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I was designated in a will as a co-inheritor of the life interest on a property. What is my position if I have not yet accepted the said inheritance?

Inheritance Law

Antonio Flores Vila

3rd of March 2002

Q. A Will was made in Spain relating to an apartment in Calella de Palafrugell. The freehold to this property was left to a sole beneficiary, but 8 others were each left a lifelong Right Of Occupation (what exactly does this mean?). Also, in the event of this property being sold, the Will states that the freeholder keeps 50% net proceeds of the sale, whilst distributing the remaining 50% equally among the 8 others.

The '8' have been told that the Property Registrars in Spain require that a Deed of Ratification be signed before a Notary by those left an occupation interest. To date, 3 of the 8 have refused to sign this, or any other document or to reveal their passport numbers, as requested.

Given the above scenario, I would be very grateful if you would kindly let me know what will happen to the property now? Will the freeholder and the 5 others who have signed the Deed of Ratification be able to 'remove' the interest of the remaining 3 without their involvement. Do the '3' have a right to be informed about what is happening as they have written to the freeholder expressing their concerns and received no response. Is there any time limit on all of this? As one of the reluctant '3', I would very much appreciate your advice in relation to the above. We cannot afford a lawyer, and are based in the UK, and we are not being told all the facts. Many thanks in anticipation. Best wishes, Nikki Scott.

Nikki Scott
St. Albans

    A. Dear Nikki Scott,

    The beneficiaries of the ┬┤life interest┬┤ (or Right of Occupation, in Spanish, USUFRUCTO), will have to sign a deed of acceptance of the will, which would then enable them to register their interest in the property. Those who dont manifest their acceptance of the will, will have a period of 30 years to accept the inheritance.

    However, article 1.005 of the Civil Code states that any interest person in the inheritance can file, in courts, a petition to the named person in the will to manifest whether they accept or reject their share of the inheritance. The judge will have to summon the inheritor, within 30 days, in order to declare whether he/she accepts the inheritance, with a warning that a refusal to appear in court and decide for one or the other will amount to an acceptance. You may well be forced, in lieu of art. 1.005, to make a decision if other co-inheritors requests it.

    In summary, any inheritor should either reject or accept the inheritance, or alternatively challenge the will in the courts, if they deem it is invalid according to the provisions of the personal law of the testator. In my opinion, not doing anything is not an approach which will benefit the passive inheritor.

    Those who have accepted their inheritance portion or share of the life interest will be able to register it, and obviously enjoy the proceeds or income from that property, namely rental income or holiday enjoyment. The inheritors who do not accept in a public deed but perform acts which can only be done in que capacity of the beneficiary of the life interest will be automatically deemed to have accepted the inheritance. For example, enjoy a holiday or receive their rental share.

    As far as the beneficiary of the bare ownership is concerned, he will able to sell the bare ownership of the house, mortgage it and do anything with it but live in it or alter the configuration of it. Obviously, any act of disposition of the house will be restricted to the bare ownership only, without the life interest.

    If you need more help do not hesitate to contact us.

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