Succession Law Essay Sample
When person dies. one or several individuals have to take charge of his rights and duties. the province of a dead person comprises non merely all sorts of belongings and rights owned by him. but besides his debts and duties. The succesion jurisprudence determines the fate of all belongingss and ancestral dealingss of the dead person. whether active or inactive. The succesion can take topographic point by virtuousness of an express assignment. The sequence can be cosmopolitan ( all the rights and duties and the inheritor is the cosmopolitan replacement ) or remarkable ( merely succeeds to the rights of the dead person ina individual right. They are called legaletees. ) THE Heir:
is the cosmopolitan replacement to the full rights and duties of the dead person which are capable to be transmitted. The inheritor can be appointed by the dead person or by the jurisprudence. Here we note that the Spanish jurisprudence admits the possibility to name in testament a individual who shall have the heritage when the appointed inheritor dies.
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When there are several inheritors to the dead person. they shall inherit as co-heirs and each of them becomes an undivided proprietor of the effects of the sequence for the portion or part coming to him. Credence of the heritage: but the inheritor merely acquires his place as such from the minute he accepts the heritage. When the individual called to the heritage accepts it. he acquires the right from the decease of the dead person. The credence of the heritage is non merely retroactive but besides pure. indivisible and irrevokable. The chief consequence of the credence of the heritage is the acquisition thereof and the premise of the place as inheritor of the dead person. The benefit of the stock list: in order to restrict this liability. the inheritor has the possibility to inquire for the enjoyment of the “benefit of inventory” .
If the inheritor gets the benefit of stock list he shall be apt for the charges of the sequence merely to the value of the effects of the heritage. In this instance. his ain patrimony shall non be affected by the debts. bequests and charges of the sequence. The inheritor who wishes to bask the benefit of stock list has to do a formal statement in this respect before a Notary Public. The term to inquire for the benefit of stock list varies depending on if the inheritor has the assets of the heritage in his ownership or non. He shall do the petition for the benefit of stock list or for deliberation within 10 yearss from the twenty-four hours on which he has had cognition of his status. TESTAMENTARY OR VOLUNTARY SUCCESSION: THE WILL. THE LEGITIME: The Civil Law grants everybody the possibility to set up who shall inherit and the manner in which he wants to be suceeded. When person voluntarily decides his sequence we talk about testamentary or voluntary sequence. -Testament or will: A testament is a one-sided act because merely the testate makes the temperament of his patrimony.
A testament is besides a personal act. in the sense that merely one individual dispose of his assets by testament and that ist formation can non be entrusted to 3rd parties. However. this does non forestall the possibility to intrust to a 3rd party the distribution of the amounts that the testate leaves in general to determined groups ( charities. to the poor… ) Testaments are besides formal Acts of the Apostless. Testaments shall merely be valid if executed in the signifier required by jurisprudence. . capacity to testate: anybody can testate unless expresly prohibited by jurisprudence: bush leagues under 14 old ages can non do a valid testament and individuals for good or by chance out of their rights heads do non hold capacity to testate. A individual incapacitated can do testament if the determination declaring his incapacitation does non incorporate a statement about his capacity to testate. . sorts of testaments: the Civil Code differentiates between common and particular testaments depending on if they are made in normal or particular fortunes.
Common or ordinary testaments have general demands of signifier and can be used by anybody holding sufficient capacity to testate. Particular testaments have more or less formal demands depending on the instance and can merely be used by individuals under particular fortunes. They can be olographic or closed: olographic testaments are those wholly written dated. and signed in the handwritting of the testate. They can be executed by individuals of legal age. The individual with whom such a testament has been deposited has to show it to the Judge every bit shortly as he knows of the decease of the testate. The Judge shall open the olograpih testament. subscribe all ist pages and verify the individuality of the testate. Open testaments are those authorised in forepart of a Notary Public. The Notary has to attest that he knows the testate or has duly identified him. and that he believes that the testate has sufficient capacity to testate. The testate has the right to read the will himself. In any event. the Notary shall read it out loud so that the testate can declare it if conforms to his will. If the unfastened testament is declared null because the formalities established for the executing are non followed. The Notary shall be apt for amendss in instance the mistake arises from his maliciousness or ignorance.
A close testament has to be composing. it shall be signed by the testate at the terminal and if its written by a mechanical mean the testate shall subscribe all pages. The testament shall so be introduced in an envelope. which shall be closed and sealed. and giving to a Notary Public. . The executors: in the testament. the testate may to name one or several executors that shall transport out the waies and petitions of the will. The testate may name one or more executors. Successively means that one individual should be the executor in instance a anterior individual is non. because he did non accept or did non hold the necessary capacity. The executor who does non accept the officer or renounces without justified cause. shall lose what the testate might hold left to him unless he had a right to legitime. Finally we have to observe that the executor?s office is impermanent. and the jurisprudence established clip bound for the executors to transport out their occupation. THE LEGITIME:
The jurisprudence established who should have portion of the heritage. and the testate is forced to follow such regulations. It?s the part of the assets which the testate can non dispose of because they are reserved by the jurisprudence for the legitime inheritor. Article 807 CC provides who are the legitimate inheritors for Spanish Civil jurisprudence: kids and posterities with regard to their parents and ascendents. parents and ascendents with regard to their kids ans posterities and the widowman or the widow in the mode and extent established in the Civil Code. . Legitime of kids and posterities: consist on two tierces of the assets of the heritage.
Of those two tierces. one tierce has to be every bit distributed among the kids or posterities ( short legitime ) . The other Third. the testate can give to any of his kids or posterities. . Legitime of parents and ascendents: if the parents or ascendents are the lone 1s with a right to legitime. their legitime part shall be of one half of the assets of the heritage. . Legitime of the widowed partner: ever consist of a usufruct. If the widowed partner is merely 1 with a right of legitime because there are non posterities. nor ascendents. he shall hold the right to the usufruct of two tierces of the heritage. The Code is non generous with the widowed partner and the parts to which a usufruct is granted to them are rather little. Legal SUCCESSION OR SUCCESSION AB INTESTATO:
A individual dies intestate when he dies without doing a will. without validly go forthing something to attest his wants with regard to the disposal of his province after his dead. Legal instances in which takes topographic point are: when there is no will. when the will does non include all the assets of the dead person. when the inheritor is incapable to inherit and when the inheritor dies before the testate. When the dead person has non appointed an inheritor. the jurisprudence presumes who would hold be appointed. for it is understood that the generalization of individuals would wish their close relations to succed them. On the firts manus the propinquity of the household relationship is determined by the figure of coevalss. Each coevals constitutes one grade. The series of grades form a line. which might be direct or collateral. A direct line is constituted by series of grades of individuals falling one from the other. A indirect line is constituted by the series of grades between individuals who do non fall one from another but who come from “common trunk” . Order of the legal sequences:
posterities ( it is presumed that anybody deceasing without testament would wish his kids to inherit foremost. For illustration: if the dead person had two kids they shall have half of the province each. If the dead person had any kids who died before him and those kids had posterities in their bend. these latter shall take their topographic point. These means that in instance of grandchildren and other posterities. the estate shall be divided “per stirpes” . each group of brothers having what would hold corresponded to their dead male parent. Ascendants: If the dead person have non kids or posterities. he shall be inherited by his ascendents. The male parent and the female parent shall inherited in equal portions and if merely one of the parents is alive. he shall inherit everything. If the parents of the dead person are non alive. the nearest ascendents in degree shall inherit Spouse: Missing posterities or ascendents their heritage shall travel to the partner of the dead person unless they were judicially or the facto separated. Collaterals: if there are non posterities. ascendents or partner. their boies shall inherit with penchant to other collaterals. The State: if there are non descendants. ascendents. partner or collateral relatives up to the 4th grade. it shall be for the State to inherit.