“It is mandatory to include all heirs in the will.” If not, they are still included

Making a will seems like the movement most sensible in the world since it is written down who receives what and fights between heirs are avoided. In most cases it works like this. But such and how they stand out our colleagues Trendsthat document, signed before a notary to put things in order, may end up being useless if all legitimate heirs are not included, creating a problem where there was none.

The lawyer Blanca Palmero explains with crystal clarity in a video on the YouTube channel of the Vilches Abogados law firm, what happens when an heir is missing from the distribution and why the reason changes everything. The consequences of this “forgetfulness” are very serious, and can even render the will ineffective when someone with right to inherit stays outside of it.

Preterition: forgetting that has its own name. There is a legal term for when a forced or legitimate heir (those who by law have the right to receive the legitimate) does not appear in the will: preterition. It is, in Palmero’s words, the “omission in a will of some person who, by kinship, has the right to be in it.” As strange as it may seem, the lawyer assures that it happens quite often. The most common case is that of someone who makes a will and leaves everything to the children they know. Years later another unknown son appears with the same rights and duties.

The key is not to confuse this term with disinheritance. Disinheriting someone is an express and conscious act: the testator expressly decides to remove a person from his will and leaves a record of it in writing. The preterition may be involuntary, the result of forgetfulness or ignorance of the existence of that person. And that difference, intentional or not, is what determines what happens later during the execution of that inheritance.

What the will cannot touch: the legitimate. In Spain it is not possible to distribute assets as one wants. The Civil Code divides inheritance into three thirds: strict legitimate, improvement and free disposal. Forced heirs (children, parents or spouse as the case may be) are guaranteed a share. That is the legitimate one, and no will can ignore it.

He article 807 of the Civil Code establishes that, when one of these forced heirs is left out of the will, intentionally or not, preterition occurs.

When forgetting was intentional. If the testator knew that there was a forced heir and intentionally decided not to include him, the will is not void. That heir can claim the legitimate right recognized by the Civil Code. Palmero explains that to cover that part that was not contemplated in the distribution established in the will “the institution of other heirs will be reduced” so that the excluded person receives what corresponds to him. That is, each heir will cut part of their percentage of legitimacy and, if that is not enough, the legacies will also be cut. Until the new part is covered.

The will still stands, but the distribution is adjusted to respond equitably with the mandatory part designated by the regulations, even if the testator did not want to leave him anything. That is, in that case, the will is not annulled, it is only corrected.

Heir, what heir? Unintentional preterition occurs when the testator was unaware that a forced heir even existed. The inheritance expert cites the most common example in these cases: that of someone who did not know they had a child. Or situations with a pending filiation process, in which a judge must establish the parent-child relationship. In these cases the consequence can be much more serious, potentially invalidating the will.

If the forgetfulness affects only one of several forced heirs, the action is similar to what we have already seen with intentional “forgetfulness.” In that case it cancels the attribution of heirsincluding the new situation, but legacies and improvements that have already been assigned can be maintained. In no case does the excluded person lose his or her right to claim his or her share of the legitimate income.

The most serious case is if the unintentional preterition affects all forced heirs. In that case, the will is annulled since it must be reformulated in its entirety to include the new heirs at least in the third that is included in the Civil Code. That is, in that case, the inheritance becomes a condition of intestate successionas if that will had never existed and the law decides who inherits and in what order.

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Image | Unsplash (Leon Seibert), LinkedIn