heir is entitled to receive from the inheritance the so-called fourth falcidia or minimum inheritance share, that is, a minimum of 25% of the liquid estate, so that, if the legacy imposed reduces the amount of the inheritance to a threshold lower than this limit, the heir is entitled to reduce the legacy until he/she can keep this indicated percentage.

Is it possible to designate an heir under condition?

Indeed, it is possible to institute a person as heir, but imposing a condition in this respect, so that only when the condition is fulfilled, the inheritance condition will be acquired. However, the law does not allow the imposition of any kind of condition, but only those that meet certain requirements can be valid, which will be discussed below:

  • In the first place, as it cannot be otherwise, unlawful conditions will not be admissible, so that those conditions that oblige the potential heir to commit an act contrary to the law(such as, for example, the commission of a crime against a third person) will be considered as not having been set.
  • Likewise, conditions that are impossible to fulfill(such as, for example, that the heir visit the planet Mars), as well as those that are derisory(such as, for example, shaking hands with all the inhabitants of a large city) or perplexing (which are those that contain contradictions that make it impossible to know what the testator really wanted) will not be valid either.
  • In addition, the conditions that oblige not to challenge the will (that is, not to file legal actions to claim something different from what is established in it, since this would affect the fundamental right to effective judicial protection), as well as the so-called captatory conditions (which are those in which the institution of an heir is conditioned to the heir naming the testator or a third party to be designated as heir), will not be valid either.

Having made these initial clarifications, and entering the fundamental nucleus of this matter, it is necessary to indicate that the Civil Code of Catalonia only recognizes validity to the conditions that have suspensive nature, that is to say, those in which the acquisition of the right is conditioned to the fulfillment of the condition (as, for example, a lawyer father who bequeaths his law firm to his son with the condition that this one becomes a lawyer. Thus, if his son studies law and practices as a lawyer fulfilling all the requirements of the law, in such a case he will acquire the status of heir, whereas, if he does not practice this profession, he will not be able to acquire the status of heir). On the contrary, the so-called resolutory conditions are not allowed, which are those in which a right is acquired but the maintenance of the same is subject to the fulfillment of a condition (thus, it would not be valid the institution of heir of a father who bequeaths a factory to a son or daughter in exchange for not divorcing his current spouse, because once the son has accepted the inheritance, it would not be admissible that he loses it by a subsequent act that would leave without effect this already acquired right).

Thus, in the event that the testator imposes a suspensive condition, the inheritance does not vest in his favor until the condition is fulfilled, so that, if he dies without fulfilling it, he does not receive any inheritance, neither he nor his heirs.

In any case, in order to protect the deceased inheritance, the law allows the conditional heir to take provisional possession of the inheritance and to administer it with the powers and limitations that, if applicable, were established by the deceased or, failing that, with those corresponding to a universal executor.

Is it possible to designate a third person to be the one who will end up designating my heir?

Indeed, the law recognizes a series of cases in which it is possible to designate a person to determine which person or persons will be our heirs. This possibility is instrumented through the so-called fiduciary dispositions and trust heirs, which will be discussed below.

Thus, in the first place, as regards fiduciary dispositions, this is the situation that occurs when the testator entrusts either his spouse (or stable partner) or one of his relatives with the designation of an heir.

If the testator transfers such charge to his spouse or stable partner, the latter may designate as heir the child or children he determines, or his descendants (even if his ascendant is living), as well as assign to each of them an equal or unequal share of the inheritance, as he considers. In this regard, it will be necessary to take into account the following:

  • The election or distribution must be made by will, inheritance or public deed.
  • If the spouse or stable partner dies without designating the specific heirs (or renounces by public deed to do so), this designation will be made by two close relatives (if so established by the testator in his will), while, if nothing has been said in this respect, the inheritance will be deferred to all the children in equal parts (and if any of them has died, the corresponding part, to his descendants).

In addition, as has been indicated, it is possible to entrust two close relatives with the institution of heirs, so that they are the ones who determine which children or their descendants (i.e. grandchildren) acquire the inheritance, as well as the proportion that corresponds to each one. In this case, it will be necessary to take into account the following particularities:

  • The power of election and distribution will correspond to two blood relatives, one from each line of parents, with the closest kinship relationship with the children or descendants (for example, a paternal and maternal uncle or aunt, respectively, of the testator), and preference will be given to the oldest relatives within each line.
  • In order for a relative to be able to exercise this power, it is necessary that he/she has full capacity to dispose and to succeed the testator, without having renounced this possibility.
  • The designated relatives shall make their choice and distribution among the children or grandchildren of the testator, in the manner they deem convenient and in accordance with the instructions of the testator, by means of a public deed, which shall be irrevocable.
  • In the event of not making the election and distribution, the law determines that the inheritance is to be given to the children in equal parts, and if one of them has already died, the corresponding part will be attributed to his or her descendants.

In view of this first option and its two modalities, it is time to analyze the figure of the heirs or legatees of trust, which is the institution that allows the designation of an heir or legatee so that he/she may give the assets of the estate the destination confidentially entrusted by the testator (such as, for example, to destine the inheritance for charitable causes).

Thus, if a testator decides to appoint an heir or legatee in trust, the latter, within six months of learning of the death of the deceased, must draw up an inventory of the estate, after which, and once accepted, proceed to allocate the assets to the purposes determined by the testator.

For all this work, the heirs or legatees of trust are entitled to receive the remuneration determined by the testator, and if he has not done so, 5% of the value of the assets subject to trust.

What are trusts and what are they for?

Trusts are a figure that, so to speak, allow the transmission of an inheritance in two acts, so that the testator, at the time of ordering his succession, designates an heir, but does not directly transmit his assets to him, but previously, this is acquired by a third interposed person, who temporarily manages the inheritance until a term or condition established by the testator is fulfilled, after which, the inheritance is finally delivered to the definitive heir.

  • From a legal point of view, this trust involves the settlor (who is the person who orders his succession), the trustee (who is the person who temporarily acquires the inheritance) and the trustee (who is the person who finally receives the inheritance when the term or condition has been fulfilled).

This type of figure can be useful for people with high net worth who, for example, want to leave their inheritance to heirs of a young age, since by ordering a trust until the heirs reach a certain adult age (for example, 25 or 30 years old), this will allow that, once they have reached an adequate degree of maturity, these heirs can manage said assets properly without squandering them, thus avoiding that they have access to them at an early age (16-18 years old), with the inconveniences that this may entail.

What are the key aspects to be taken into account in relation to trusts?

In relation to trusts, it is necessary to point out that, within the scope of Catalan Civil Law, its regulation is very profuse and extensive, so that addressing it in full would go beyond the scope of this informative exercise. However, having said that, as the most relevant issues to be taken into account, the following should be highlighted:

  • As regards their instrumentation, the law establishes that they can be ordered by means of a succession agreement, will, codicil or donation by cause of death.
  • The trust, as already indicated, may be subject to term or condition, so that, initially, the trustee acquires the inheritance, and when the established term or condition is fulfilled, it is then when the trust is deferred in favor of the trustee (i.e., the final recipient of the inheritance).
  • If a trust has been imposed, upon the death of the testator, the trustee (that "intermediate" or temporary heir) must, within six months, draw up an inventory of all the assets of the estate, and must also provide sufficient guarantee to ensure the proper management of the inherited assets and, if applicable, the capacity to respond with respect to any damages that may be caused.
  • The trustee must then register his or her succession title with the Land Registry and invest the remaining inheritance money in prudently safe bank deposits. The trustee then assumes the obligation to conserve and prudently administer the trust assets.
  • During the term of the trust, the trustee has the right to the use and enjoyment of the assets of the inheritance, as well as to receive the fruits and income generated.
  • Likewise, it is necessary to indicate that the fiduciary heir (i.e., this "intermediate" or temporary heir), in compensation for his work, and unless the deceased has forbidden it, has the right to withdraw and make his own a fourth part of the trust patrimony (i.e., to keep 25% of the inheritance), which is legally called fourth trebelianic or free quota, taking into account, however, that the settlor may reduce or increase this amount or subject it to certain rules that he establishes.
  • During the term of the trust, as a general rule, the trustee (remember, this "intermediate" or temporary heir) may not alienate or record the trust assets, except in cases specified by law, for example, if he obtains the settlor's authorization, if he uses the proceeds of the sale to pay debts or, as the case may be, if a judicial authorization is obtained.
  • Finally, once the term or condition imposed is fulfilled, the delation in favor of the trustee (the final recipient of the assets) takes place, which attributes to him/her the condition of heir. For this purpose, the trustee must deliver the possession of the assets of the inheritance within one month after being required to do so by notarial or judicial means, after which, the transfer of assets will be completed in the terms established by the deceased who established this trust.

What is an executor and what is his or her function?

An executor is an office appointed by the testator in his will, to whom he entrusts the performance of a specific task, which can range from a generic task to manage the delivery of the universality of the inheritance to the heirs (in which case it would be a universal executor) to specific tasks related to specific testamentary dispositions (such as, for example, managing the sale of a collection of paintings and subsequently distributing the amount obtained among the heirs).

This figure may be interesting in the case of wealthy individuals with a large and dispersed patrimony (many properties in different jurisdictions, multiple assets in different financial institutions, etc.), in which it is convenient to appoint a person to properly order and inventory all this patrimony and thus, later, distribute it in an orderly manner among the heirs designated by the deceased. 

Any person who has the capacity to bind himself/herself can be an executor and, as it cannot be otherwise, his/her position is voluntary, but once accepted, it cannot be renounced unless there is a just cause. It is also necessary to know that, unless the deceased has provided that the office be exercised free of charge, the performance of this function entails the right to receive the remuneration fixed by the deceased or, failing that, 5% of the value of the assets in the case of the universal executor and 2% of the assets subject to partition, in the case of the so-called partitioning accountants.

Thus, once the office has been accepted, the executor will be responsible for fulfilling the general duty of delivering the inheritance in its universality to the heirs or, as the case may be, the particular duty entrusted to him/her, for which purpose the law grants him/her broad dispositive powers (such as, for example, to dispose of assets of the inheritance, collect credits, withdraw deposits, etc.). 

Finally, upon completion of the assignment, the executor will finish his or her work and will cease to hold office.

What happens if I die without a will?

If a person dies without a will, his succession will be governed by the rules of the so-called intestate succession, so that it is the law that determines which persons will be his heirs, according to the degree of kinship of the relatives of the deceased.

Thus, if we wish to avoid the law determining which of our relatives will inherit our estate, the easiest and most convenient thing to do is to make a will, taking into account everything explained in the preceding questions.

Next, we will try to explain the rules that, in the scope of the Civil Law of Catalonia, determine to which persons the inheritance will be deferred, in the case that the deceased has died without a will or, if applicable, the named heirs do not become heirs. Thus:

In the first place, if the deceased has children, the inheritance will be deferred to them, in equal parts if there are several of them. In the event that any of the children of the deceased had predeceased the deceased, but had their own descendants, such as children (i.e. grandchildren of the deceased), they will take the place of their father in the succession of their grandfather, by virtue of the so-called right of representation.

<ejemplo>Así pues, por ejemplo, si el Sr. Juan fallece sin testamento, habiendo tenido dos hijas llamados Antonia y Regina, habiendo fallecido Antonia hace ya años (antes que su padre), pero contando con una hija llamada Olga (es decir, nieta del Sr. Juan), la herencia se deferirá al 50% entre Regina (hija superviviente del Sr. Juan) y Olga (nieta del Sr. Juan, en virtud del derecho de representación).<ejemplo>

That said, in the event that all the children (or other subsequent descendants) repudiate the inheritance, it will be deferred to the descendants of the next degree (for example, to the grandchildren) divided by lineage and equally among the members of each lineage (i.e., not according to the number of grandchildren, for example, but according to the number of children from which said grandchildren come).

<ejemplo>Así pues, si el Sr. Juan fallece sin testamento, teniendo dos hijas, llamadas Regina y Olga, teniendo la primera un hijo (llamado Pere) y la segunda 3 hijas, si Regina y Olga no aceptan la herencia de su padre, la misma se deferirá a favor de estos nietos, correspondiendo a Pere el 50% (porque es el único nieto de su estirpe), mientras que las 3 hijas de Olga, que provienen de la misma estirpe, se deberán repartir el 50% restante, correspondiéndoles pues un 16,66% a cada una.<ejemplo>

However, this is not the case in Catalonia if the deceased was married or was the common-law partner of another person. In this case, in the event that all the children (or other subsequent descendants) repudiate the inheritance, the inheritance will be deferred to the descendants of the next degree (for example, to the grandchildren) as long as the deceased was not married or in a stable relationship with another person.

That said, if the deceased was married or in a stable union (known as a domestic partnership), the intestate succession will be governed by the following rules:

Secondly, if the deceased has no children or other descendants, the inheritance will be deferred to the surviving spouse or life partner.

<ejemplo>Así pues, por ejemplo, si el sr. Juan estaba casado con la Sra. María, sin que hubieran tenido hijos, al fallecer el sr. Juan sin testamento, la Sra. María se convertirá en su heredera.<ejemplo>

However, if the deceased did have children or their descendants, the surviving widowed spouse or surviving cohabitant will have the right to the universal usufruct of the estate, i.e., to the use and enjoyment of all the assets of the estate until his or her death. In relation to this right, however, it is necessary to indicate that, if applicable, the widowed spouse or the surviving cohabitant in stable partnership has the right to commute this usufruct (i.e. to exchange it) for an attribution of 25% of the inheritance and, in addition, to the usufruct of the marital home, having for this purpose a period of 1 year as from the death of the deceased. Thus, for example, if the surviving spouse is not interested in having the usufruct of the entire inheritance, he/she can choose to receive 25% of the value of the inheritance in cash (if the heirs accept it) and also maintain the usufruct of the habitual residence, so that he/she can continue to live there until his/her death, if he/she so wishes.

In any case, it is necessary to indicate that the surviving widowed spouse or cohabitant in stable partnership will not have this right if at the death of the deceased they were already legally or de facto separated, or if a marriage annulment, divorce or separation lawsuit was pending.

Beyond these two assumptions, thirdly, if the deceased dies without children or descendants, and also without a spouse or stable cohabitant, the inheritance will be deferred to the parents, in equal parts, if they are alive (i.e., to the parents of the deceased). In addition, subsidiarily, if the deceased had no living parents either, but had other living ascendants (such as, for example, a grandfather or grandmother), the inheritance will be deferred to them.

Fourth, if the deceased dies without children or descendants, without a spouse or stable cohabitant and also without ascendants, the inheritance will be deferred to the collaterals, such as, for example, to his brother or brothers, if he has any.

  • If there are several siblings, the inheritance will be divided among them in equal parts.
  • If there are several siblings, but some of them have died before the deceased (i.e., died before the deceased) but leaving living children (i.e., nephews of the deceased), these nephews will take the place of their father or mother, by virtue of the aforementioned right of representation, but by lineage (i.e., they share the % that would have corresponded to their father or mother among the different nephews and nieces that exist). Except in the case that all the brothers had died, that the nephews will inherit by heads and not by lineages.
  • Ultimately, if the deceased has no direct siblings or nieces or nephews (children of his or her siblings), the inheritance will be deferred to other collateral relatives, up to the fourth degree (such as cousins), if any.

Finally, in the hypothetical case that the deceased did not have any of the aforementioned relatives, so that there is no person who could succeed him/her, the inheritance will be deferred in favor of the Generalitat de Catalunya, which will allocate the assets of the inheritance or the value obtained from their disposal to social welfare or cultural establishments, preferably located in the municipality of the last residence of the deceased.

How can I get a copy of my will?

When a will is granted, if the testator wishes, a simple copy of the will can be given to him so that his heirs already have it at their disposal, so that, upon his death, the management of the acceptance of the inheritance will be much easier.

Also, if you wish, for privacy reasons, you may choose not to withdraw the copy, so that no one will know what your dispositions are until your death, at which time the legitimated persons (such as the designated heirs) may request a copy from the authorizing Notary for the purpose of managing the acceptance of the inheritance.

Of course, if the testator chooses not to withdraw the copy at the time of executing the will, he/she can go to the Notary's office at any time afterwards and request a copy if he/she changes his/her mind about it.

Who can ask for a copy of the will?

The testament before a notary is a very personal act. This means that the notary will only issue a simple copy of the will at the express request of the testator. Never of any other person. To preserve and guarantee the privacy and wishes of the testator himself.

When is the original copy of the will issued?

During the testator's lifetime, he/she may request from the notary as many simple copies as he/she wishes, always upon payment of the same in accordance with the notary fee. However, the authentic or original copy of the will can only be issued once the testator has passed away, for which the death of the testator must be accredited with the corresponding death certificate.

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