Spanish Civil Law: Wills, Legitime, and Succession Procedures

Guardianship (Tutela) and Organizational Structures

The Defense Attorney (Defensor Judicial) is a person appointed by the judge in a timely manner to represent a minor or disabled person when a conflict of interest arises with their legal representatives.

Appointment of a Defense Attorney

A Defense Attorney is appointed:

• When a conflict of interest exists between minors or disabled persons and their legal representatives or parents, if the law does not provide another solution.
• In the event that the guardian or conservator is not performing their duties.

Custody of Fact (Guarda de Hecho)

Custody of Fact is the situation that exists when a person takes care of a minor or incompetent person without a formal legal representative appointment.

The Succession Process

Succession involves the total transfer of assets from the deceased (the estate). The successor of the estate is the Heir, who may be appointed in two ways:

1. Testate (or Testamentary) Succession: When the deceased made a valid will.
2. Intestate Succession (Ab Intestato): When the deceased did not make a will.

Functions of Testamentary Appointment

An heir can be appointed under two titles:

• Universal Title: The heir receives the entirety of the estate or a fraction thereof.
• Particular Title (Legacy): A specific property is assigned to a legatee.

Acceptance or Rejection of the Inheritance

The inheritance can be accepted or rejected. Acceptance can be:

• Pure and Simple: The heir assumes all debts of the estate, even if they exceed the assets.
• A Benefit of Inventory: The assets are valued. The heir is only liable for debts up to the value of the inherited assets.

Rights of Heirs

Key rights related to the distribution of the estate include:

• Right of Accrual (Derecho de Acrecer): This occurs when multiple heirs are appointed. If one heir cannot inherit for any cause (e.g., predeceasing the testator or repudiating the inheritance), their share is added proportionally to the shares of the remaining heirs.
• Right of Representation (Derecho de Representación): The right of the descendants of a predeceased heir to inherit the share that the deceased heir would have received.

The Will (Testament)

A will is a unilateral legal transaction by which a person disposes of their property after death. It is a formal and highly personal legal act.

The general rule is that the last valid testament always prevails.

Types of Wills

Open Will (Testamento Abierto)

The testator dictates their will to the notary, who drafts the document. This method is preferred to avoid problems of interpretation.

Closed Will (Testamento Cerrado)

The testator writes the will themselves (or has it written) and places it in a sealed envelope, which is then delivered to the notary. The envelope must be opened by a judge within 10 days of the testator's death.

Holographic Will (Testamento Ológrafo)

This type does not require a notary. It must be entirely handwritten by an adult testator, dated, and signed on all sheets.

Forced Heirs (Legitime) and Preterition

The Legitime (Legítima) is the portion of the inheritance that is legally unavailable to the testator, as it must be reserved for forced heirs.

• In Catalonia (CAT): The Legitime is 1/4 of the estate.
• In General Spanish Law (ESP): The Legitime is 2/3 of the estate.

Structure of the Spanish Legitime (2/3)

The 2/3 reserved portion is traditionally divided:

• 1/3 Strict Legitime (Legítima Corta): Must be distributed equally among the forced heirs.
• 1/3 Improvement (Mejora): Can be distributed unequally among the forced heirs as desired by the testator.

Forced heirs have the right to claim their Legitime.

Preterition and Disinheritance

Preterition (Preterición) occurs when a forced heir is not mentioned in the will. The heir can contest the will to recover their legitimate share.

A formal way to prevent an heir from receiving their share is Disinheritance (Desheredación). This is only valid if based on legally established serious grounds, such as:

• Violence committed against the testator during a criminal process.
• Denial of food or support to the testator.

Intestate Succession (Ab Intestato)

Intestate Succession occurs when there is no valid will. In this case, the law dictates the order of inheritance (juris et de jure).

The general order of succession is:

1. Descendants (Children and Grandchildren)
2. Surviving Spouse (Widower/Widow)
3. Ascendants (Parents and Grandparents)
4. Collateral Relatives of the Second Degree (Brothers and Sisters), and Nephews/Nieces (by Right of Representation)
5. Collateral Relatives up to the Fourth Degree
6. The State or Autonomous Community (e.g., The Generalitat in Catalonia)