When discussing inheritances and wills, one of the elements that often cause confusion is the differences between heir and legatee in Spain. An heir is someone who inherits the deceased’s estate as a universal successor. In other words, the heir inherits all the assets, but also the debts. On the other hand, the legatee is only entitled to receive the specific assets given by the deceased in his or her will. A painting, a car, a house, etc. In today’s article we try to answer the most common questions raised by this subject.
Is it true that the heir is liable for the debts of the inheritance, even with his own assets, and the legatee is not?.
In principle, yes. Legatees are never liable for the debts of the inheritance with their own assets. However, the situation of the heirs is different. It all depends on how they accept the inheritance. In case of an unconditional acceptance (“aceptación pura y simple”) the heir will be liable for all debts, even with his or her own assets.
Is there a way to prevent this from happening?.
Yes. If the heirs have concerns about the debts that the deceased may have, they have a tool to “protect themselves”. We are referring to the acceptance of the inheritance with “benefit of inventory”. This form of acceptance, regulated in article 1010 of the Civil Code, must be executed in front of a notary, and allows the heir’s own assets to be ‘protected’.
Can a legacy be detrimental to the legitimate rights of the heirs?.
Some countries such as Spain, France, Belgium, etc. establish what is commonly known as the “reserved portion of the estate”, “forced share”, etc. This portion of the estate of the decease is reserved, by law, to certain heirs (parents, children, etc.). In Spanish law, this share is 2/3 of the deceased’s assets, and must always be respected. Any legacy that prevents the heirs from receiving this share, won’t be valid and will have to be reduced or annulled.
What happens when the asset to be handed over to the legatee has a mortgage?.
As explained above, one of the differences between heir and legatee in Spain is that the latter is not liable for the debts. What if the legacy is, for instance, a mortgaged property?. Is the legatee forced to pay it?. The answer is still NO. In principle, the mortgage debt must be paid out of the estate, and it is up to the heirs to take care of it. If the heirs don’t pay the debt and the bank repossesses and auctions off the property, the legatee can claim against the heirs. The legatee can also claim against them if he or she voluntarily decides to pay the debt.
What happens to legacies when the estate has more debts than assets?.
This will depend, to a large extent, on the way in which the heirs have accepted the inheritance. As explained above, in cases of unconditional acceptance, the heirs would be liable even with their own assets. However, if the heirs accept the inheritance with “benefit of inventory”, the legacy would only be handed over if all debts have been settled first.
The economic, financial, and personal implications of a misplanned inheritance can be very significant. At White-Baos Abogados we are experts in Inheritance Law. If you have any doubts about the differences between heir and legatee in Spain, need assistance on how to draft your will, or require legal advice in an inheritance process, do not hesitate to contact us. We will study your case and offer you expert legal advice.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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