30% of those over 60 years of age say that they have not yet made a will, a percentage that rises to 46% among those between 60 and 64 years of age. The reasons include, in this order, lack of time or carelessness (30%), “I don't like to think about this topic” (13.9%), “I have nothing to leave behind” (13.9) and “it is worthless, it is not necessary” (13,4). This is reflected in a study led by the professor of Sociology at the University of Malaga Luis Ayuso. Research that also indicates that widowers and married people have made more wills than single and divorced people.
Should a will be made or not? Is it possible to distribute an inheritance without having arguments or family breakups? We spoke about this with Victoria López Barrio, an expert lawyer in successions and inheritances at the Winkels Abogados firm and member of the Madrid Bar Association.
Do I have to make a will?
It is advisable to always make a will, because it speeds up the paperwork once a person has died. And it is especially important to do so if you are remarried, have unusual children from a previous marriage, have a child with some type of disability whom you want to protect, or want to benefit your spouse. In the common civil code, the widowed spouse only has the right to a very small part of the inheritance, if he inherits together with the children: to the usufruct of one third. If you want to improve this situation, it can only be done through a will.
Does the civil code not protect the couple?
In the civil code, preference is given to “blood.” If you don't have children, your parents take precedence. The widowed spouse's legitimacy is scarce. The inheritance is divided into thirds: the third of the legitimate inheritance, for children and descendants; the third of improvement, to improve children and descendants; and the third freely available, for whoever you want. If you do not make a will and you have children, the spouse only has the usufructuary legal fee, which is the usufruct of the third of the improvement, and nothing more. With a will you can leave him the universal usufruct of the entire inheritance, which is the right of use for life or the free disposal third.
But, even if there is a will, problems always arise. Why is this happening?
Because there is a family problem. Furthermore, in a large part of the wills it is established who the universal heirs are, but specific assets are not awarded; Houses or checking accounts are not usually distributed, for example. If children don't get along, problems can arise. If one says that his father or mother donated a sum of money or an object to him during his lifetime and there is no document to prove it, there may be conflicts.
And how can these problems be avoided?
Appointing a split accountant. If you think that there may be problems when distributing your inheritance and you want to avoid conflicts, appoint a dividing accountant. You can also appoint an executor, although they have fewer powers.
How would an accountant or executor help me? Let's say I have just been the beneficiary of an inheritance, and I have siblings. What does the accountant or executor do?
A dividing accountant is a person designated by the testator in his will and who has the power to divide and allocate the inheritance among the heirs, make equitable lots, determining who goes to a house, an account... He has a series of powers, among them, If the testator is responsible for selling the assets, he must always act impartially and respecting the legitimate right. An executor is the one who represents the estate and ensures that the will of the testator is carried out. The best option is to appoint a splitting accountant executor and give all these powers to a single person.
Where do I look for a split accountant?
Any person of legal age and with full capacity to act can be appointed as a starting accountant. There are registered accountants, or it can also be a trusted lawyer or a notary. It should always be someone impartial and in no case one of the beneficiaries. It is a free charge, unless the testator determines otherwise. As soon as the testator dies, and the separating accountant is aware of his designation – because he often does not know it in advance – he contacts the heirs and is normally given a period of one year to resolve the inheritance. If there is no agreement between the heirs, the dividing accountant has the power to go to a notary and carry out the deed of division of the inheritance without intervention of the heirs. If the heirs do not agree because they consider that there are irregularities, they can judicially challenge this partition. Normally, they end up accepting it to avoid litigation.
What if there is no designated accountant in the will?
For some time now, the law has also allowed the possibility for heirs to seek this figure on their own initiative to help them carry out the partition, it is called a dative partition counter. It can only be requested, of course, if requested by the heirs who account for at least 50% of the inheritance. In this way, these issues are resolved much faster. If not, you must file the corresponding claim for judicial division of inheritance, which is a long process: it involves an inventory of assets, the appointment of an accountant, experts, lawyers, solicitors... all of this takes years and a lot of money.
How many years can it take to resolve an inheritance?
I have had cases of testators who died in 1930 and the inheritance is undistributed. The right to partition the inheritance is one of the few rights that does not prescribe. I remember the case of a lady who died without children or descendants. Her heirs were her nephews and brothers and it was impossible to reach an agreement. During the process, some of the heirs themselves died, there were lawsuits started that were abandoned because it seemed that they reached an agreement, and in the end there was none. The issue has been passed from generation to generation, and the current heirs are unaware of the conflicts that their grandparents had and even the exact content to be distributed: there were abandoned accounts outside of Spain, an entire estate with different undivided floors... All this generated expenses and time was passing. But if there is a normal relationship between the heirs in less than 6 months, an inheritance can be resolved.
For what other reasons can an inheritance become complicated?
The reasons are infinite. In one case, a testator died at the age of 90 and she had several children over 50. She had a significant estate, several properties, companies. And they couldn't agree because everyone wanted a dresser in the living room or an office table. Furthermore, one told the other that the father had given him 1,000 euros in the past and the other had not. An inheritance of millions of euros can be delayed by these types of discussions. In another case, the reason for the conflict was a set of dishes that the deceased had theoretically given to one of her children, without there being official evidence of the donation.
He says that sometimes the partners of the heirs contribute to complicate the situation even more...
It is a part of the law in which family relationships count a lot. When one of the members of a couple dies, family quarrels that had not come to light can begin to emerge. When the other dies, that is when the battle ax appears. Sometimes agreements are not reached between the couples of the heirs, they begin to discuss whether one brother has stayed more than the other, or deserved something else.
I have a will, but I want to change it. Is it necessary to go to the notary every time? Or can I do it at home?
When you make a new will, the previous one is automatically revoked. If you do not want to go to the notary, you can make what is called a holographic will, although it is not highly recommended. It must be written in your own handwriting, completely by hand, and signed with your name and date. It cannot have any deletions or amendments. You can leave it in an envelope, although it will have to be validated through a judicial process, in which witnesses will have to recognize the handwriting and signature of the testator and, if this is not possible, a calligrapher expert will have to intervene to determine that the handwriting and signature signature corresponds to the testator. I do not recommend making this type of will, it is best to go to a notary and make a new will.
