Obstacles in the distribution of the inheritance.

What is a will?

A will is a legal instrument by which a person determines the destination of his Estate and assets. In addition, it is a formal, unilateral and solemn act where the subject expresses his will after his death.

But, the above will be limited to certain requirements established by law that must be fulfilled for its validity. These requirements that make it possible to make a will are: to be older than 14 years old and not to have intellectual incapacity.

The testamentary beneficiaries in Spain usually establish the existence of forced heirs. Thus, the children and the spouse of the deceased will have patrimonial rights over the assets and patrimony of the deceased.

Finally, there are three common wills. One of them is the holograph (written in the testator’s own handwriting). Another is the open will (granted before a notary, the document to be kept until death). And the last one, the closed one (by which he/she will not reveal his/her will and will give it to the notary).

What happens when an heir obstructs the inheritance?

Well, as we have already seen in the will, the assets and the percentages of these to be distributed are detailed in the will.

The problem arises when one of the co-heirs refuses to accept the inheritance because he/she does not agree. Moreover, it may be the case that all the heirs are in agreement except one. So the inheritance would be blocked by the refusal to sign the acceptance or renunciation.

There can be many reasons for such a blockage due to lack of agreement or cooperation. For example, it could be the case of not knowing the whereabouts of the Heir. Or, there may be open disputes against the other co-heirs. Or simply that there is disagreement with the distribution of the inheritance.

In 2015, the Voluntary Jurisdiction Act of 2 July 2015 came into force. Thus it was established for cases of immobility by any Heir a period of 30 calendar days to accept or repudiate the inheritance. Article 1005 CC provides that the Notary may communicate to the Heir, responsible of the blockage, the aforementioned term.

The legal expenses generated will be charged to all the assets of the deceased against the so-called Estate.

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What happens if no agreement is reached in the distribution of the inheritance?

After trying to reach an agreement for the division of the inheritance without any success, it is possible to go to Court.

The division of the inheritance by judicial means is a procedure of voluntary jurisdiction. For this reason, resorting to this method would delay the succession process.

What is the judicial division of the inheritance?

The co-heirs or legatees may disagree with the inventory of assets in the division and distribution of the inheritance. At this point, they can go to Court to resort to the procedure of judicial division of the inheritance. The division will be made by agreement between the co-heirs by Notary or by the Lawyer of the Administrator of Justice. This may not be so as the law expressly states when the testator has appointed a commissioner or accountant-partidor.

The first part of the procedure will be the meeting of heirs, in which the inventory of assets and heirs will be presented. The parties, when they are not in agreement with the distribution, will propose their inventories to be accepted by the others.

If there is no agreement, a verbal trial will be held. Here the object of the conflict between heirs or legatees will be determined. Only the differences between the parties arising from the meeting of heirs already listed will be the object of the trial.

The sentence will determine, once the trial has been held, what the inventory of the Estate will be. It is here when the assets must be appraised. The dean’s office of the Court will designate the judicial expert or experts who will carry out the appraisal reports.

To carry out the distribution and the division of the inheritance in a judicial way we will need the accountant partidor dativo. This figure is foreseen in article 1057 of the Civil Code. This will be a third person who will determine the hereditary goods and after this will distribute them among the interested parties. However, according to the percentage that has been calculated for each one of the heirs or legatees.

The last step will be to go to the notary to formalize the distribution of the inheritance. When it has been distributed either among the parties or judicially.

Conclusions

The will is the legal instrument by which a person determines the destiny of his or her Estate when he or she has passed away.

When a co-heir immobilizes the inheritance, he/she will have 30 calendar days to accept or repudiate the inheritance.

The parties who are not satisfied with the distribution and without agreement will go to resolve their conflicts in a verbal trial.

If this article has been of interest, we also suggest you to read the following article published on our website: About third party occupants