It depends very much on the Autonomous Community what regime the succession will have.
The concept of "partition of an inheritance" refers to the distribution of the assets that make up the inheritance among the heirs.
The partition of an inheritance can be a complex process, especially when there are disagreements between the heirs. We therefore recommend that you seek the assistance of a lawyer specialised in inheritance law.
What legal aspects are taken into account when dividing an inheritance?
1. The rights of the heirs
The heirs are legally entitled to their share of the inheritance. An inheritance is divided into thirds.
- Legitimate third. This is the third part of the inheritance reserved by law for the forced heirs or legitimated heirs of the deceased. Children and descendants are considered forced heirs with respect to their parents. If there are no parents, the legitimate heirs are the parents and ascendants. The widower is also a forced heir.
- Third of improvement. This is a part that the testator has at his disposal to improve the inheritance of one or more of his children or descendants. You must bear in mind that it can never favour third parties.
- Free disposition third. This is the part that the testator can distribute as he prefers, that is to say, he can award it to a single person or distribute it among several family members or third parties.
In the event that the deceased does not choose heirs for his third of free availability, it will be distributed among the heirs of the legitimate.
We would like to point out that whether there is a will or not, the reserved portion corresponds to each compulsory heir.
2. The presence of a will
The will contains the last will of the deceased and the law obliges to respect it as long as it does not comply with the legality in force, i.e. with the minimum legal requirements for the heirs. If there is a will, the distribution of the inheritance must follow what is written in the will. If there is no will, the law of intestate succession will be used.
3. Acceptance of the inheritance
The heirs have the option to accept an inheritance or to reject it. Acceptance or renunciation of an inheritance are voluntary and free acts by which an heir formally declares before a notary his or her willingness to accept or not to accept it.
When thinking about an inheritance, one normally focuses on the benefits (property and assets). But you also have to consider that you will inherit the liabilities (debts, tax burdens, etc.) for which you will have to pay.
4. Valuation of assets
Specifically in situations of large inheritances, it is important to carry out the inventory and valuation of these assets. This is a legal key both when the heirs agree to the distribution and when they do not.
The inventory records all the assets and liabilities of the inheritance with their valuation, which can be done by the heirs or by an independent appraiser.
You have to take into account that the law obliges to distribute the estate, but does not establish rules for the system of distribution of the assets in the distribution. Therefore, the valuation of the assets is important to avoid conflicts and to ensure fairness in the partition.
5. Payment of taxes
The partition of an inheritance is subject to taxation. Inheritance and gift tax has to be paid. The management of this tax corresponds to the Autonomous Communities, and its regulation varies from one to another.
6. Inheritances that are neither accepted nor rejected by the summoned heirs.
When a person dies and leaves an inheritance, his or her heirs must accept or reject it. If this does not happen, the inheritance is considered to be dormant. These are inheritances in which there is no owner, i.e. the inheritance is awaiting acceptance by the heirs.
If no heir accepts the inheritance, the inherited assets will pass to the State. Article 1963 of the Civil Code provides that an heir has a period of 30 years to claim an inheritance. This time limit applies whether there is no heir who has accepted or whether some heirs enjoy the inherited property.
7. Enforcement of the partition of the inheritance
The partition of the inheritance can be done by mutual agreement between the heirs. They will define which property is attributed to which heir and agree on compensation systems.
When there is no agreement, the frequent way is to choose a testamentary accountant-partitor. This person will have the task of drawing up the inventory and proceeding with the distribution of the assets.
Judicial distribution of a problematic inheritance
If the partition is problematic and one of the heirs does not agree with the proposed distribution, he or she can resort to the judicial partition of the inheritance. The court will appoint a partitioning accountant who will draw up the partitioning notebook. This is a document that specifies which assets correspond to each heir.
As you can see, the processing of an inheritance is a complicated process where there are responsibilities and possibilities of errors that can have fiscal consequences. For this reason, it is best to have a lawyer who is an expert in the matter.