The legacy of an aliquot part is a figure that is rarely used, even though it can be very useful, since it can constitute the legal remedy to many concerns expressed by people who come to make a will, as long as the legislation of Catalonia is applicable.
In my professional practice I have only seen it once in a will, which was not authorized by me. So, in order to spread this figure, I am writing these lines, hoping that they may be useful.
What is the aliquot legacy?
This is a testamentary provision in which a person is left a portion of the net hereditary assets, that is, a part of the inheritance, once the debts and charges have been deducted.
The legacy of an aliquot part is better understood if we differentiate it from the heir and the legatee, since it is somewhere between them.
The heir receives a part of the inheritance, with the obligation to pay the debts.
The legatee receives certain assets and rights, without any obligation to pay the debts of the inheritance.
The legatee of an aliquot part receives a portion of the inheritance after the debts have been paid.
The legacy of an aliquot part in common civil law.
Since the civil code does not deal specifically with the legacy of an aliquot part, it has been the task of doctrine and jurisprudence to specify its characteristics, which differentiate it from the heir proper and from the ordinary legatee.
And thus he can be described as a special heir, because:
On the one hand, he is a member of the hereditary community, which implies:
1.- That the right to intervene in the partition is recognized, not only to supervise the partition operations, but also for the purposes of determining and composing the lots.
2.- That he is granted legitimacy to request the division of the inheritance, since article 782 LEC (modified by the law of voluntary jurisdiction) expressly states that "(…) the legatee of an aliquot part may judicially claim the division of the inheritance, provided that this must not be carried out by a commissioner or accountant-partitioner appointed by the testator, by agreement between the co-heirs or by the judicial secretary or the notary."
3.- That until the liquidation of the inheritance takes place, he/she is considered a co-owner of the assets, and consequently, assets of the inheritance cannot be sold without his/her consent.
4.- You have the right to obtain a preventive annotation in the Property Registry. This is based on hereditary rights, as stated in articles 42.6 and 47 of the Property Law.
But on the other hand, it is not fully equal to the heir, which means, among other things:
1.- That he is not personally liable for hereditary debts. Although the existence of debts in the inheritance does affect him insofar as it reduces the amount of the legacy
2.- That he may demand that what corresponds to him in the assets of the inheritance be delivered to him, but he does not have the right to take possession himself, nor is he considered a possessor from the date of the death of the deceased.
3.- That it lacks the right of accretion, such that if one of the co-heirs is incapable of succeeding, or renounces the inheritance or legacy, the legatee of an aliquot part does not benefit from it.
However, if a normal legatee renounces his legacy, the legatee of an aliquot part is entitled to a proportional part; here, in fact, it is not a question of an increase in his portion, but simply of including among the assets to be divided, the one that was the object of the ordinary legacy.
With these characteristics we can ask ourselves When am I interested in designating a person as a legatee of an aliquot part instead of an heir?
There are really few reasons that I can find, since the treatment of the legatee's aliquot part has always been carried out from a very theoretical point of view.
Personally, the only justification I can find is that through this figure, a person is directly granted the benefit of inventory, while an ordinary heir would have to request it, in order not to be obliged to answer for the assets of the inheritance.
The legacy of aliquot part in Catalan civil law.
The first thing we have to point out is that it has its own regulation in thearticle 427-36 CCCat that tells us:
1. The legacy of an aliquot part has the character of a legacy of obligatory effectiveness and grants the legatee the right to be awarded assets from the net hereditary assets for the value corresponding to the aliquot part set by the deceased, unless the heir chooses to pay it in money, even if there is none in the inheritance.
2. The legatee of an aliquot part is not liable as a debtor for the hereditary obligations and burdens.
3. Notwithstanding the provisions of paragraph 2, if after receiving the legacy, unknown debts appear, the legatee must reimburse the heir the difference between the value originally set in the aliquot part and its real value, given the amount of the hereditary assets. However, if new assets or rights are discovered or hereditary credits considered doubtful or eventual are collected, the heir must pay the legatee the part corresponding to the value of these assets, rights or credits.
From this precept, the first idea that can be extracted is that the legatee of an aliquot part in Catalan law, is not part of the hereditary community, which implies a sensu contrario of what we have pointed out when dealing with the Civil Code:
1.- That he has no right to intervene in the partition, although he may demand the correct valuation of the assets and rights of the inheritance, since the value of what he may receive depends on this.
2.- That he lacks the legitimacy to request the division of the inheritance, although he may demand payment of his legacy from the heirs or other obligated persons.
3.- That he is not a co-owner of the asset, and that consequently, the heirs may transfer assets from the inheritance without his consent.
The right of the legatee to an aliquot part is specified in that he is the holder of a credit against the heir, which the latter may pay in assets of the inheritance or in money.
The problems of the figure of the legatee of an aliquot part
I would mention two, as the practical problems that this figure poses:
a.- The first of them is the lack of agreement on the assets that the legatee should receive, which in my opinion, I believe that can be integrated with the rule established by the Civil Code of Catalonia in the area of legitimate inheritance, in its article 451-12 in the sense that if the legatee of an aliquot part does not agree with those that are intended to be awarded to him, he could appeal to the competent judicial authority, which must decide fairly and through the voluntary jurisdiction procedure.
b.- The second of them is the one referring to the guarantees of payment of the legacy, because if as we have said, the heirs can alienate the assets of the inheritance without the consent of the legitimate heir, the latter could be a victim of the heirs.
In my opinion, this problem can be avoided through the registry guarantees, which are granted to the legatee of kind or quantity, which is the case of the aliquot part in Catalan law. Although I note that this is a dubious issue and on which much more authoritative voices have spoken.
In this way and in accordance with article 48 LH, the legatee of kind or amount may request the preventive annotation of its value, within 180 days following the death of the testator, on any real estate assets of the inheritance, sufficient to cover it, provided that they have not been specifically bequeathed to others.
And during this period the heir may not register the assets of the inheritance in his favor, unless there is consent from the legatees in accordance with the terms of Article 50 LH.
And once this annotation has been obtained, it acts as an embargo, in that the legatee who obtains a preventive annotation will be preferred to the creditors of the heir who has accepted the inheritance without benefit of inventory and to anyone else who, after said annotation, acquires any right over the annotated assets.
UTILITY IN CATALAN LAW.
Correctly used, the legacy of an aliquot part becomes a very suitable instrument for certain needs, very frequent among the concerns of testators, when they do not want to deprive a child of the inheritance, but simultaneously have doubts that it may block the other children from the correct process of allocation of the hereditary assets.
Furthermore, the brief legal regulation can be incorporated into the will itself, providing for payment deadlines, preferences for certain assets and/or penalties for being forced to receive only one's inheritance.
Lleida, March 14, 2017
