How is an estate divided between siblings?

Question

José Manuel Alburquerque · Accepted Answer

According to the will or, if there is none, in equal shares. The siblings who are heirs make the division by mutual agreement, with lots of equivalent value. If the will leaves the estate to one sibling and the forced share (“legítima”) to the others, they do not take part in the division and can only claim their forced share from that sibling. If there is no agreement, any heir can ask the court to make the division. The steps Make a list of the deceased's assets and debts and put a value on them. Deduct the debts, the funeral expenses and the legacies that have to be handed over. Work out each person's share according to the will or, if there is none, in equal shares. If the widower or widow has the usufruct, the siblings receive the assets subject to that usufruct. Make up lots that match those shares. The law requires equality as far as possible. Sign the division, in a deed before a notary if there is real estate. File the returns for the “impuesto de sucesiones” —the Spanish inheritance tax— and for municipal capital gains tax within six months of the death, even if the division has not yet been made. What a sibling received from their father or mother during the parent's lifetime is only deducted from their share if it was given as an advance on their forced share or if this was stated when it was given. Even so, the will can say that it is not to be deducted. This applies if the estate is governed by Catalan law. Under the Spanish Civil Code (“Código Civil”) it is deducted, unless the father or mother said otherwise. What cannot be divided A flat or a business can go to one of the siblings, who pays the others their share in cash. If this is done when the estate is divided, there is normally no additional tax. They can also be sold and the money shared out, or all the siblings can keep the asset in co-ownership. Co-ownership tends to cause problems when one of them wants to sell. If one of the siblings has sole use of an asset, for example by living in the flat, that does not take it out of the division. Rent collected and expenses paid up to the division are apportioned according to each sibling's share. If there is no agreement The division requires everyone's agreement. If the will appoints an executor or an estate partitioner (“contador partidor”), they can carry it out without the heirs. Even so, if everyone agrees and the will does not prohibit it, the heirs can do it themselves. If not, any sibling who is an heir can apply to the court for the division of the estate. The heirs choose a partitioner, who proposes the division. If they cannot agree, one is chosen by lot. If anyone objects, the judge decides. The process is slow and expensive. Before anyone goes to court, the law generally requires them to try to reach an agreement, for example through mediation.