Most Notaries in Spain Agree That There Is a Lack of Inheritance Planning Among Citizens

Author: Editorial Staff

Source: OCU.org

If you don’t make a will, the day you pass away, your assets will be distributed as the law intends, and the outcome might surprise you if you could see it. If the legal distribution doesn’t appeal to you, even if it’s just a small detail, or if you simply want to make life easier for your heirs, it’s in your best interest to make a will. It doesn’t matter whether you are young or old.

When Should You Make a Will?

You feel well, think you are young, and see no reason to make a will. However, if you want to decide the future of your assets and save your heirs from trouble, it’s a good idea to do so. OCU makes the decision easy for you: make a will if any of these ten reasons convince you.

1. If You Don’t Like the Default Distribution

Stop and think about what would happen to your assets if you were unfortunate enough to die prematurely, for example, in an accident.

Depending on your family’s composition, your assets might end up with the least expected people. For example, if you are married and have no children but have living ascendants (parents, grandparents, great-grandparents, etc.), they will receive your inheritance. If you only had a great-grandparent and your spouse, the property would go to the great-grandparent.

2. If You Want to Make Things Easier for Your Heirs

And, moreover, save them money: making a will costs about 60 euros and spares your heirs from going through a notarial procedure, the “declaration of heirs ab intestato,” which costs between 250 and 400 euros.

3. If You Want to Assign Specific Assets

If you want to allocate specific assets to particular people, you must state it in the will. Making allocations is advisable if you know, for instance, that one child likes or needs something more than another. It is also beneficial if you believe your inheritance could be contentious because it leaves no room for dispute.

4. If You Want One Child to Receive More Than the Others

If you don’t make a will, they will inherit everything equally. But in a will, you can design an unequal distribution, benefiting your more needy or favorite children. You would have to divide the inheritance into three parts:

Of the three parts of the inheritance, the child you wish to favor can be left:

• The free disposal part.
• The improvement part.
• Their share of the strict legal share divided equally among all the children.

If the child you want to favor is disabled, since 2021, you can even leave them the strict legal share of their siblings, and if they do not use it in their lifetime, their siblings would inherit what remains.

Remember that if you have a spouse, they cannot be deprived of the usufruct of the improvement part while alive, even if the bare ownership belongs to one or more children.

5. If You Want to Disinherit a Child

If you have a child who has treated you poorly, you might be able to disinherit them.

The only way is to explicitly state it in the will and mention the specific reason for disinheriting them, which must be true and among the reasons the law accepts as valid:

• Your child has denied you support when you were in need.
• They have physically abused you.
• They have seriously insulted you.
• Some courts have accepted as a reason the psychological abuse that abandoning relationships and showing no interest in the parents implies.

If the affected party contests the will and proves you used another excuse or that your accusations were unfounded, they might win, and in that case, they would receive their strict legal share. So a safer option is to leave your black sheep the least the law allows, which is what they would get by equally dividing the strict legal share among the siblings (and if you have only one child, the solution is simple: spend the money as you see fit while you are alive).

6. If You Want to Secure Your Spouse’s Position

If you are married and have descendants or ascendants, legally, your spouse will only receive the usufruct over a part of your inheritance: half, if you only have parents, grandparents, etc., or one-third, if you have children, grandchildren, etc. But if you make a will, you can:

• Leave them property in ownership (remember that usufruct assets can only be used or rented, but not sold).
• Leave them a more generous usufruct over the entire inheritance.
• Allow the other heirs and the widower to exchange the widow’s usufruct for money or a portion of the inheritance in full ownership and equivalent value.

7. If You Want to Secure Your Domestic Partner’s Position

Not all regions grant equal inheritance rights to married couples and domestic partners, and where they do, there is still some confusion. So if you are not married but partnered and want to ensure that your partner receives part of your inheritance (or all, if you have no forced heirs), provide for it in a will.

8. If You Want to Leave a Gift

In the will, you can leave someone a “legacy,” that is, a part of the inheritance not subject to inheritance tax and debts, which are issues that affect only the heirs but not the legatees. For example, you can leave something to a grandchild or bequeath something to a museum, etc.: a jewel, a painting, the copyright of a book you wrote, an apartment…

Legacies cannot violate the legitimate shares of the forced heirs, and if they do, when you are gone, they will have to be “reduced” so that everyone receives the minimums that the law recognizes for them.

9. If You Have No Forced Heirs

If you have no descendants, no living parents or other ancestors, and are not married (or in a formal domestic partnership in regions where they have the same inheritance rights as spouses), you can do whatever you want with your assets, for example, leave them to a friend or a charitable institution.

If you don’t make a will, they could end up in the hands of a relative you dislike or go to the State coffers, but if you make a will, anyone you don’t mention in your provisions will be automatically excluded.

10. If You Want Your Family’s Assets to Stay in the Family

If you are married and have no children, you might want two things:

• Benefit your spouse with your assets if you die first.
• If something remains of your inheritance when your spouse dies, you want it to return to your blood family instead of ending up with your in-laws, whom you may not even know.

Moreover, it is very likely that your spouse wants the same for their own assets.

By making a will, each of you can designate a “fiduciary” heir, that is, a primary heir, and a “trustee” heir, or secondary heir, who will receive upon the death of the fiduciary the assets that the first did not spend.

You can also order the fiduciary to inherit and enjoy certain assets, but to preserve and transmit them to the trustee, ensuring they remain within the family.