I cannot deny that it is a question that has a difficult answer. The reason is that the goodness of a notarial professional action and in general in the legal field, is not verified immediately, but rather after a while when what has been done is confronted with reality.
The wording of these notes is determined because in recent days I have witnessed different actions by other professionals, that the passage of time has revealed incorrect advice, if there was one. I am going to refer to two cases:
The first refers to the fact that on the occasion of a sale, a person who goes to the Notary, begins to make a series of inquiries about succession issues. In the conversation we found out that the man had a hereditary conflict with his sister, due to the death of his father and he feared that with the death of his mother, an elderly person he cared for, everything could become more complicated. This gentleman had a mistaken idea, but very present in society, that the son who takes care of his parents in the last years of his life has a greater right to inheritance than the others. And in his case, he took care of his elderly mother, and his great concern is that his sister, upon her death, would have the right to the inheritance, at least as far as the strict legitimate one is concerned. This happened in 2010, at which time he went to a lawyer who took him to a certain notary, where the advice they gave him was to make a simulated deed of sale, and to put his name in this way, the undivided half of a house that belonged to his mother (his only asset). I have to say that the mother agreed with the son's approach.
I say, is advising to make a simulated sale a good professional performance? Regardless of the basic reason or not that this gentleman may have to consider himself with a preferential right to his mother's inheritance, the truth is that a simulated sale is an error, as we expressed, for the reasons that I am going to enumerate. :
1. It is easily verifiable that the sale was simulated, with the consequences that may derive from it, which could be its cancellation.
2.- Significant costs had to be assumed, due to transfer tax, municipal capital gains, income tax, which together totaled more than 25,000 euros, well above the possible legitimate claim of the sister.
3.- The consideration of this gentleman as a businessman made it very dangerous to put assets in his name, which could be subject to seizure.
4 And finally, because there are other possibilities in the law, correct, non-fraudulent and much cheaper, to meet your concerns.
A few days ago this man came back to my office, saying that he has a problem with certain creditors, because of a company that he recently bought, and that he is afraid that they could repossess that apartment that his mother put in his name. As there was some confidence, we repeated to him, do you remember that we told you that the operation they performed on you a few years ago was a mistake? To which he replied, indeed.
The second case is about a family, made up of the parents, already very old, about 90 years old each, and the children who, as one can imagine, are already combing gray hair, and are close to being grandparents. Their assets consisted of their habitual residence in Lleida, and two apartments, one on the beach and the other in the mountains, in addition to certain cash savings resulting from their effort and work and which allow them a peaceful old age. The fact is that they decided, in 2012, to make a partial and previous distribution of their parents' inheritance, so that one son would stay with the apartment on the mountain and another with the one on the beach, which is documented by through two donations, in which the parents reserve the usufruct of both houses until their death. After a few months of making these donations, and as was very predictable, the father dies, at which time they come to my office to formalize all the procedures for his succession.
I ask the same question as in the previous case. Is advising making donations in this case a good professional performance? In my opinion, no, for the reasons that I am going to enumerate:
1. There was no real interest to put the assets in the name of the children.
2.- Significant costs had to be assumed, due to donation tax, municipal capital gains, income tax, which together totaled more than 30,000 euros, and which compromise the peace of mind of the widow.
3.- The foreseeable near death of the parents allowed us to presume that there would be no change in the tax legislation.
4 And finally, because there are other possibilities in the law, correct and much cheaper, to meet your concerns.
I go back to what was said at the beginning, how do you choose a good notary? Well, I am going to give you some guidelines: knowing who you are as a person, that it is not imposed by a bank or real estate developer, that you listen, that you value, that you say things as you think, that you be sincere, that your independence and training are palpable, that project the advice to the current situation and to the future, which allows you to decide freely and does not impose the solution on you…. All this can be summed up in three words: you must choose who has SCIENCE, PATIENCE and EXPERIENCE.
