Whoever claims that the testator meant to appoint them heir even though the will uses the word “legacy” has to prove it, and whoever refuses to hand over a legacy on the grounds that debts or the forced share do not allow it has to prove that shortfall with the inventory in hand. The general rule of Spanish civil procedure is that each party bears the burden of proving the facts on which its claim rests, and in disputes between heirs and legatees that allocation decides more cases than the wording of the will. Article 668 of the Spanish Civil Code allows a disposition to operate as the appointment of an heir even if the word is not used, provided the testator’s intention in that sense is clear; that clarity must be established by the person relying on it, normally through the text of the will and its clauses read together. On the other side, an heir who withholds a bequeathed asset claiming the estate cannot cover it bears the burden of showing that the liabilities or the forced shares exhaust the estate. I explain what each figure is, how they differ and what each can do when the other does not comply.
What an heir is
Article 660 of the Civil Code calls the heir the person who succeeds by universal title, and article 659 defines the estate as all the assets, rights and obligations of a person that are not extinguished by death. The heir steps into the deceased’s position in every legal relationship, on the asset side and on the liability side. They receive a share of the estate, not a specific asset, and with that share comes the proportional part of what was owed.
That continuity has a price. Article 1003 provides that an heir who accepts the inheritance purely and simply answers for all the charges of the estate with the inherited assets and with their own. Anyone who accepts, without more, an estate with more debts than assets becomes personally liable to the deceased’s creditors. Acceptance under benefit of inventory limits that liability to the value of what is inherited, and it is the tool used to avoid that outcome when the liabilities are unclear.
There may be one heir or several, and they may be appointed in unequal shares. The person appointed to the whole estate, or to everything not distributed in legacies, is what ordinary language calls the universal heir. Where there is no will, the law fixes the heirs by order of kinship, and in that case there are no legatees, because a legacy arises only from the testator’s will.
What a legatee is
The same article 660 defines the legatee as the person who succeeds by particular title. They receive a specific asset or right, the flat on Calle Real, the bank account, a sum of money, a vehicle, and nothing more. They do not continue the deceased’s legal personality or take over their position towards third parties. Under article 668 the testator may dispose by way of inheritance or by way of legacy, and within the same will each disposition may have a different nature.
The classification does not depend on the word used. Article 768 provides that an heir appointed to a certain and determinate thing is treated as a legatee, so that someone named “heir of the house in Oleiros” is, in law, legatee of that house. The rule in article 668 that I have already mentioned operates in the opposite direction, which is why wills drafted with ambiguous labels end up in litigation over who is what.
Where the legacy concerns a specific thing owned by the testator, article 882 vests ownership in the legatee from the moment of death, together with pending fruits and rents, and also with the risk, so that if the thing deteriorates or is lost after the death the loss falls on the legatee. The acquisition of the right is immediate, although possession, as we will see, follows a different route.
The differences that decide a dispute
The differences that really matter when conflict arises are those affecting debts, possession of the assets and renunciation. The table summarises those with direct support in the Civil Code.
| Issue | Heir | Legatee |
|---|---|---|
| Title of succession | Universal, a share of the estate (art. 660 CC) | Particular, a specific asset or right (art. 660 CC) |
| Debts of the deceased | Liable, and if acceptance is pure and simple, also with their own assets (art. 1003 CC) | Not liable, unless the whole estate is distributed in legacies (art. 891 CC) or the testator imposes a charge |
| Acquisition of the asset | On acceptance, with effect from death | For a specific thing, ownership from death (art. 882 CC) |
| Possession | Held as successor of the deceased | Must be requested from the heir or executor; the legatee may not take the thing on their own authority (art. 885 CC) |
| Risk | On the estate as a whole | On the bequeathed thing from death (art. 882 CC) |
| Renunciation | Their share accrues to co-heirs or passes to intestate succession | The asset returns to the estate, unless there is a substitute or right of accretion |
As to designation, an heir may come from the will or from the law; a legatee only from the will. As to acceptance, an heir must accept, expressly or through acts implying it, and until then the estate is in abeyance; the legatee of a specific thing acquires without any formal act, although they retain the right to renounce. Possession is where the difference causes most trouble in practice. Article 885 prohibits the legatee from taking the bequeathed thing on their own authority and requires them to request delivery and possession from the heir or the executor. A legatee who changes the locks on the flat left to them is acting against the law even though the flat has been theirs since the testator’s death.
As to fruits, the legatee of a specific thing takes the rents pending from the death, whereas the heir shares in all the estate’s income in proportion to their share. And as to renunciation, the share of an heir who renounces accrues to the others or passes to whoever the law calls, whereas a renounced legacy merges back into the estate, unless the testator provided a substitute or there is a right of accretion among co-legatees.
Who pays the debts when there are legacies
The order is always the same. First the deceased’s creditors are paid, then the forced shares of the compulsory heirs are covered, and the legacies are delivered out of what remains. The legatee, as a general rule, does not answer for debts; their risk is that the estate falls short and the legacy is reduced or not paid. The heirs answer under article 1003, with all their assets if they accepted purely and simply.
There is one exception that changes the whole picture. Article 891 provides that if the entire estate is distributed in legacies, the debts and charges are apportioned among the legatees in proportion to their shares, unless the testator provided otherwise. This is what happens with wills that assign every asset to someone without appointing anyone heir to the remainder. In that case there is no heir to claim against and the legatees become the parties liable to the creditors.
The testator may also impose a specific charge on the legatee, for instance that they take over the mortgage on the bequeathed flat. If the will says nothing, the debt secured on the asset is paid by the heirs, even though the asset itself remains answerable for it to the bank.
At the firm we review the will and the inventory before the heir accepts or the legatee signs the delivery, because that is the moment when it is decided who bears what, and it is part of what we do in civil law.
Heir and legatee in the same person
Nothing prevents the testator from appointing someone heir and also leaving them a specific asset. A legacy made in favour of an heir is called a prelegacy, and its recipient a prelegatee. It is used to take an asset out of the division, so that the heir receives it whole and outside their share, without having to negotiate it with the co-heirs.
The two capacities are independent. The Civil Code expressly allows an heir who is also a legatee to renounce the inheritance and accept the legacy, or to renounce the legacy and accept the inheritance. A son may reject an insolvent estate and keep the car his father bequeathed him, because as legatee he does not answer for the debts, provided the situation in article 891 does not arise and the testator imposed no charges.
A practical example
Carmen dies in A Coruña, a widow, with two children, Marta and Andrés, and a niece, Lucía, who looked after her in her final years. Her will bequeaths the flat in Monte Alto to Lucía and appoints Marta and Andrés heirs in equal halves. On her death she also leaves an account with 60,000 euros, a car and an outstanding personal loan of 30,000 euros.
Lucía owns the flat from the day of death under article 882, and takes the rents it produces from then on, though not rents that had accrued before and were still unpaid, which the same article leaves in the estate. But she cannot move in or let it on her own initiative; she has to ask Marta and Andrés to deliver the flat, and they must do so unless they prove that the estate cannot cover the debt and the forced shares. The 30,000 euro loan is paid by Marta and Andrés out of the account; Lucía owes the bank nothing. If the siblings accept purely and simply and a debt nobody knew about surfaces later, they will answer for it with their own assets.
With a different will the outcome changes. Had Carmen bequeathed the flat to Lucía, the account to Marta and the car to Andrés without appointing an heir, the entire estate would be distributed in legacies, and the loan would be apportioned among the three under article 891. Lucía, who owed nothing under the first will, would end up liable for the largest part of the debt because the flat is the most valuable asset.
What happens if the heirs do not deliver the legacy
The legatee is entitled to demand delivery, and the heirs may refuse only for a reason they can prove, namely that the estate is insufficient to pay the creditors or that the legacy impairs the forced share. Without that proof, the refusal is a breach and the legatee may claim delivery of the asset with its fruits before the courts. They do not have to wait for the heirs to agree on the division, because their right does not depend on it.
What they cannot do is take the law into their own hands. Anyone who occupies the bequeathed asset without the delivery required by article 885 weakens their position in any later proceedings. The claim, how it is prepared and when it is best brought are the lawyer’s job.
Legacy and forced share
The testator may freely dispose only of the part of the estate that the law does not reserve to the compulsory heirs. A legacy that encroaches on the forced share is reduced, at the request of those entitled to it, to the extent that it is excessive, and that reduction can leave the legacy at a fraction of what was intended. I explain this in more detail in the article on whether you can be disinherited and the forced share. In Galicia the children’s forced share is smaller than under the Civil Code and the heirs, if they agree among themselves, may pay it in cash even if there is no cash in the estate (article 246 of Law 2/2006), which greatly lowers the risk that a legacy to an outsider ends up cut back.
Inheritance tax in each case
The legatee pays inheritance tax just as the heir does, each on the value of what they receive. The amount depends on the degree of kinship with the deceased and on the regional reductions, and in Galicia children and spouses are taxed on very different terms from a nephew or a friend. That factor, and not the label of heir or legatee, is what determines each person’s tax bill.
Legacy or heir when making a will
If you are making a will, a legacy serves to allocate a specific asset to a specific person without it entering the division, to avoid co-ownership among several children of the same home, or to benefit someone outside the family without making them heir. The appointment of an heir serves for the person who must take charge of everything, debts included, and to ensure there is always someone answerable for the whole. The usual mistake is to exhaust the estate in legacies without leaving an heir to the remainder, with the consequence in article 891 for the legatees. In Galicia there is also the option of assigning specific assets during one’s lifetime, which I explain in the article on apartación and inheritance during lifetime.
Anyone who accepts an inheritance on their own without knowing the liabilities commits their personal assets under article 1003, and anyone who signs the delivery of a legacy or renounces it without having worked out the debts and the forced shares may lose the asset or bear a part of the debts that was not theirs to bear. At the firm we examine the will and the inventory, classify each disposition and handle the acceptance, delivery or claim of the legacy as best suits the person consulting us. You can call us on +34 677 841 007 or write to us through the contact page. When you call, have to hand a copy of the will or the certificate of last wills, a list of the assets and debts you know of, and any correspondence exchanged with the other heirs or legatees.
Frequently asked questions
Does the legatee have to accept before a notary, or is the legacy acquired automatically?
If the legacy is of a specific thing owned by the testator, the legatee is the owner from the death, with no formal acceptance required. What they do need is for the heirs or the executor to deliver the thing, because the Civil Code prohibits them from taking it on their own authority. That delivery is usually documented in a notarial deed, especially where it concerns property that has to be registered.
Does the legatee answer for the deceased’s debts if the estate is insolvent?
As a general rule, no. The debts are paid by the heirs, and the legatee’s risk is that the estate falls short and the legacy is reduced or never paid. They are liable only if the entire estate has been distributed in legacies, in which case the debts are apportioned among the legatees, or if the testator expressly imposed a charge on them.
If I am both heir and legatee, can I renounce the inheritance and keep the legacy?
Yes. The Civil Code allows an heir who is also a legatee to renounce the inheritance and accept the legacy, or the reverse. It is a useful option when the estate has more debts than assets and the legacy is a specific asset, provided the testator has not distributed everything in legacies and has not made the legacy conditional on accepting the inheritance.
Do I need a lawyer to claim a legacy or to divide an estate that includes legacies?
If the heirs acknowledge the legacy, the estate has more than enough assets to cover the debts and the forced shares and everyone agrees, the delivery is settled at the notary’s office and hiring a lawyer will add little. You need one when the heirs do not deliver, when it is unclear whether liabilities exceed assets, when the will uses ambiguous labels, or when there are children who may argue that the legacy impairs their forced share. In those cases what is at stake is who pays the debts and whether the legacy is received in full, and that is not worth settling blind.