Inheritance is not just plain acquiring of property. It has many implications on the beneficiary including incurring extra costs on assets or acquiring debt.
Once named a beneficiary, it is paramount that you get guidance from an expert attorney and a trusted tax advisor to see how the inheritance might affect your financial state. Working with specialists who are used to dealing with wills and probate is essential.
What you need to know about Wills, Probate, and Inheritance?
Inheritance without a Will
The Legal succession
Legal succession occurs if no will or contract of inheritance exists at the time of the death of the testator. In this case, Inheritance is determined by the following factors in the hereditary succession:
- Marital status of the testator (married, single, divorced, widowed)
- Matrimonial property of spouses or registered partnerships (gain, separation of ownership or community of property)
Who inherits according to the legal succession:
In the case of kinship, the degree of kinship with the testator determines who is entitled to inherit from relatives and who is excluded from inheritance. Inheritance of the surviving spouse is determined by the matrimonial property of the spouse and by which relatives live at the time of the succession.
Inheritance with a will
With the help of a will, you can decide what to do with your estate. You can also include persons who are excluded from legal succession. For a will to be valid, you must adhere to formal procedural requirements and formulate your final will in a clear, unambiguous manner and according to the inheritance rules.
Also, remember that your closest relatives, spouses, or registered partners have a compulsory portion, even if you do not consider them in your will.
There are, among others, the following forms of a will:
- The personal testament
- The notary testament
- The inheritance contract
Making a will
With inheritance, you determine who your legal successor will be. Your legal successor takes over immediately and automatically all your rights and obligations after your demise.
So they inherit, in addition to your assets, your debts and other liabilities. They are also obligated to fulfil the legacies and conditions you additionally have in the will.
With a legacy, you assign a particular asset to a third party, such as a monetary amount, a savings account, securities, shares in a GmbH, valuables, or a property.
Your heir is required to fulfil the legacy of the estate you have arranged. The legatee does not have the status of a legal successor; he must instead claim his legacy claim against the heir.
You may complain to your heirs or legatees with certain conditions: for example, in your will, you should declare that your son should be the sole heir, but he is required to take care of the grave for 25 years or to establish a foundation with part of the estate.
Probate means applying for the legal right to handle a person’s property after they die, and usually done in a probate court. If a will was left, it is considered valid if signed by the diseased in the presence of two witnesses.
An executor- someone named to deal with the will applies for probate. The executor will need the original will and any subsequent updates to apply for probate.
Therefore, you have to find the original will which in most cases the executor might have an idea of where it is. It may be kept in the house, with a solicitor or at the probate department.
In case it is at the probate department, you need to produce a valid death certificate and also prove you’re the executor.
In cases where the original will cannot be found, you fill in the lost will form. If there is more than one will, the most recent copy is executed.
The Probate Process:
- After a successful probate application process, send a copy of the probate to organizations that hold assets of the deceased.
- Get access to financial assets
- Pay outstanding debts
- Distribute joint assets – which automatically go to the other owner/s
- Distribute the property once all debts and taxes have been cleared. Beneficiaries of assets that generate income pay for the income tax onwards.
A probate application can be stopped by entering a caveat if there is a dispute on who should apply the probate or legalities of the will. An individual adult can enter a caveat or do it through a solicitor. It takes up to six months.
Declaration of death
The basic document to record the opening of an estate is the death certificate. The declaration of death is a mandatory procedure to be carried out by a doctor at the town hall of the place of death within 24 hours of its finding. It gives rise to the constitution of the death certificate.
This is the starting point for the opening of the inheritance operations and it is from it that all the others flow.
The opening of the succession
Article 720 of the Civil Code provides that “successions are opened by death.” The opening takes place at the very moment of death.
The death certificate generates the opening of the estate. The declared absence and the disappearance of the person also open his succession.
Division is when the dead person leaves several successors, whoever they may be, to collect his estate, without dictating how property should be divided. The property constitutes a shareable mass in which each heir has a definite right of ownership.
The notary then carries out an inventory of succession or an inventory of the deceased’s patrimony. It lists all the heirs as well as the list of assets and values of heritage items.
The inventoried heritage is thus divided between the successors. The latter acquire their property acquired by right.