Inheritance and probate lawyers in Villanueva de la Cañada

Most estates are settled without a dispute: the heirs accept, the inheritance tax is paid and the properties are registered. That does not need a firm like ours. We come in on the other kind of estate. The one where the father made gifts during his lifetime to some children and not to others. Where there is a family company among the assets. Where a second spouse holds a life interest and nobody knows how to put a figure on it. Where one heir has disappeared and everything is frozen. Or where there is a deed of partition on the table which, read closely, does not add up. In those estates the difference between doing the arithmetic well or badly is measured in hundreds of thousands of euros. In one of our cases the court ordered the court-appointed accountant to redo the entire deed of partition in an estate with a net value of more than €3,600,000: you can read how it went.

How a Spanish estate differs from an English or American one

Two things surprise almost every foreign client, and both are worth knowing before you make any decision.

The first is that you cannot leave your estate to whomever you choose. Spanish common law (the Código Civil, the Civil Code, which applies in most of Spain, including Madrid) reserves a fixed share of the estate for certain close relatives. That reserved share is called the legítima, and the relatives entitled to it are herederos forzosos — forced heirs. For children and other descendants the legítima is two thirds of the estate: one third divided equally between them (legítima estricta, the strict forced share) and one third which the testator may distribute unevenly among descendants (tercio de mejora, the betterment third). Only the remaining third is free to leave to anyone (art. 808 CC). There is no equivalent in English or American law, where a person is in principle free to disinherit an adult child, and it is the single most common reason foreign residents come to us.

The second is that there is no probate in the English sense: no grant, no personal representative appointed by a court, no estate administration under court supervision. In Spain the heirs themselves — identified either by the will or by a notarial declaración de herederos (declaration of heirs) where there is none — accept the estate and divide it, normally in a deed before a notary. A court only becomes involved when they cannot agree. That makes an uncontested estate faster than probate, and a contested one a civil lawsuit rather than a court-supervised administration.

When it is worth bringing in a lawyer

Not always. But it is when any of the following applies:

• There were gifts during the deceased’s lifetime to one of the heirs, even years ago.
• There are children from different marriages.
• There is a surviving spouse with a life interest over part of the estate.
• There is a company or shareholdings among the assets.
• Someone believes the will does not reflect what the deceased really wanted.
• One heir will not say whether they accept or not and everything is blocked.
• There is already a deed of partition and the figures do not look right to you.

If none of them applies, we will say so and save you the expense.

What we work on

Lifetime gifts: computation and collation

These are two different operations and they are confused often, including by professionals. Computation (computación, art. 818 CC) means adding the value of lifetime gifts back into the estate in order to calculate how much of a forced share each forced heir is owed: it affects the calculation for everybody. Collation (colación, arts. 1035 et seq. CC) means deducting from one particular heir’s share what that heir has already received: it affects only that heir. When a gift is computed wrongly, or when equivalent gifts are treated by different criteria, the whole division goes off course. We check how they have been treated before you accept anything. We set this out in the guides to collation of lifetime gifts and to computation and attribution of lifetime gifts.

Forced share, omission of an heir and disinheritance

The legítima is the part of the estate the testator cannot dispose of freely: two thirds for children and descendants, made up of the strict third and the betterment third (art. 808 CC). If a forced heir has been left out of the will — preterición, omission, art. 814 CC — or cut out without one of the grounds the law lists exhaustively — desheredación, disinheritance, arts. 848 et seq. CC — there are ways of reacting. There are also time limits, and they are not long. We explain it in detail in the guide to forced heirship, omission and disinheritance.

Contesting a will

A will can be challenged on the ground that the testator lacked capacity, that consent was vitiated — deception, pressure, undue influence over a vulnerable person — or that the formalities were not observed. Each ground has its own time limit and its own burden of proof, which is usually demanding. Not every will that upsets the family can be set aside. The first thing we do is tell you frankly whether there is a case, because a badly judged claim to annul a will is expensive and breaks families with nothing to show for it. We explain it in detail in the guide to contesting a will.

Judicial division of an estate and opposition to the deed of partition

When the heirs cannot agree, the division is resolved through the procedure for judicial division of an estate (división judicial de herencia, arts. 782 et seq. LEC, the Civil Procedure Act), in which a contador partidor — an accountant-divider appointed to draw up the division — may be named. The cuaderno particional, the deed of partition that accountant draws up, can be challenged. This is where we have done most of our work. If you already have one in front of you and the figures do not add up, this is the moment to have someone look at it: once it has been accepted, undoing it is far harder. We develop this in the guide to estate distribution and the deed of partition.

When an heir neither accepts nor renounces

It only takes one of those called to the estate to say nothing for everything to stop, while the tax deadlines keep running. Art. 1005 CC allows that heir to be served with a formal request before a notary to accept or renounce within thirty calendar days, with the warning that silence will be treated as unconditional acceptance. Since the 2015 reform there is no need to go to court: it is quick, inexpensive and usually enough. We explain it in the guide to accepting or renouncing an inheritance, together with the declaration of heirs where there is no will.

Acceptance under benefit of inventory

Where it is not clear whether an estate carries more debts than assets, simply accepting can prove very costly: the heir then answers for the debts with their own assets. Acceptance under benefit of inventory (beneficio de inventario) limits the heir’s liability to the value of what is inherited. It has to be applied for in time and in the proper form. We develop this in the guide to accepting or renouncing an inheritance.

Time limits worth keeping an eye on

• Inheritance tax: six months from the death, extendable by a further six if the extension is applied for within the first five.
• Claims to set aside a will or to recover a forced share: these vary according to the ground relied on, and some are short. If you suspect there is a problem, take advice early: time works against you.

Where we work

Our office is in Villanueva de la Cañada, and we regularly act in Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón, Brunete, Villanueva del Pardillo and the rest of western Madrid. Proceedings to divide an estate are heard by the court for the place where the deceased was last domiciled, not where the heirs live: if you live outside the area, or outside Spain, that is no obstacle to our handling the case. We work in English, French and Portuguese as well as Spanish.