In the previous entries of this blog we have been referring to the applications of the law of voluntary jurisdiction in commercial matters, people, family, right of obligations and real rights. With this entry, which we are going to dedicate to inheritance law, we finish the general exposition of the voluntary jurisdiction law, and in the following ones we will make particular analyzes of the most relevant matters, which can be processed at the Notary.
As an approximation to the subject of successions, we will say that the articles of the law of voluntary jurisdiction regulate few succession law files, strictly speaking, only those in which there is a shared competence between Notaries and Court Clerks. Most of the new files that have been attributed to Notaries, derive from the modifications made in the Civil Code and in the Law of Notaries, the latter developing the requirements of notarial intervention of those matters previously regulated in the substantive legislation, which which means that some of them will not be applicable in Catalonia, due either to the fact that there are no similar institutions in book IV of the Civil Code of Catalonia to those regulated by the Spanish Civil Code, or because the legislation of Catalonia itself regulates the procedural process. We move on to the explanation of the different files:
1.- DECLARATIONS OF INTESTATES HEIRS
A) Regulation
thoroughly.- Own civil legislation corresponding to the civil neighborhood of the deceased or in the case of EU foreigners who have their habitual residence in Spain (European Inheritance Regulation).
b´) Procedure. Article 55 and 56 Law of Notaries
B) Competition. Exclusive Notarial. It will be carried out before a notary competent to act in the place where the deceased had his last domicile or habitual residence, or where the majority of his assets were, or in the place where he had died, provided they were in Spain, at the option From applicant. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent. Judicial jurisdiction is limited to the ordinary declaratory procedure.
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- Any person with a legitimate interest in the opinion of the Notary. Normally, they are those who consider themselves entitled to intestate succession to a deceased person: descendants, ascendants, spouse or person united by an analogous relationship of affectivity to the conjugal one, or their collateral relatives. The degree of kinship depends on the applicable law. In Catalonia and in common law, collaterals up to the 4th degree. In Aragon you can reach the 6th grade. If there are no collaterals, the competence, in accordance with article 20 bis of Law 33/2003, of November 3, on Public Administration Assets, belongs to the State and the file will be processed by the Delegation of Economy and Finance corresponding to the place of last Known address of the deceased in Spanish territory. If you have never had a domicile in Spain, the one corresponding to the place where most of your assets are located will be competent.
2.- NOTICE AND PROTOCOLIZATION OF HOLOGRAPHIC WILLS.
wills holographs are those drawn up in handwriting by the testator. Due to the fact that there is no control in its granting, there is a procedure, called adveration, which aims to prove the authenticity of the will, once its author has died.
A) Regulation.
thoroughly.- Articles 689 to 693 CC. In Catalonia, article 421-18 CCCat governs, which already allows notarial adveration since it refers to the fact that it will be adverated by the judge or competent official.
b´) Procedure. Article 61 to 63 Law of Notaries
B.) Competence. It is the exclusive competence of the notary. It will be carried out before a notary competent to act in the place where the deceased had his last domicile or habitual residence, or where the majority of his assets are, regardless of their nature in accordance with the applicable law, or in the place where who had died, as long as they were in Spain, at the applicant's choice. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent (article 61.1 LN).
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- The person who has a holographic will in his possession must present it before a competent Notary Public within ten days following the day on which he becomes aware of the death of the testator. (Article 690 CC) If after ten days from the death of the grantor, the will is not presented in accordance with the provisions of the Civil Code, any interested party may request the Notary to require the person in possession of a holographic will to present it before him. (article 61.2 LN) Maximum term of presentation 5 years.
In Catalonia they expire after four 4 years (article 421-19 CCCat)
3.- NOTICE AND PROTOCOLIZATION OF CLOSED WILLS
The closed wills are those written, by the testator or by another person at his request, and are placed in a closed envelope, which is sealed and identified by the Notary. As in holographs, their authenticity must be proven.
A) Regulation
thoroughly.- Articles 712 to 714 CC. In Catalonia articles 421-14 to 421-16 CCCat. There are two fundamental differences, the first which is that the Civil Code the envelope containing the closed will is delivered by the Notary to the testator, who may keep it himself or entrust its custody to a person he trusts, or deposit it in the power of the authorizing Notary to keep it in his file ; while in Catalonia the closed will remains in the possession of the Notary. The second is that the will can be drawn up by other technical means, in addition to the handwriting, and even in digital support and with an electronic signature.
b´) Procedure. Article 57 to 60 NL.
B) Competition. It is the exclusive competence of the notary. The same jurisdiction criteria as indicated for holographic wills.
C) Application.- The intervention of a non-attorney lawyer is not necessary
D) Initiative.- Whoever has it in his power. If after ten days from the death of the grantor, the will is not presented in accordance with the provisions of the Civil Code, any interested party may request the Notary to require the person in possession of a closed will to present it before him. In Catalonia, since the will is closed in the possession of the Notary Public, the procedure is easier, since once the testator's death has been accredited and duly requested, if the will is considered authentic, it will be recorded and its notarization will proceed.
4.- NOTICE AND PROTOCOLIZATION OF ORAL OR WRITTEN WILLS WITHOUT THE INTERVENTION OF A NOTARY.
Wills are made in danger of death, which must be before five witnesses, or in the event of an epidemic, which must be made before three witnesses over the age of sixteen, in war action, or in danger of shipwreck, which must be made before two witnesses. The first two do not need to be written. It is intended to prove the veracity of the last will, introducing the Law of Notaries that take into account the data recorded in memory or durable magnetic or digital support.
A) Regulation
thoroughly.- Articles 703, 704 and 718 CC.
b´) Procedure. Articles 64 and 65 NL.
B) Competition. It is the exclusive competence of the notary. The same jurisdiction criteria as indicated for holographic and closed wills.
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- Anyone interested
5.- APPROVAL OF THE PARTITION IN CASE OF PAYMENT IN CASH OF THE LEGITIMATE.
A) Regulation
thoroughly.- Article 841 CC: "The testator, or the accountant-partitioner expressly authorized by him, may award all the hereditary assets or part of them to any of the children or descendants, ordering that the hereditary portion of the other legitimaries be paid in cash. The power to pay in cash in the same case of the previous paragraph will also correspond to the dative splitter counter referred to in article 1057 of the Civil Code. Article 843 CC: “Unless expressly confirmed by all the children or descendants, the division referred to in the two previous articles will require approval by the Court Clerk or Notary.
b´) Procedure. Article 68 LN, in case it is processed through a notary and Article 92 LJV in case it is processed before a court clerk.
B) Competition. Notary or Court Clerk.
The Notary who resides in the place where the deceased had his last domicile or habitual residence, or where the majority of his assets are located, regardless of their nature in accordance with the applicable law, or in the place in which they died, provided they were in Spain, at the applicant's choice. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent.
The court clerk of the Court of First Instance of the last domicile or habitual residence of the deceased, or where most of his assets are located, regardless of its nature in accordance with the applicable law, or the place where he died will be competent. , as long as they were in Spain, at the applicant's choice. In the absence of all of them, the Court of First Instance of the place of residence of the applicant will be competent.
C) Application.- The intervention of a non-attorney lawyer is not necessary, except in the case that it is processed before the court clerk and that the hereditary asset is of an amount greater than 6000 euros.
D) Initiative.- Partition counter that has carried out the partition
APPLICATION TO CATALONIA This is an assumption not applicable to Catalonia due to the different configuration of the legitimate ones.
6.- RESIGNATION AND EXTENSION OF THE OFFICE OF EXECUTOR.
A) Regulation
a´) Merits.- Article 899 CC «The executor who accepts the position is constituted in the obligation to perform it; but he may waive it alleging just cause at the discretion of the Court Clerk or the Notary.»
Article 904 CC "The executor, to whom the testator has not set a term, must fulfill his order within one year from its acceptance, or from the end of the disputes that are promoted on the validity or nullity of the will or any of its provisions.
Article 905 CC: «If the testator wishes to extend the legal term, he must expressly indicate the extension. If he had not indicated it, the term will be understood to have been extended by one year. If, after this extension, the will of the testator had not yet been fulfilled, the Court Clerk or the Notary Public may grant another for as long as necessary, given the circumstances of the case.»
b´) Procedure. Article 68 LN, in case of processing through a notary and Article 91 LJV in case of processing before a court clerk
B) Competition. Notary or Court Clerk. The same as indicated for the approval of the partition in case of payment in cash of the legitimate ones.
C) Application.- The intervention of a Lawyer or Attorney will not be mandatory when the amount of the hereditary assets is less than 6,000 euros
D) Initiative.- The executor himself
APPLICATION TO CATALONIA The regulation of the CC and the LN cannot imply a change in the matter regulated, and in this case it is regulated in article 429-4 CCCat.
7.- REQUEST TO THE HEIR TO ACCEPT OR REPUDIATE
A) Regulation
thoroughly.- Article 1005 CC «Any interested party who proves his interest in the heir accepting or repudiating the inheritance may go to the Notary so that he notifies the caller that he has a period of thirty calendar days to accept purely or simply, or for the benefit of inventory, or to repudiate the inheritance. The notary will indicate, in addition, that if he does not express his will within said period, the inheritance will be understood to be accepted purely and simply.»
b´) Procedure. General rules of notarial action. The Notary must be competent in the place where the heir must be required.
B.) Competence. Notary exclusive.
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- Any interested party who proves his interest in the heir accepting or repudiating the inheritance.
APPLICATION TO CATALONIA The regulation of CC and LN cannot imply a change in the matter regulated, and in this case it is regulated in article 461-12 CCCat. For more information on this subject you can click here
8.-REPUDIATION OF THE INHERITANCE.
A) Regulation
a´) Merits.- Article 1008 CC “«The repudiation of the inheritance must be made before a Notary Public in a public instrument.»
b´) Procedure. Exclusively deed of resignation
B) Competition. Notary exclusive. Any notary.
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- The renouncer
APPLICATION TO CATALONIA. Article 461-6 CCCat. Allows notarial repudiation
9.- ACCEPTANCE FOR THE BENEFIT OF INVENTORY OR RIGHT TO DELIBERATE
A) Regulation
a´) Merits.- Article 1011 «The declaration of making use of the inventory benefit must be made before Notar Article 1014 CC: «The heir who has in his possession the inheritance or part of it and wants to use the benefit of inventory or the right to deliberate, must notify it before a Notary and request within thirty days from the day in which he knows to be such an heir. the formation of notarial inventory with summons to the creditors and legatees so that they come to witness it if it suits them.»
b´) Procedure. Articles 67 and 68 NL.
B) Competition. The notary residing in the place where the deceased would have had his last domicile or habitual residence, or where most of their assets are located, regardless of their nature in accordance with the applicable law, or in the place where they died, provided they were in Spain, at the applicant's choice. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent.
C) Application.- The intervention of a non-attorney lawyer is not necessary.
D) Initiative.- The heir who has in his possession the inheritance or part of it and wants to use the benefit of inventory or the right to deliberate.
In Catalonia there is no right to deliberate, but there is the right to separate assets. The acceptance for the benefit of inventory is regulated in article 461-14 CCCat.
10.- APPOINTMENT OF DATIVE PARTITION ACCOUNTANT
A) Regulation
a´) Merits.- Article 1057 CC in fine: “The partition carried out in this way will require the approval of the Court Clerk or the Notary, unless expressly confirmed by all the heirs and legatees.
b´) Procedure. Article 66 LN, in case of being processed by a notary and Article 92 LJV in case of being processed before a court clerk.
B) Competition. The Notary who resides in the place where the deceased had his last domicile or habitual residence, or where the majority of his assets are located, regardless of their nature in accordance with the applicable law, or in the place in which they died, provided they were in Spain, at the applicant's choice. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent. The court clerk of the Court of First Instance of the last domicile or habitual residence of the deceased, or where most of his assets are located, regardless of its nature in accordance with the applicable law, or the place where he died will be competent. , as long as they were in Spain, at the applicant's choice. In the absence of all of them, the Court of First Instance of the place of residence of the applicant will be competent.
C) Application.- The intervention of a non-attorney lawyer is not necessary, except in the case that it is processed before the court clerk and that the hereditary asset is of an amount greater than 6000 euros.
D) Initiative.- At the request of heirs and legatees representing at least 50 percent of the hereditary assets
11– APPROVAL OF THE PARTITION APPROVED BY THE DATIVE PARTITION ACCOUNTANT
A) REGULATION
a´) Merits.- Article 841 CC: "The testator, or the accountant-partitioner expressly authorized by him, may award all the hereditary assets or part of them to one of the children or descendants, ordering that the hereditary portion of the other legitimaries be paid in cash. The power to pay in cash in the same case of the previous paragraph will also correspond to the dative splitter counter referred to in article 1057 of the Civil Code. Article 843 CC: "Unless expressly confirmed by all the children or descendants, the partition referred to in the two previous articles will require approval by the Court Clerk or Notary.
b´) Procedure. Article 66 LN, in case of processing through a notary and Article 92 LJV in case of processing before a court clerk
B) Competition. Notary or Court Clerk.
The Notary who resides in the place where the deceased had his last domicile or habitual residence, or where the majority of his assets are located, regardless of their nature in accordance with the applicable law, or in the place in which they died, provided they were in Spain, at the applicant's choice. You can also choose a Notary from a district adjacent to the above. In the absence of all of them, the Notary of the place of domicile of the applicant will be competent.
The court clerk of the Court of First Instance of the last domicile or habitual residence of the deceased, or where most of his assets are located, regardless of its nature in accordance with the applicable law, or the place where he died will be competent. , as long as they were in Spain, at the applicant's choice. In the absence of all of them, the Court of First Instance of the place of residence of the applicant will be competent.
C) Application.- The intervention of a non-attorney lawyer is not necessary, except in the case that it is processed before the court clerk and that the hereditary asset is of an amount greater than 6000 euros.
D) Initiative.- Partition counter that has carried out the partition.
12.- JUDICIAL APPROVAL OF THE ACCEPTANCE OR REPUDIATION OF INHERITANCE.
thoroughly.- Articles 166, 271 CC. Article 222-43 and 236-27 CCCat
b´) Procedure. Article 93 LJV.
B) Competition. Judge of 1st instance
C) Application.- The intervention of a non-attorney lawyer is not necessary, except in the case that it is processed before the court clerk and that the hereditary asset is of an amount greater than 6000 euros.
D) Initiative.- parents, guardians, judicial defenders and creditors of the heir who has resigned to their detriment.
