JAIME'S INHERITANCE. A CALL TO THE POLITICIANS IN THE ELECTION CAMPAIGN.

JAIME'S INHERITANCE. A CALL TO THE POLITICIANS IN THE ELECTION CAMPAIGN.

It is a widespread saying, introduced into people's thinking almost as an unquestionable truth, that inheritances are very complicated matters.

I am not going to deny that there are some inheritances that present more difficulties than others, but most of the time, those who are complicated are the people, and not the legal aspect of a succession itself.

In any case, as I have pointed out on other occasions, the Civil Code has a regulation of succession, which favors complication, and despite the fact that reforms appear from time to time, which are presented as the panacea of remedies for hereditary matters. Those of us who are in the forefront of the application of private law, look at them with poker face, anticipating its failure, or poor application.

A global reform of inheritance law is necessary, and touching the base of it, which are legitimate ones, designed for an essentially rural society, totally different from the one we live in, in which the authentic patrimony that is left to the children is the training and the means to carve out their own "heritage".

Those of us who have had the good fortune to work with the foral legislation know exactly what we are talking about.

Legitimate collective and/or credit rights, relaxation of the causes of disinheritance, joint or joint wills, succession agreements, early resignation of inheritance, ex lege attribution of the benefit of inventory, ex lege revocation of testamentary dispositions due to matrimonial crises, consideration of silence as a cause for renouncing the inheritance, among many other issues, should be instruments available to citizens to articulate their succession.

And a global approach to inheritance taxation is also necessary, so that absolutely unfair events do not occur, as in the case of Jaime's inheritance, which gives the title to this entry.

A less litigious society is a more prosperous society, it allows a better allocation of resources, which in the long run benefits everyone.

I would like a question of this type to be raised in the programs of the political parties, and above all to know how each of them would position themselves. We are in the electoral campaign and I think it is a debate that cannot be postponed, although I am not very optimistic that it will take place.

In the following lines I am going to expose some cases, which I have found especially significant, and which derive from the experience that results from the day-to-day life of a notary's office.

WILL YES OR NO?

The fact that there is a will facilitates the succession, in the sense that it allows the introduction of provisions for the execution of the inheritance.

However, with such extensive legitimates as the ones we have, it is difficult to respond to the real concerns that people express to us in the day-to-day life of notaries, because there are many limits to the freedom of will.

In recent days, after a couple had made a will, they raised the situation in which the woman's parents found themselves, which from what I will explain below, surely more than one reader finds it very close.

The fact is that she was the one who took care of her parents, paying for a residence out of her own resources, while the rest of the siblings could be considered as "missing in action", in what affects their family commitments.

To a certain extent, she manifested her right to be reimbursed for expenses with the allegedly meager inheritance from her parents.

After expressing the limitations we had, I advised her, among other things, that her parents should make a will, knowing in advance that it would not solve all the problems. He thanked me for his words, and told me that they couldn't do it with me, since his parents were from Aragon.  Bingo I answered!!!, and forget almost everything I've told you.

In Aragon the legitimate is collective. This means that, despite the legitimacy of all the descendants, who are entitled to half of the inheritance, the testator can distribute that half equally or unequally, attributing more to some than others or attributing it to only one of them. . Thus, the testator can benefit one child against another, or their grandchildren or great-grandchildren and not the children who are the direct descendants of the closest degree. 

AN HEIR DOES NOT STATE WHETHER HE ACCEPTS OR WAIVES THE INHERITANCE

The situation that I will present below, as I have said before, is sure to be very close to more than one reader.

After the death of the parents, the brothers intend to distribute the inheritance, but find that one of them always puts up problems, to sign the deed, giving the circumstance that he enjoys some of the assets of the inheritance.

At the notary we have to say that the partition requires the unanimity of all the heirs and that without the help of that brother, we can do little, except require him to accept or repudiate the inheritance, through the interpellatio in iure.

The "interpellatio in iure" It aims to solve the problem that arises when an heir does not express himself about whether or not he really wants the inheritance, to which he has been called by will or by law. To avoid the damages that may result for "others", the silence of the heir, through the "interpellatio in iure” this silence can be considered as an acceptance or repudiation of the inheritance.

Despite the fact that this figure is quite facilitated, as a consequence of the reform of article 1005 CC, verified through  the Voluntary Jurisdiction Law, does not really solve problems, as you can see through the assumptions that I will point out.

The aforementioned article 1005 CC says “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 also indicate that if he does not express his will within said period, the inheritance will be understood to be accepted purely and simply.

The aforementioned reform changes the previous regime, in the sense that the competence is notarial, and not judicial as before, and it is always kinder to go to the Notary than to the Judge. But really, it is not very effective, if we assess the substance of the matter, since silence is considered as acceptance of inheritance.

In all the requirements that I have made, based on this article, there has never been a response. The drafting of some proceedings by fellow notaries, recount cases of authentic entrenchment of the heir to the visit of the notary. What happens is that if the call to the inheritance does not answer, and you really do not have any incentive to answer, you will be considered as an heir, but you will be able to continue lengthening the succession process, since your participation in the inheritance partition will continue to be necessary.

Lto The situation is different in Catalonia, where article 461-12 of the Catalonia Civil Code says that people interested in the succession, (...) can request the notary, once a month has elapsed from the denunciation, to personally require the called so that, within a period of two months, he can state whether he accepts or repudiates the inheritance, with an express warning that if he does not accept it, it is understood that he repudiates it.

With this regulation, there is an incentive for the person called to answer, because if they do not, they all lose their right to inheritance. During my long and profitable stay in Catalonia, all the requests I made based on this article were in the opposite direction to those made from Madrid. All the heirs appeared at the notary to express their acceptance of the inheritance, and on many occasions stating the reasons for their actions.

AN HEIR DOES NOT WANT TO SIGN THE DEED OF PARTITION OF INHERITANCE

Following the tract of what is a hereditary process, once the inheritance is accepted, it must be divided. But, the rebellious heir, who had to be required to state whether he accepted or repudiated the inheritance, still does not want to collaborate, forces us to procedures, until recently exclusively judicial, and since 2015, in some cases also notarial for attribute assets to each of the heirs.

It is true that the appointment of accountants-partitioners, executors, or the figure not so recent, but unfortunately very little used, of the succession trust of article 831 CC, solves something. But I have no doubt that everything would be much simpler if a person had the freedom to leave their inheritance as they wish.

THE WAIVER OF INHERITANCE

Why can't you give up your inheritance while you're alive? When we talk about giving up, the subconscious betrays us and it seems that we are talking about not receiving anything in return. But being able to receive the inheritance from your parents while you're alive and not argue with your siblings later should be totally normal.

THE ACCEPTANCE FOR THE BENEFIT OF INVENTORY OR WITH THE RIGHT TO DELIBERATE

Accepting the inheritance, liquidating any debts left by the deceased with your assets, but not responding for them with your own assets, should be a general rule, which unfortunately does not exist.

THE PROTECTION OF THE SPOUSE AND MINOR CHILDREN. 

Why does the widowed spouse, in the event of having to sell the assets that constitute the family patrimony, and which to some extent may belong to minor children, need a judicial authorization?

Some alternative, in addition to the few that exist in article 166.3 CC, should be allowed. But what does not seem admissible is the existence of legal distrust towards the parent who is widowed and cares for their children.

For more information on this matter, you can consult here.

INHERITANCE TAXATION

The problems of inheritance taxation do not end, with regulations such as those of the Community of Madrid, which establish an almost exemption from them in the case of inheritances between parents, spouses and children. There are other problems that are not sufficiently resolved, or at least in my opinion it is done in a remarkably unfair way.

These are certain inheritances between collaterals or strangers that should have a more favorable treatment. I will give two examples.

One is the case of the inheritance of Jaime, who titles this entry, who names his "nephew" as heir, and whose inheritance constituted almost exclusively by a flat in Madrid, has given rise to a tax quota of 377,421.22 euros, that is, a tax rate, approximately 50% of the value of the inheritance. The problem is that the consideration of a nephew did not exist for tax purposes, despite being his closest relative. The law has not taken into account that he had been his guardian, and person who has taken care of him, for many years, having to deal with a very complicated old age, and at enormous personal cost.

Another assumption, which should be taken into consideration, are inheritances between siblings, who provide mutual assistance, and whose assets are so confused that it is not possible to specify to whom each thing belongs, and who find themselves with very high tax quotas, for inherit what is yours.

In Madrid on March 17, 2019.

 

 

 

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