Entre matrimonio y pareja de hecho hay diferencias significativas y, en esta ocasión, vamos a abordar una de las más desconocidas: los derechos hereditarios de las parejas de hecho. Al respecto y antes de seguir abordando el tema, hay que tener en cuenta que no existe una ley a nivel estatal que regule esta circunstancia y que, por tanto, son las comunidades autónomas las que fijan -o no- en sus normativas qué derechos tienen las uniones de hecho en el caso de fallecimiento de uno de los miembros de la pareja.
Si bien en el Código Civil se recogen los derechos hereditarios de los cónyuges viudos -cuando existe unión matrimonial y no se ha producido un divorcio-, en el caso de las parejas de hecho, según dónde estén inscritas tendrán derecho o no a heredar y, por tanto, si no está regulado en esa comunidad autónoma, salvo que el fallecido hubiera dejado otorgado testamento e incluyera a su pareja, esta no tendría derecho a heredar.
Vamos a ver a continuación las diferencias en lo relativo a herencias de parejas de hecho por comunidades autónomas…
Casi un millón de inmigrantes decidieron abandonar el Reino Unido y volver a sus países durante 2020, según el Observatorio de Inmigración de la Universidad de Oxford (MO, en sus siglas en inglés). La imposibilidad de encontrar trabajo, la falta de ayudas sociales por su situación irregular y una soledad aumentada por el confinamiento motivaron este éxodo. La nueva Ley de Inmigración aprobada por el Gobierno de Boris Johnson, vigente desde el 1 de enero, complicará mucho el regreso de los que quieran intentarlo en un futuro. Pero es la aplicación definitiva del Brexit, a mediados de este año, la que amenaza con convertirse en una bomba de relojería para los miles de personas convencidas de disfrutar ya en este país de una vida estable y asentada…
Benefício de inventário – Corresponds to the right that the heir has to make the acceptance of the inheritance depend on the inventory of the assets that make up the inheritance of the deceased. The final acceptance will only take effect upon the determination of the existence of the assets and liabilities of the inheritance.
Cabeça-de-casal – Is the administrator of the inheritance until its liquidation and sharing.
Certidão matricial – Corresponds to the document identifying the property tax elements, namely, location, area, characterization, confrontations, asset value. Each property is identified by a matrix registration number and its parish and municipality. Since the property is constituted in horizontal property, it is still identified by the letter that corresponds to the fraction.
Certidão predial – Corresponds to the document with the identification of the owner of the property, in terms of ownership, exposing the history of the property, from its construction, possible sales, hereditary successions, mortgages, arrests, liens, etc. Each property is identified by a number of property description and its parish and municipality. Since the property is constituted in horizontal property, it is still identified by the letter that corresponds to the fraction.
Colação – Is the designation given to the operation corresponding to the «return» of the value corresponding to the donations made in life to descendants who are heirs.
Conservatória do Registo Predial – Public entity which concentrates the information on real estate, the building point of view and where it comes to acts of land registration of real estate, such as, for example, its transmission.
Efeito declarativo do Registo Predial – Means that, with the completion of registration, it is stated that the act committed was recorded by advertising the fact that led to registration, adding nothing about the substantive reality.
Efeito constitutivo do Registo Predial – Means that the constitution or transmission of a right depends on the registration. An example of a constitutive registration is the mortgage.
Escritura pública de compra e venda – Contract granted between buyer and seller, with the agreed terms of the purchase and sale, being such agreement drawn up before a notary.
Escritura pública de habilitação de herdeiros – Document drawn up before a notary, in which the deceased is identified the date of death and his heirs.
Herdeiro – Person who contends for the succession of the deceased.
Herdeiro legitimário – Heirs who, by law, cannot be removed from the succession.
IMI (Imposto Municipal sobre Imóveis) – Corresponds to the tax levied on the net asset value of real estate located in Portugal and whose income reverts to the municipalities where they are located. It is responsible for the payment of IMI, who owns the property on December 31 of each year.
Inoficiosidade – Corresponds to the liberalities (donations) that offend the legitimate of the legitimate heirs. Ineligible donations are reducible to the request of legitimate heirs as long as it is necessary for the legitimate legitimacy to be fulfilled.
Inventário – A process that aims to end the hereditary communion or, if there is no need for sharing, to relate the assets that are the object of succession and to serve as a basis for the eventual liquidation of the inheritance.
Legado – Corresponds to a certain good that is left, by testament, to a certain person who can be simultaneously heir. To the legitimating heirs, the testator can institute legacies, in substitution or for the legitimate account. To persons who are not legitimate heirs, the testator can establish legacies, due to the available quota.
Legatário – Person to whom the legacy is made, and may or may not be heir. Menor – Person under the age of 18.
Notário – Person instituted with powers to give legal form and confer public faith to extrajudicial legal acts.
Número de identificação fiscal – Identification of each taxpayer, with the Tax Administration, by means of a number.
Participação do óbito – Procedure to inform the Tax Administration of the death of a person, with identification of the heirs and assets (assets and liabilities) that make up the inheritance, with a view to the settlement of taxes due.
Quota indisponível – Also called legitimate, corresponds to that part of the deceased’s inheritance that is not at his free disposal. This unavailable quota varies depending on the number of heirs. In calculating the unavailable (or legitimate) quota, account must be taken of the value of the assets at the date of death of the deceased, as well as the value of the assets donated, the expenses subject to collation and inheritance debts.
Quota disponível – Corresponds to the part of the inheritance that the deceased can freely dispose of.
Redução da inoficiosidade – Consists on the lawsuit by which the heir, whose legitimate has been affected by donations made in life, requires that the donations effected be reduced to the extent necessary to allow their share to be restored. The right to reduction action shall lapse within two years from the date of acceptance of the inheritance.
Residência habitual – Corresponds to the place where the person is domiciled in stable and non-occasional terms.
Testamento – A final disposition, in which the testator identifies who wants to leave his assets with respect to his available quota, and may also establish legacies.
Valor patrimonial – Corresponds to the value determined by means of an assessment made in accordance with the rules of the IMI Code, and this amount is recorded in the property matrix.
‘succession’ “means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession;”
‘agreement as to succession’ “means an agreement, including an agreement resulting from mutual wills, which, with or without consideration, creates, modifies or terminates rights to the future estate or estates of one or more persons party to the agreement;”
‘joint will’ “means a will drawn up in one instrument by two or more persons;”
‘disposition’ “of property upon death’ means a will, a joint will or an agreement as to succession;”
‘Member State of origin’ “means the Member State in which the decision has been given, the court settlement approved or concluded, the authentic instrument established or the European Certificate of Succession issued;”
‘Member State of enforcement’ “means the Member State in which the declaration of enforceability or the enforcement of the decision, court settlement or authentic instrument is sought;”
‘decision’ “means any decision in a matter of succession given by a court of a Member State, whatever the decision may be called, including a decision on the determination of costs or expenses by an officer of the court;”
‘court settlement’ “means a settlement in a matter of succession which has been approved by a court or concluded before a court in the course of proceedings;”
‘authentic instrument’ “means a document in a matter of succession which has been formally drawn up or registered as an authentic instrument in a Member State and the authenticity of which:
(i) relates to the signature and the content of the authentic instrument; and
(ii) has been established by a public authority or other authority empowered for that purpose by the Member State of origin.”
European Certificate of Succession
To be used by heirs, legatees, executors and administrators invoking their status in other member states to exercise their rights.
Shall be issued by a member state and it is recognized in another member state and shall produce effects without any special procedure being required.
The use of the Certificate shall not be mandatory or exclusive and shall not replace internal formalities for the winding up of the estate.
This glossary is directed mainly to legal advisors dealing with deceased estates with some property situated in Italy, or where Italian domestic law applies.
The glossary lists some of the main Italian legal terminology on the subject, translated into English. However, readers will be aware that the legal meaning and effect of certain translated terms will not be identical to their meaning under English law.
Specific legal advice will be required at all times and this glossary is intended to be a guideline only.
Acceptance of succession
Under art. 470 of the Civil Code, acceptance of a deceased’s estate by an heir may be express or implied.
Express acceptance – may be either by way of a ‘simple’ acceptance or may be subject to the ‘benefit of an inventory’;
Acceptance subject to the benefit of an inventory – limits an heir’s liability for the debts of the estate to the amount of the net assets actually received from the estate. Very stringent deadlines apply in this case and beneficiaries are advised to contact Italian counsel as soon as possible;
Implied Acceptance – when an heir’s conduct is such that it unequivocally shows their willingness to accept the inheritance.
Administrator (Curatore Speciale)
Under art. 356 of the Civil Code, should the deceased have left assets to a minor, even if subject to parental control, the deceased would also be entitled to appoint a guardian to manage such assets. Unless the will provides otherwise, the administrator should request the judge supervising guardianship or court to authorise any act exceeding the normal course of management of the asset, as provided by articles 374 and 375 of the Civil Code (for example, in order to release a mortgage, to establish a pledge or undertake obligations as regards the asset).
Used for the authentication of documents executed in another country which is signatory to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. The apostille is placed on official Government or notarised documents including (but not limited to) powers of attorney, solemn declarations, grants of probate and letters of administration, affidavits, birth certificates, death certificates etc.
Barrister and solicitor (Avvocato)
An Italian lawyer is known as an avvocato (please note that the legal profession in Italy does not provide any distinction between barristers and solicitors).
Central register of published wills
This is a centralised register held by the Notaries’ Registry in Rome it is possible to obtain information from as regards a deceased person having left a will which has been published and, if so, to obtain a copy of it. Italy is also a party to the Basel Convention which has reciprocal consultation arrangements with the centralised registers of countries which have ratified the Convention, including Belgium, France, Holland and Spain.
In 2014 a law totally abolished any previous remaining distinctions between children who were born within or outside marriage, therefore all children now have exactly the same rights of inheritance.
Civil Code (II codice civile)
The Italian Civil Code consists of 2969 articles, divided into the following six books: On Persons and Families, Succession, Property, Obligations, Employment & Business, Protection of Rights.
Is the term used to describe an act, by court order or private deed, to divide up a deceased’s estate into separate portions representing the proportionate interests of the heirs or of persons in community of property. In English, this act is known as partition.
Domicilio (translated in English as domicile)
Of a person is, under art. 43 of the Civil Code, the place in which he/she has established the principal base of his/her affairs or interests. The English translation as ‘domicile’ often causes problems and misinterpretation.
The testator/trix may appoint one or more executors who must ensure that the provisions of the will are faithfully carried out, whether in relation to the entire estate or just to part of it. The figure of the executor is, however, rarely used in Italy. The executor appointed under a will can only manage the estate for up to one year from the death of the testator. This is another instance where the translation into English causes misunderstanding, as the role of the ‘esecutore testamentario’ is very different from that of the executor under English law.
Forced heirship (Reserve hereditaire)
Under Italian law, a testator does not have complete freedom of testation and a certain portion of the deceased’s estate is ‘reserved’ to their immediate family. If a will breaches the share reserved by law, an heir who has been left less than his/her reserved share may bring legal proceedings to remedy such breach, through the reduction of the shares given to beneficiaries without a right to a reserved share or whose reserved share has been exceeded in the testamentary dispositions. Until such time as a reduction is granted, the will remains valid and enforceable.
General Registry of Persons (Anagrafe)
Where the records of births, deaths and marriages, residential address and family status are kept. These are managed by local councils. It also records data for Italian residents as Italian nationals living abroad.
Gift inter vivos
A gift made during a person’s lifetime. Under Italian law, any substantial gift must be taken into account and set off against the person’s inheritance in application of the forced heirship rules. Immovables and movables not capable of simple delivery of possession must be transferred by a deed of gift executed before a Notary and two witnesses.
An individual who succeeds to all the rights and all the obligations of a deceased person, or a portion thereof, either pursuant to a will or by law, should the deceased have died intestate.
Hotchpot (Riunione Fittizia)
The taking into account of gifts inter vivos or advancements in order to ensure an equal distribution amongst the heirs.
Should the person entitled to inherit have not accepted the status of heir and – so far – not taken possession of the estate property, the court may appoint an estate administrator either upon interested persons’ request, or of its own motion.
An ‘ab intestate succession’ means a succession where the deceased did not leave a valid will. In this case, the succession devolves pursuant to the provisions of the Civil Code. In Italy, it is frequent for a person not to prepare a will and rely on the provisions of the Civil Code.
A detailed list of the assets, liabilities, credits and debts of the deceased, prepared by an heir who accepts the deceased’s estate with the benefit of an inventory.
All ownership rights relating to real property in Italy are registered at the Italian lands registries, which are organised on a provincial basis and now managed as part of the provincial revenue offices (Agenzia delle Entrate). Each land registry is divided into two sections: one for the registration of title and charges, and the other for the mapping and classifying of property for tax purposes (catasto). It is also possible to carry out on-line searches to identify any property owned by the deceased.
A disposition of personal property by will. A gift of personal property or money to a beneficiary (legatee) of a will.
A person who receives personal property through a will. A person or organization receiving a gift of an object or money under the terms of the will of a person who has died.
The legal system governing the property rights of a married couple that, in some jurisdictions but not in Italy, also applies to same-sex marriages, civil unions, and common law spouses. In Italy, spouses can be in either a ‘community of property’ regime or a ‘separation of property’ regime.
Community of property between spouses (comunione dei beni) is the presumed property regime applicable to them under Italian law, unless they choose a separation of property regime. Community of property means that all property acquired by either or both of the spouses during the marriage is owned half each, irrespective of whether the property is registered in the name of one only or both spouses.
Separation of property (separazione dei beni) means that all property of the spouses is owned by them separately, with no right of ownership to the property registered in the name of the other spouse.
Is a private professional who performs public functions. In Italy, a notary is vested by the State with public authority and faith which allows him/her to prepare ‘public deeds’, such as for the sale and transfer of real property registered in public registries, or take declarations which constitute proof in certain cases. This system is widely spread around the world and has been adopted by many States, mostly belonging to the civil law tradition.
Opening of the inheritance
The opening of the inheritance coincides with the death of the deceased. The title to the property of the deceased is deemed to pass immediately at this time to the heirs, unless they renounce the inheritance (doctrine of saisine).
Representation (per stirpes)
From the Latin meaning literally ‘by branch’ which, in Italy, applies by operation of law where certain heirs who are close family predecease the testator/trix or the deceased in intestate succession, or decide not to accept the inheritance. In this case, the descendants will take the relevant quota in place of the heir who cannot or decides not to accept the inheritance.
In many jurisdictions the principle of scission applies whereby the distribution of movables upon the death of the deceased is governed either by the law of their domicile or the law of their nationality; whereas the distribution of immovables is generally governed by the law where they are situated (lex situs). The principle of unity of succession, on the other hand, is applied in Italy.
Solemn declaration (acte de notoriété)
A document prepared and authenticated by a notary based on the statements of two witnesses. It includes the civil details of the deceased person, the existence or not of a will, and details of the heirs and their respective portions. It allows heirs to demonstrate their status as heirs.
Statement of succession (dichiarazione di successione)
A document that needs to be submitted to the Italian Revenue Office within one year of the death of the deceased, stating the succession of the deceased, thus listing details of all of the deceased’s assets and heirs, attaching the deceased’s death certificate, the family certificate of the deceased person and a legalised copy of the will. Upon filing, heirs are required to pay taxes and duties relating to the inheritance and once heirs comply with this procedure, it is possible to apply for real estate properties registered in the name of the deceased to be changed in the name of heirs in the land registry.
Is the term used to mean Italian inheritance law, which is based on the Roman law tradition. Under Italian law, there are forced heirship rules for the protection of close family in the presence of a will or lifetime gifts. If the deceased dies intestate, the estate devolves to the closest surviving family in accordance with the provisions of the Civil Code.
Unity of Succession – a fundamental principle of the Italian legal system. Both in the sense that all the property and the rights of the deceased constitute a single entity passing to the heirs and in the sense that a single national law is applied to determine the succession rights of heirs and legatees even when property is situated in different jurisdictions.
Contracts whereby a person agrees to dispose of his/her estate in a particular way, or concerning rights to the inheritance of a person who has not yet died are null and void.
On 21 February 1990, Italy ratified the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their recognition. The terms of the Convention entered into force on 1 January 1992 and apply to foreign trusts with assets in Italy. The ratification of the Convention by Italy does not create a local institution of the trust in Italy (article 13, Convention) although tax laws have been introduced regulating the tax treatment of trusts.
A will is a formal legal instrument which must always be in writing. The two most common forms of will in Italy are the holographic will and the will by deed. A will by deed is made either by public instrument or a secret will. In addition to the ‘ordinary’ forms of will, there are also special wills and international wills.
The holographic will must be entirely in the testator/trix’s own handwriting, and must be dated and signed by the testator/trix. The execution of the holographic will does not need to be witnessed.
By Law 387 of 29 November 1990, Italy acceded to the 1973 Washington Convention on International Wills which empowers notaries in Italy to witness wills.
The secret will (also referred to as the ‘mystic will’) is not frequently used. This will has the most detailed requirements as to form. Briefly, the testator/trix must personally hand over to a notary, in the presence of two witnesses, a document which may already be closed, and declares that the document contains his/her will. The notary records this information directly on the document or on the envelope in which the will is placed and then sealed.
Also referred to as ‘privileged wills’, they allow the testator/trix to express his/her last wishes in certain situations when it is not possible to make an ordinary will.
Will by Way of Public Instrument
A will made by way of a public instrument is a will signed by the testator before an Italian notary and in the presence of two witnesses. Under art. 680 of the Civil Code, a will may only be subject to revocation either by means of a new will (holographic will or will by way of public instrument, according to case law the relevant content of the later will should be verified, rather than the formal instrument used) or by means of a deed, received by a notary in the presence of two witnesses, by which the testator declares personally that he intends to revoke, fully or partially, his previous will.
 Under Regulation (EU) No. 650/2012, it means succession to the estate of a deceased person and covers all forms of transfer of assets, rights and obligations by reason of death, whether by way of a voluntary transfer under a disposition of property upon death or a transfer through intestate succession.
 Please note that under Regulation (EU) No. 650/2012, a further category is that of a ‘joint will’, that is a will drawn up in one instrument by two or more persons.
This glossary has been prepared for the purposes of the International Private Client Section Conference March 2016.
à titre gracieux: a gift
à titre onéreux: a transaction for consideration (ie a sale)
abattement: “nil-rate band” or tax free allowance
acte de décès: death certificate
acte de notoriété: a deed prepared by the Notaire which sets out the family of the deceased and the beneficiaries of the estate
acte de vente: contract of sale
action en réduction: right for a reserved heir to bring an action when the deceased has gifted more than his quotité disponible
action en retranchement: right for a child of a previous marriage or relationship to make a claim against the share of the deceased’s estate being received by the surviving spouse under the matrimonial property regime, if this share exceeds the spousal quotité disponible administrateur du trust: trust administrator
agent immobilier: estate agent
apostille/apostil: legalisation certificate, required on documents signed in the presence of an English Notary Public
assurance vie: life insurance
attestation immobilère: notarial document confirming to the Land Registry in France the passage of ownership of a property belonging to a deceased person
bien meuble: movable item
bureau des hypothèques: French Land Registry
clause d’attribution intégrale de la communauté au conjoint survivant: a clause whereby the “community” assets from a communauté regime are transferred to the surviving spouse on death
clause pénale: penalty clause in sale agreement
clause suspensive: condition included in sale agreement
code civil: the French Civil Code
code général des impôts: the French Tax Code
communauté: any type of matrimonial property regime whereby there are assets held for the “community” of the couple
communauté universelle: the most community based matrimonial property regime whereby all the assets are held for the “community” of the couple
compromis de vente: sale agreement (equivalent to an English contract for sale; signing this is roughly equivalent to exchange in England)
compte bancaire: bank account
consitutant: the settlor of a trust
contrat de mariage: marriage contract
copropriétaire: member of a copropriété ; the copropriété is theway the common parts of a building such as an apartment block are held
déclarationde succession: inheritance tax form
délai de rétractation/délai de réflexion: cooling-off period
démembrement de propriété: division of full property ownership (pleine propriété) into the strands of usus (use), fructus (fruit) and abusus (abuse – ability to sell or mortgage); normally represented by usufruit and nue-propriété
dépôt de garantie: deposit payment
don manuel: a “hand to hand” gift, such as a gift of cash
donation: a lifetime gift
donation entre epoux: gift between spouses
dossier diagnostique technique: set of technical reports on the property produced by experts for the seller prior to sale
droit de préemption: pre-emption right
droits d’enregistrement: registration tax
droits de succession: inheritance tax
émoluments: notarial fees which are fixed by legislation
état civil: civil status
état hypothécaire: French land registry search
exécuteur testamentaire: person nominated to oversee the administration of an estate (this is not the same as an English executor)
forfaitmobilier: a value attributed to furniture and furnishings in the deceased’s estate (5% of the rest of the gross estate) where there has not been an inventory or a public sale
héritierréservataire: protected or reserved heirs; i.e. a portion of the estate is reserved to them
honoraires: fees for a professional; for a notaire those fees which are freely fixed
immeuble: immoveable asset, i.e. real estate
incapable: someone lacking in capacity
indivision: property held as tenants in common
légataire à titre universel: legatee of a percentage of the estate, or all or a percentage of one type of asset (moveable or immoveable)
légataire particulier: specific legatee (including a cash legacy)
légataire universel: legatee of the universality of the estate (can be more than one such)
mairie: town hall or municipal offices
majeur(e): an adult
mandataire: attorney, appointed under a power of attorney
meuble: moveable asset
meubles meublants: furniture and furnishings
mineur: a minor
notaire: French notary (lawyer qualified to deal with property transactions and inheritance matters)
nue-propriété: bare or underlying interest in property, similar to an interest in remainder; the combination of the nue-propriété and the usufruit combine to make up the pleine propriété
pleine propriété: full ownership
plus-value: capital gain
police d’assurance: insurance policy
procuration: power of attorney
promesse de vente: preliminary contract or sale agreement can be unilatérale or synallagmatique (rare); see compromis de vente
quotitédisponible: portion of a deceased’s estate over which he has freedom to distribute as he wishes
régime matrimonial: matrimonial property regime; basis on which the property of a married person is held
rente viagère: an annuity
réserve: portion of deceased’s estate which is reserved for inheritance by certain family members
salaire du conservateur: literally the salary of the Conservateur (the person running the relevant land registry), but in fact a land registry tax
séparation de biens: the matrimonial property regime whereby assets held in one spouse’s name belong only to that spouse
séquestre: money held in escrow, normally by the cashier at a notarial firm
société civile immobilière (SCI): French property owning company
taxe à la valeur ajoutée (TVA): value added tax
taxe d’habitation: annual tax payable by the person in occupation of a property on 1st January taxe de publicité foncière: land registry tax
taxe foncière: annual tax payable by the owner who owns the relevant land on 1st January testament: Will
testament authentique: Will in notarial form
testament holographe: handwritten Will
titre de propriété: title deed
tontine: clause giving rise to property being held by the owners as joint tenants
tutelle: a regime protecting a minor or an incapable adult (this is one of a variety of protection regimes)
urbanisme: local planning matters
usufruit: the right granted to someone to occupy a property ‘usus’ and receive the rents from it ‘fructus’. Similar, but not identical, to a life interest under English law
vente: sale vente en viager: a sale where the buyer pays the seller a lump sum and the remainder of the purchase price is paid by a monthly sum (known as a rent – a rente viagère) for the seller’s lifetime. There are two main types of viager, namely viager occupé and viager libre. The former is where the seller remains in the property for their lifetime (or can be let out and the seller receive the income) and the latter is where the seller vacates the property on completion.
Solicitor and Chartered Tax Adviser Sykes Anderson Perry Limited
Fernando Lacaba Sánchez,hasta el pasado mes de noviembre presidente de la Audiencia Provincial de Girona –cargo que ha ocupado durante 19 años consecutivos–, es el autor de una sentencia que va a dar mucho que hablar a partir de ahora.
¿Por qué? Porque, por primera vez en España, un tribunal –en apelación–, la Sección Primera de lo Civil de la citada Audiencia Provincial, condena a una aseguradora a indemnizar a un negocio, una pizzería, por las pérdidas sufridas durante el primer mes de confinamiento.
En el contrato suscrito no había ninguna cláusula que reflejara que por motivo de la pandemia tenía derecho a una indemnización, pero el magistrado Lacaba considera que sí.
«La cuestión a resolver es de naturaleza eminentemente jurídica y consiste en determinar si la paralización de un negocio de restauración a consecuencia de la legislación estatal dictada por la pandemia del COVID-19, está o no cubierta en el concreto seguro analizado. Se adelanta que la respuesta debe ser positiva«, dice el magistrado en la sentencia 59/2021 de 3 de febrero pasado, a la que ha tenido acceso Confilegal.
Once somebody’s death has been registered and their funeral arranged, the first thing to do is locate the person’s will (or confirm they did not make one).
If you cannot find one in their home, contact the person’s solicitor, accountant or bank to see if any of them holds it. You can check whether a will is stored with the Principal Registry of the Family Division. Ask for a search to be made of the safe custody wills register.
2. Contact banks and other financial providers
The executors named in the will, or the people who will inherit if there is no will (called intestacy), should start assembling the financial information.
You should notify banks, building societies, mortgage lenders, credit card providers and insurance companies. Your first step should be the deathnotificationservice.co.uk, which allows you to notify several banks and building societies of a person’s death at the same time.
Then go to the Tell Us Once service, which lets you report a death to most government organisations in one go. You will be able to notify HMRC, DWP, DVLA, the Passport Office and so on in a few clicks.
3. Estimate and report the estate’s value
The executor needs to assess the amount in savings accounts, pensions, shares and Isas, and whether the dead person’s employer owed them wages. Debts such as credit cards must be paid off. If the mortgage lender requires interest payments to continue while you are applying for probate, the executor can pay these bills and reclaim the money from the estate once they have obtained probate. The executor should check if there are any payouts from life insurance policies.
4. Begin the formal probate process
The executor should apply for a grant of probate, which is the legal document that enables you to access funds, sort finances and share out assets the deceased accumulated.
The government website gov.uk/applying-for-probate sets out the process and whether you actually have to go through it. According to Step, in England and Wales, there is usually no need to apply for probate if the estate is worth less than £5,000. There is an application fee of £155 for estates over the £5,000 threshold, with a £60 fee added if you apply yourself rather than via a solicitor.
Assuming you have obtained an estimate of the estate’s value, and you have the original will and death certificate, you can begin the probate process online.
5. Decide whether to use a solicitor, probate brokerage or do it yourself
My father died in February. We submitted our probate application in June but was later told that one page of the will had not been uploaded by the scanning department which is, apparently, outsourced. That single page has yet to be scanned and our probate application has stalled as a result. The contractual relationship between the probate office and the scanning provider does not appear fit for purpose, as there seems no method to escalate or expedite when its performance falls short. We accepted an offer on my father’s house yesterday. We need a grant of probate to exchange. ST, Guildford, Surrey