I must point out that this entry is written taking into account Catalan law, which regulates the issue we are dealing with in more complete terms than the Common Civil Code does.
Explaining what a legacy is and the difference with the heir is, among others, one of the great duties of Notaries. In every will and in every inheritance award it must be repeated, and although for us, as people very familiar with inheritance law, it is quite simple, we must recognize that these are not very intuitive concepts, as is often said in the field of computing.
THE DIFFERENCE BETWEEN THE HEIR AND THE LEGATEE
In very simple terms, we can say that a legatee is a person to whom a certain asset or set of assets is left by will. The content of the legacy can be very varied and thus, following the order established by the Civil Code of Catalonia, we can speak of legacies of a specific or generic thing, of sets of things, of movable property, real estate, money or financial assets, of things encumbered (for example with a mortgage), of food and periodic pensions, of a credit or a debt, of a real right, of shares and company participations and also a legacy would be the very frequent attribution of the universal usufruct of the inheritance.
The regulation of all these legacies is carried out to provide a solution to the specific problems that they may generate, but we can point out as a common characteristic of all of them, that the legatee by reason of the legacy is not liable for the debts of the inheritance, and his right is to receive the economic benefit that the legacy represents.
The heir, on the other hand, has the right to receive a net share of the inheritance, that is, what remains once the debts and legacies have been satisfied, and is liable (at least in Catalan law) for the debts of the inheritance in proportion to his share.
AN EXAMPLE
Let us give examples of testamentary clauses of legacy and heir, in the same will.
THIRD.- (LEGACY).- Bequeaths to JOAQUÍN the house located at Avenida Diagonal number 1 in Soria.
FOURTH.- (INSTITUTION OF HEIR).- Appoints PETER and PAUL as heirs, in equal parts.
As a result, JOAQUIN will have to receive, exclusively, the house at Avenida Diagonal number 1 in Soria and, for their part, PEDRO and PABLO will have to divide the assets left by the testator, with the exception of Joaquín's legacy, in the way they consider appropriate, each of them receiving assets worth half the value of the inheritance, and responding, in equal parts, to its debts.
THE DELIVERY OF THE LEGACIES
While heirs can, as a general rule, be awarded the assets without the intervention of any person, legatees must request that the heirs hand over the assets to them, unless they are authorized to take them themselves.
To deliver is to give something; it implies a transfer of possession, which is very well understood when we move in the field of movable property; thus, everyone understands that it is like delivering a pear or an apple. If expenses are incurred to deliver that pear or that apple, for example travel expenses, those expenses are the responsibility of the heir, and this is established in article 417-18.3 CCCat, that the expenses caused by the fulfillment of the legacy are borne by the taxed person. And in a similar sense, article 886 of the Civil Code states that “The expenses necessary for the delivery of the bequeathed property will be borne by the estate, but without prejudice to the legitimate share.”
But reality shows us that when we talk about legacies, the content of the same is not usually susceptible to delivery, in the sense we have spoken about before, that is, with transfer of possession. Let us think of a property, a current account, a pension... In these cases and in general in the majority of legacies, delivery is closely linked to the public deed, which constitutes a fictitious delivery, despite which we continue to speak of delivery, even within the law itself. In this sense, the Mortgage Regulations in its article 81, when regulating the registration of real estate in favor of the legatees tells us that they will be carried out, among other means, through a deed of delivery of legacy.
If the delivery is made through the deed and the delivery costs are the responsibility of the heir, the consequence that is generated is that the deed must be paid by the heir..
Common civil law, which is applied in almost all of Spain, except for those Communities that have their own law, has really become somewhat obsolete. It has many limitations that mean that the needs of many citizens are not sufficiently covered. As an example, I refer to this entrance from the blog notariAbierta.
On the contrary, the rights previously called foral rights are more adapted to the reality that they seek to regulate, and in this matter of the expenses of the legacies, the same cited article of the Civil Code of Catalonia tells us that The costs of formalization, if applicable, are borne by the legatee..
LEGACY EXPENSE TABLE
With this we would have, in the field of Catalan law, and in this matter of legacy expenses, the following scheme:
a) Expenses incurred for the fulfillment of the legacy (transport or delivery...) or making it available to the legatee are the responsibility of the heir or burdened person.
b) Expenses of the public deed in which the delivery of the legacy is formalized (in its entirety or proportional to its award) will be paid by the legatee.
c) Expenses prior to the deed of delivery and that are necessary for the fulfillment of the legacy (such as segregations, groupings, declarations of work or horizontal division among others) are the responsibility of the heir or burdened person.
d) Expenses for registration in the Property Registry of the bequeathed assets would be borne by the legatee, on the grounds that registration is voluntary.
e) Tax expenses (inheritance and municipal capital gains) would be borne by the legatee, as provided for in article 5 of the inheritance tax law.
Finally, as a warning, if the testator suspects that there may be a problem with the execution of his inheritance, there is nothing better than regulating these issues in the will.
In Lleida, April 5, 2016.
