It is an act of a very personal nature where we manifest what our will is in relation to the destiny of our patrimony at the moment of our death.
What do we have to include in the concept of heritage?
Both rights and obligations, that is, both movable and immovable property and bank deposits of which we are holders, as well as all those debts that are in force at the time of death.
What happens if we do not make a will?
There is a legal regime contained in the Code of Inheritance that provides, in a successive way, who are the ones who are going to receive the inheritance of the deceased:
– The descendants (the children)
– The spouse (if there are descendants, receives the life usufruct over all assets)
– The ascendants (the parents)
– Collateral relatives up to the second degree (siblings)
– The Government of Catalonia.
In the event of the death of one of the spouses, the assets pass first to the children, with the disadvantaged couple being left in the absence of a will.
Very common approach:
We often think that it is not necessary to make a will as our will more or less coincides with that already provided for by the law in this respect. This is a bad approach, since the Law must contemplate a regime that is supplementary to our will in order to ensure and regulate the destination of the estate and give us legal certainty in the event that there is no will, but it is undoubtedly better that this regime be the alternative. Never the general rule.
The advantages of making a will are:
Firstly, the fact of being able to organize the destiny of our patrimony with total fidelity to our will. In this sense, our Code of Succession offers us a very wide range of legal figures that allow us to do so; secondly, the fact of being able to decide how our heirs will distribute this inheritance, since we must take into account that the distribution is the main source of conflicts between the heirs; and thirdly, to facilitate extraordinarily the procedures of acceptance of the inheritance and therefore, to reduce the costs that imply the intervention of the professionals who carry them out. Making a will involves an expense of around 36-40 euros, which is what the intervention of the Notary costs, in addition to the cost of the advice of the lawyer who plans it, because the fact of making a will is as important as the fact of having planned it correctly.
Possible basic content of the will in terms of the estate:
– Instituting one or more persons as the universal heir to all your assets. Obligatory content.
– To name substitutes in case the instituted heirs cannot receive the inheritance. You can make as many successive substitutes as you wish.
– To constitute a legacy to attribute the legitimate one. In Catalonia, this amounts to 25% of the total value of the inheritance. Obligatory content. This percentage cannot be disposed of. The future beneficiaries are the descendants and, failing that, the ascendants.
– To constitute legacies to make specific attributions of goods or rights. Very useful when the testator wants to decide the concrete distribution of the inheritance. It is very common, for example, to designate someone as the beneficiary of some or all of the assets. Content not obligatory.
– Apart from the above, the content will be adapted to the testator’s will by means of all the legal figures contained in the Inheritance Code.
Possible basic content of the will as regards the organisation of the guardianship:
It is very interesting to be able to take advantage of the moment of making a will to designate who we want to be the guardians of our minor children, or of any relative unable to administer his or her assets and/or person, in the event of death:
– Guardians are appointed: Those appointed are not simultaneously, but successively. Therefore, they will be understood to be appointed as successive guardians, by the established order, with not joint exercise and they will follow each other in the exercise of the guardianship by the same order, in the cases of death, initial or supervening incapacity, prohibition, disqualification, excuse or removal, which will have to be declared by the judge.
– All those appointed, except for the person exercising the position of guardian, may be members of the Guardianship Council, which will be presided over by the next person appointed in order on the above-mentioned list, in accordance with the priority established by the testator on that list.
– An initial inventory of the inherited assets shall be drawn up, and the inventory contained in the deed of inheritance shall be valid as such. This inventory will be deposited with the Judge of the Civil Registry where the guardianship has been registered.
– The guardian will render annual accounts to the Council, which, for the purposes of their subsequent record, will have to be deposited with the Judge of the Civil Registry where the guardianship has been registered.
Effects of death on domestic partnerships.
– If there is a will: Whatever the will provides.
– If there is no will: The surviving partner has the ownership of the clothes, furniture and belongings that make up the common household. They do not have access to jewellery, goods of extraordinary value or furniture that are of family origin. During the year following the death of the partner, the survivor has the right to inhabit the entire common home, with the right to take possession and be fed from the assets of the deceased, in accordance with the standard of living maintained by the couple and the importance of the assets. This general regime has some exceptions depending on the circumstances of each case. If the deceased was a tenant of the dwelling, the cohabitant has the right to subrogate himself under the terms established by the legislation on urban leases.