15. Succession Law

Question 1

Types of succession based on the will of the decedent:

Answer 1

1. Testamentary or voluntary succession: it takes place by virtue of an express appointment of the decedent through a testament or will.
2. Legal succession, ab intestato succession: when the decedent has not left an expressed will and the succession shall be appointed by law.

Question 2

Types of succession based on what is succeeded:

Answer 2

1. Universal: a universal successor succeeds to all the rights and obligations of the decedent.
2. Singular: the singular successor (legatee) only succeeds to the rights of the decedent in a single article of property or in a single right.

Question 3

When does legal or ab intestato succession take place?

Answer 3

1. When there is no will, it is null or has lost its validity.
2. When the will does not include all the assets of the decedent.
3. When the appointed heir is incapable to inherit.
4. When the condition imposed for the institution of an heir does not occur, or if the heir dies before the testator or repudiates the inheritance.

Question 4

Order of succession:

Answer 4

1. Children and descendants in their own rights of representation.
2. Ascendants in their own right.
3. Surviving spouse (not judicially or de facto separated: although divorce is not declared, they are separated).
4. Collateral relatives.
5. State (if there are no previous).

Question 5

What is inheritance per capita?

Answer 5

An equal share is given to each of a number of persons, all of which are separated from the decedent in equal degree.
Happens when only children incurring the succession.

Question 6

What is inheritance by stirpes?

Answer 6

The successor inherits by their right of representation of such ancestor and not as individuals.
Happens when the decedent has any children who died before him, and those children had descendants in their turn.

Question 7

How do ascendants inherit?

Answer 7

If both parents are alive, they inherit in equal shares.
If one of them is dead, the other shall inherit everything.

Question 8

Which collateral relatives inherit with preference?

Answer 8

Siblings and their sons.

If there are only double bond siblings (from both parents), they shall inherit per heads in equal shares.
If siblings of the decedent concur with nephew, the former shall inherit per capita, the latter per stirpes.

If no siblings or nephews exist, the cousins or great-nephews/nieces shall inherit, but beyond that there is no right to succeed ab intestate.

Question 9

Who does not have capacity to testate?

Answer 9

In general anybody can testate.

Minors under 14 shall only be prevented toe execute an holographic testament.

Persons permanently or accidentally out of their right minds. Mental alienation is sufficient to be prevented from making a will: an incapacitated person can make testament if the decision declaring his incapacitation does not contain a statement about his capacity to testate, and two doctors appointed by the Notary declare his capacity to testate.

Question 10

Who are the executors of the testament?

Answer 10

The testator may appoint one or several executors, who shall carry out the directions and request of the will. They have administrative and executive powers. Also, if their duties have not been established, they shall, among other duties, arrange and pay for the funeral of the deceased, pay for the legacies that have to be satisfied, supervise the execution of all that the testator has ordered in their will, etc.

Question 11

Types of testaments:

Answer 11

1. Common:
   a) Holographic.
   b) Open.
   c) Closed.
2. Specific:
   a) Military.
   b) Maritime.

Question 12

What are holographic testaments?

Answer 12

Those entirely written, dated and signed in the handwriting of the testator.

Question 13

Who can execute holographic testaments?

Answer 13

Only those persons of legal age.

Question 14

Protocol for holographic testament:

Answer 14

Has to be incorporated to a protocol, so it shall be presented to a Notary within five years from the date of death.

The person with whom such a testament has been deposited has to present it to a competent Notary as soon as he knows of the death of the testator. If he fails to present it within the ten following days, he shall be liable for the damages caused by the delay.

The notary shall open the testament, sign all its pages, verify the identity, and finally order the testament to be incorporated to a protocol.

Question 15

What is an open testament?

Answer 15

Those authorised in front of a Notary Public, being the Notary aware of the contents of the will.

They can be orally or in writing.

Question 16

What does the Notary have to do in open testaments?

Answer 16

Certify that he knows the testator or has duly identified him, and that he believes that the testator has sufficient capacity to testate.

He shall write the testament in accordance with the will of the testator, stating place, hour and date of execution.

Shall read aloud so that the testator can declare if it conforms to his will, and if it does, hit shall be signed by the testator and two witnesses.

Question 17

When do the witnesses have to attend the execution of an open testament?

Answer 17

1. When the testator declares that he cannot or doesn’t know how to sign.
2. When the testator is blind or declares that he cannot or does not know how to read.
3. When the testator or the Notary request the presence of the witnesses.

Question 18

What happens if the open testament is declared null because the formalities established for its execution are not followed?

Answer 18

The Notary shall be liable for damages in case the fault arises from his malice or inexcusable negligence or ignorance.

Question 19

What is a closed testament?

Answer 19

Those written by the testator and closed by him and then given to the Notary Public who does not know about its content thereof.

Question 20

Who is not allowed to execute a closed testament?

Answer 20

Blind persons.

Question 21

How shall the closed testament be?

Answer 21

Written, either by the testator (signed by him at the end) or written by him using a mechanical device (also signing all the pages and also at the end), or by someone else at the testator’s request.

The testament shall be introduced in an envelope, which shall be closed and sealed, and given to a Notary Public.

Question 22

What are specific testaments?

Answer 22

Those that have more or less formal requirements depending on the case, and can only be used by persons under special circumstances.

Question 23

Military Testament:

Answer 23

Those made by soldiers at time of wat or at war.

Question 24

Maritime Testament:

Answer 24

Those made during a sea voyage by those in board, and those made in a foreign country or in a foreign vessel.

Question 25

Define Heir

Answer 25

The universal successor to the entire rights and obligations of the decedent which are subject to be transmitted. The heir receives the entire property of the decedent that he did not leave to other persons.

Universality: all assets and liabilities.

Question 26

What is an Heir ex re-certa?

Answer 26

An heir appointed to inherit a certain and specific object. They shall be deemed as a legatee.

Question 27

Define Legatee:

Answer 27

An heir appointed to inherit a certain and specific object.

Specific goods: only assets.

Question 28

What is the legitime?

Answer 28

It is that interest in the inheritance of which legitimate heirs cannot be deprived of. It is the portion of assts that the testator cannot dispose of because they are reserved by law for the legitimate heirs.W

Question 29

Who are the legitimate heirs?

Answer 29

1. Children and descendants with respecto to their parents and ascendants.
2. In the absence of (1), parents and ascendants with respect to their children and ascendants.
3. Spouse: widow or widower.

Question 30

What is the legitime of children?

Answer 30

2/3 (long legitime).
1/3 should be equally distributed among the children (short legitime).
THIRD OF BETTERMENT: the other third, which the testator can give to any of his children.

Of the last third, the one not part of the long legitime, the testator can freely dispose of.

Question 31

What is the legitime of parents?

Answer 31

1/2.

If the parents occur with the widow, their legitimate shall be 1/3.

Question 32

What is the legitime of widowed spouse?

Answer 32

They have the right to legitimate unless legally or de facto separated from the decedent.

· If no ascendants or descendants (only widow): right to the usufruct of 2/3.
· If widow AND children (no ascendants): right to the usufruct of the third betterment.
· If widow AND ascendants/parents (no children): right to usufruct of 1/2.