Keys to making a will: What is the legitimate? What happens to inheritance if I don't have a will? Should I leave a tutor?

• VIRGINIA HERNANDEZ

  @vir_hernandez

• CRISTINA G. LUCIO

  @cglucio

• GRACIA PABLOS (GRAPHICS)

• DANIEL IZEDDIN - España | V. HERNANDEZ - España | C.G. LUCIO (PODCAST)

Updated Monday,17April2023-17:28

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Do I have a good will? For this question there are three possible answers: 'yes', 'no' or 'I have no will'. The last two can be a big problem for ours in case we die. "The family is what remains after distributing the inheritance," says lawyer Ángel Seisdedos, who specializes in inheritance and succession. "You can not get an idea of the number of people in my office who have fought for a thousand euros," he warns.

But mine don't. They would never do that. You will have the certainty (because you will not see it) if you make a will (which will not cost you more than 100 euros) and not a current one of 'distribution to my spouse and my children in equal parts' without specifying anything else.

"The moment you already have some money or property you should make a will," advises Seisdedos, who remembers that you can make as many as you want throughout life, which is not something immovable. "You have to plan, just like you don't pack a trip half an hour before the plane leaves. It is a job more to think than to execute. You have to establish a strategy, like everything in law."

The best decision is not to leave 'proindivisos', which are the properties that are shared. That is, the family home and the beach floor that you bequeath to your offspring in equal parts. "The interesting thing would be to distribute the properties individually," explains Óscar Cano, also an expert lawyer in Inheritance and Family, and with a law firm in Barcelona.

"An example, you have two floors and three children. The best thing would be to distribute them between two of them and the third to compensate it economically, "he adds. Because, if not, "they will have to agree on the price and it is not always easy. The family can end up fighting and even some property end up at auction."

FROM SPOUSE TO FAMILY (NOT OURS)

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GRACE PABLOS

If we do not grant a will, the order of succession establishes that the widowed spouse will be the sole heir if there are no descendants (children or grandchildren) or ascendants (parents or grandparents). If the spouse does not exist, the next in the order of succession would be the siblings (or nephews) but they are excluded from any future inheritance once it is in the hands of the spouse (unless the spouse grants a will in another sense).

This is due to a situation that many jurists consider unjust: the spouse of a marriage without descendants or ascendants dies, the widowed spouse inherits everything and, upon his death, it passes to his brothers or nephews (and failing that, uncles or cousins). In this way, the patrimony of the first spouse remains in the hands of his in-laws, even if he is survived by other blood relatives. If a will is made, it can be foreseen (and determined) what would happen in these situations.

But you don't have time. You are very lazy and you can think of anything better to do. What does it matter if I do not go to the notary to make a will if I do not have much patrimony either. It would be better to stop looking for excuses and know that if you do not test the process is longer and more expensive for those who survive us.

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First it will be necessary to make the declaration of heirs, followed by an act in the notary or in the court called 'judgment of notoriety', so that two witnesses and an heir attest to the number of children of the deceased, and that the announcement is published in town halls and notaries for a couple of months in case there is a surprise heir. All would be in equal parts and without dividing the goods.

HOW MUCH DOES IT COST TO MAKE A WILL?

The price charged by notaries for a will is between 50 and 100 euros, and they are unipersonal (even if it is a marriage in community will have to make two). If you are clear about what you want, it will not take more than an hour to do it.

The family is what remains after the inheritance is distributed. The number of people fighting for a thousand euros

Ángel Seisdedos, expert lawyer in Inheritance

"The same notary already advises you, but you can go to a lawyer specialized in Inheritance before and the consultation will increase the expense," explains Oscar Cano. "It's fast and cheap, the thing is, we always seem to find something better to do."

DOES MY PARTNER INHERIT IF I DON'T HAVE A WILL?

That's another one. That most believe that if you are married in community of property your house and assets will go to your spouse even if you do not have a will. But the Romans already established 2,000 years ago that it was not so and maybe you are finding out now.

"If you have children and you don't have a will, half that corresponds to you goes to your offspring. If not, it passes to your parents and a third for your partner, "clarifies Ángel Seisdedos about the order of succession at the state level in our country. Therefore, descendants can ask for their share of the inheritance and, if the widower or widower does not have liquidity to satisfy it, be forced to sell the house.

YOU DISINHERIT A CHILD BUT NOT THE GRANDCHILDREN

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G.P.

Although it is not easy, there are a number of assumptions under which it is possible to disinherit a child. The law includes a series of "causes of indignity" that have been qualified in repeated rulings of the Supreme Court. These causes are:

- Attacking, injuring or mistreating the perpetrator or certain relatives

- Committing crimes against the liberty, inter alia, of the deceased or some of his relatives

- False report

- Failure to report violent death of the testator

- Illegally forcing the testator to make or change a will

- Illegally prevent making a will and other assumptions related to inheritance

- Neglecting the testator, if it is a person with a disability

But when a child who has had children is disinherited, the latter has the right to claim, at least, the strict reserved share that would have corresponded to the parent.

Seisdedos adds that a typical mistake is to think that the widow's usufruct allows not having to part with the property, being the habitual residence. Have the right to live in the house for life. "That usufruct is a third of the inheritance of the husband or wife, but that third can be paid," he recalls.

"Tomorrow if one of the children asks him to sell the house by filing a lawsuit, the judge can rule in favor of the heir, because by law no one is obliged to stay in a proindiviso or condominium (a property in common)." You can ask either party to divide that common good and the judge enters to say if it is sold or auctioned if there is no agreement, "he says. "I have seen people over 70 years old on the street because a son has asked for the inheritance and they did not have an inheritance planning done."

"Can children be left last to inherit? Yes, it can be done. Can clauses be established in the will so that if a child wants to throw his father or mother out of the house, he has some penalty? You can. All these clauses can be contemplated if a will is made."

If no guardian is appointed, the judge will decide and perhaps our children will end up with those we would not have wanted.

Óscar Cano, expert lawyer in Families

And the legitimate one? It is the minimum part of the inheritance that by law belongs to the forced heirs and the testator cannot deprive them of it. These heirs are the children and descendants. If there are none, the parents and ascendants. And, if it exists, the widower or widower, who will be in usufruct.

Inheritances are divided into three thirds. This, which would be the third of legitimate; then there is that of free disposition, of which the testator can choose who will be the beneficiary without it being necessary that they be descendants or relatives; and the third of improvement, which the testator may dispose of to improve one or more of his children or descendants. And, if you do not have them, your heirs.

CHILDREN OF DIFFERENT MARRIAGES

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The Spanish Civil Code does not differentiate between children born in and out of wedlock, all descendants have the same inheritance rights.

But there is a situation in which there are differences: in case a spouse brings children of previous partners and has married under a regime of separation of property. Children of other couples will not be entitled to inherit anything that is not strictly from their parent, unlike potential children of that marriage, who are legal heirs of both parents.

ARE BANK ACCOUNTS BLOCKED?

Many times we think that if we are holders in the bank accounts of the elders of the family we will make it difficult for them to be blocked in case of death. Not so. They always crash. "Although we are as holders, if we have not contributed anything the account is not ours," explains Ángel Seisdedos. "The Treasury is going to ask you to give them the amount and, for the calculation of the tax, the highest balance in the last year is taken into account. It does not matter if you take money out little by little when someone is sick. You're going to have to pay for the higher amount," he recalls.

WHO WILL TAKE CARE OF MY MINOR CHILDREN IF I AM MISSING?

This issue will have come up in many informal conversations. Who would keep the children if the parents are missing? But it is not so common for it to be recorded on paper before a notary, and the two lawyers consulted strongly recommend it.

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Óscar Cano explains that, without giving more thought to the matter, the most important thing is to designate the tutor or tutors, obviously counting on them to accept this responsibility. "If the parents are missing at once and no guardian has been appointed, the judge will end up deciding and perhaps our children will end up with the people we would not have wanted."

This lawyer points out that the ideal option would be to appoint two guardians and even provide for a substitute. Because it can happen that these people either die before us or resign. If at least two guardians are established, we will also make sure that the decisions are going to be joint and that those two people have to agree. "You can even establish a person to serve as an arbitrator, to supervise the decisions of the guardians."

WHAT HAPPENS TO MY DIGITAL ASSETS?

Now that not all goods are tangible, we should think about what will happen, for example, with my cryptocurrencies in case I die. Ángel Seisdedos thought about this possibility when his father, also a lawyer, died without expecting it, and he had to attend to his clients.

"He was no longer there to tell me what things he had left untied, so I had to get into files, notes, etc., because he was always a very analogue person. And I thought, 'What if tomorrow I die? 'I have index funds, shares in companies in digital portals, cryptocurrencies, websites that generate money ...".

He saw a business opportunity and founded Leggado Digital, in which they serve as digital executors. "You report all those assets and the person you want that information to be given. Every month we ask for a faith of life in which you only have to enter a PIN code. If you do not put it, we try to contact you and if you do not take it we go to talk to your beneficiaries to ask for you. What we do is make it easier for users to transmit all that digital assets."

And what will happen to my social networks? "People are not aware but it is personal data. You are the one in the photo and they are your comments, above that data is held by the owner companies. All that can be erased. And you can take control." Although the heirs have to know the emails and passwords, of course.

"I'm already contemplating it in wills," says this lawyer. "Clauses like 'I want my last comment deleted' or a final farewell post to be published and deleted a few months later."

Related reading:

• Talk about death to live and die better. Montse Esquerda. Editorial Alienta.

  
  

• The loss of a loved one. Vicente Prieto. Editorial La Esfera de los Libros.

  
  

• I've seen things you wouldn't believe. Jesus Callejo. Editorial La Esfera de los Libros.

  
  

• Brain and transcendence. Ramón M. Nogués. Editorial Fragment.

  
  
• A Beginner's Guide to the End: Practical Advice for Living Life and Facing Death. BJ Miller and Shoshana Berger.

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