What is a legacy? What elements are necessary? What types are there? What is the difference between heirs and legatees? On many occasions we will have heard the word legacy either in law school or from a client who has asked us for legal advice to make a will and has left us with the possibility of making a legacy.
It is also common to encounter the legacy once we know the content of a will and we do not know what to do with it. For all these doubts, the purpose of this article is to guide you quickly and easily through the world of successions in civil law.
For this, and closely related to the topic, I leave you a guide that can also help you understand inheritance law such as the Partition of an Inheritance explained with Examples. A very complete article that is very useful to continue clarifying our doubts.
What is a legacy?
We speak of a legacy when the testator or deceased leaves one or more specific assets at the disposal of a person. Modern doctrine characterizes the legacy as a gift due to death that determines a succession in a private capacity.
That is, there is a legacy when the deceased leaves a specific asset in a will to another person who becomes a legatee. For example, grandfather Paco who died indicates in his will that he bequeath his grandson Antonio his mountain bike.
Difference between heirs and legatees
The difference is clear and is also indicated in our Civil Code in article 660. The heir will succeed for all the assets and the legatee for particular or specific assets.
“An heir is called he who succeeds in a universal capacity and a legatee is called one who succeeds in a private capacity.”
Therefore, to differentiate an heir from a legatee we simply have to stick to the assets that he receives. If we talk about specific assets, it will be a legatee and we will be dealing with a legacy and, if the person inherits part or all of a set of assets or assets, we are dealing with an heir.
Practical example
For example, following the previous case, when grandfather Paco died he left in his will to bequeath the football boots to his son Felipe specifically and the distribution of all assets among the rest of the heirs who were his sons. he.
As we see, Felipe becomes heir and legatee, and the rest of his direct relatives are only heirs. It is a simple way to make a legacy.
Legacy Elements
In a legacy we can highlight several elements or requirements that make its existence possible. Otherwise we would be facing another legal figure. Among them son:
a) Personal elements. They are the testator, the legatee and the person who must lend the legacy or person encumbered by it. Regarding the latter, article 858 of the Civil Code provides that “the testator may encumber with mandates and legacies, not only his heir, but also the legatees. These will not be obliged to respond to the lien except to the extent that the value of the legacy reaches.”
From which it follows that the heirs who accept the pure inheritance and simply respond to the legacy with their own assets. Here as an example we can include the one we mentioned previously. Paco is a testator, Felipe is a legatee and his brothers are heirs with him.
b) Real elements. All things susceptible to appropriation, rights and benefits of any kind can be the object of the legacy. Article 865 is limited to declaring that the legacy of things that are outside of commerce is void.
For example, Paco could bequeath any asset that is marketable. Even benefits or obligations as we will see later. He could not read weapons, toxic or narcotic substances or public goods since they are things that are outside of commerce.
c) Formal elements. It is an essential requirement that the legacy be verified in a will. It is necessary that the legacy be included in the will. For example, before his death, Paco made a will before a notary in which he bequeathed the soccer boots to his son Felipe.
Legacy effects
Making a legacy will produce a series of effects or consequences for the legatees, which are:
a) Powers of the legatee. The legatee acquires the right to the pure and simple legacies upon the death of the testator, and transmits it to his heirs (881). For example, Felipe, who receives the car from his father Andrés as a legacy, acquires ownership of it and will be able to transmit it to his heirs in the event of his death.
b) Expenses for delivering the legacy. The expenses necessary for the delivery of the thing bequeathed will be borne by the inheritance, but without prejudice to the legitimate (886 paragraph 3). For example, Felipe, upon receiving the car as a legacy from his father, Andrés, would have to pay the cost of maintenance and transportation of the car, etc. Such expenses will be charged to the estate.
c) Distribution of the entire inheritance in legacies. When the entire inheritance is distributed in legacies, there is no heir who is responsible for hereditary debts. For this reason, article 891 provides that “if the entire inheritance is distributed in legacies, its debts and encumbrances will be prorated among the legatees in proportion to their shares, unless the testator has provided otherwise.”
Practical example
For example, in the event that Andrés distributes his inheritance in legacies to his children, everyone will respond proportionally for the debts that are generated based on their percentage of participation in the inheritance they have. Some will have one third, others two thirds, etc.
This is why the figure of the splitter of an inheritance is of great importance. To do this, I recommend reading The Essential Role of the Accountant in the Distribution of an Inheritance.
Types of legacy
We can find in the Civil Code a multitude of ways to make a legacy or types of legacy. Knowing them can help us better realize our own legacy. We highlight:
- Legacy of a specific thing belonging to the testator. It is the legacy that we have been mentioning. When the testator leaves a specific asset that is his property. For example, Andrés bequeaths Felipe his mobile phone.
- Legacy of someone else’s thing. It occurs when the testator bequeaths property that belongs to a third party or belongs in part to him or a third party. For example, Andrés bequeathed his son Felipe a typewriter that also belongs to Andrés’ brother.
- Legacy of encumbered thing. It occurs when, for example, a house that is mortgaged is bequeathed. Andrés bequeaths his son Felipe his house and it is mortgaged. Felipe will have to pay the mortgage on the house.
- Alternative Legacy. In alternative bequests, in which two or more things are left, of which only one must be delivered. The general rule will be, therefore, that the choice of the thing that must be delivered to the legatee will be made by the heir, who appears as the debtor in the succession relationship.
For example, Andrés bequeaths Felipe a bicycle. Andrés had two bicycles and it must be Felipe who chooses which one to keep.
- Gender legacies. In the gender legacy, the heir will choose the thing that must be given, complying with giving something that is neither of inferior nor superior quality. For example, Andrés bequeaths Felipe 100l of oil. Therefore, Felipe must receive 100 liters of oil of the same type and value as the legacy.
- Pension legacies. Legacy of a periodic pension or a certain annual, monthly or weekly amount (art. 880). For example, Andrés bequeaths an annual amount of €1,200 to his son Felipe as alimony.
- Legacy of liberation. The legacy of forgiveness, or release of a debt that the legatee had contracted with the testator, will only take effect on the part of the debt subsisting at the time of the testator’s death. It will also include the interest that is due on the debt at that time. The heir will fulfill the legacy by giving the legatee a letter of payment, if he requests it.
For example, Andrés, who has a debt in his favor with his nephew Juan for a business carried out between them, makes a legacy of debt relief in his favor, extinguishing it.
- Legacy of credit. It is one in which the testator leaves the legatee the credit that he had against a third party. For example, following the previous case, Juan’s debt would be bequeathed in favor of Felipe, son of Andrés.
- Legacy of debt. This is the name given to the provision by which the testator declares that he leaves his creditor the same thing that he owes him. For example, if it is Andrés who is Juan’s debtor, Andrés can bequeath to Juan an amount of money equal to the value of the debt incurred.
Conclusion
As we have explained throughout the article and to recapitulate, a legacy is the power that a testator has to leave a specific asset to a person. This would make that person a legatee and must be done by means of a will.
It is important when making a legacy to take into account the different existing types to carry out a better succession so that we choose the type of legacy based on what we want to bequeath.
As we see, knowing the world of inheritance law is very useful, especially when we find ourselves in a testamentary situation, both personal and foreign. With this quick guide we can now get a complete idea about legacies, their effects and application.