If you are dealing with your father’s estate while your mother is still alive it is natural to want clarity. You will want to know whether you can inherit now, what share is due to you and what your mother’s usufruct means. Here you will find what you need to understand this type of inheritance.
What you can claim as a son while your mother is alive
Your status as a forced heir remains intact. This means there is a portion of the estate reserved for son that cannot be taken away. Under the general Civil Code the estate is divided into three interlocking thirds.
- Strict legitime, which belongs to all son in equal shares and guarantees a minimum floor.
- Improvement third, also for descendants and allows the deceased to favour one or several son.
- Free disposal third, which the deceased may give to whomever they wish.
As a result, with your mother alive you keep a minimum right and you usually take part in the remainder either under the will or, if there is no will, under the rules of intestate succession.
How the estate is shared between the surviving spouse and the sons
The distribution works on two complementary planes. On the one hand, the son take the bare ownership of the assets in the estate. On the other, your mother holds a right of use and enjoyment known as a usufruct over the improvement third.
That right does not give ownership, although it does allow her to live in the family home, use the assets or receive their income. This protects family stability and balances everyone’s interests.
What share goes to the sons
Numbers help to visualise the rules. Imagine an estate worth 150.000 euros, with two sons and a surviving mother. The strict legitime totals fifty thousand euros, twenty five thousand for each son. The improvement third adds another fifty thousand and may be concentrated on one son, shared between both or directed to the descendant the deceased has chosen. The free disposal third completes the picture with a further fifty thousand that may go to any person.
If there is no will the son receive ownership in equal parts and the mother keeps her legal usufruct. In practice this means you inherit now and your mother retains the use guaranteed by law
What rights the surviving mother holds
Your mother’s usufruct allows her to use the home, enjoy the assets and receive rents or interest. To avoid friction it is common to commute that right, replacing the use with an agreed equivalent in money, with the award of a specific asset or with a periodic payment. This may feel less family minded, yet it is increasingly common because it brings clarity and peace of mind.
Differences with and without a will
With a will the wishes of the deceased lead the distribution, always respecting the son´s legitime and the surviving spouse’s usufruct. Without a will intestate succession applies and the descendants are called first, taking equal shares.
In both situations you can deal with the inheritance from the death of your father. You do not need to wait until your mother passes away. Working with a specialist inheritance solicitor helps you to list assets, value them and divide them calmly and correctly.
Representation when a son has died earlier
If a son of the deceased died before, that son’s descendants take their place through the right of representation and inherit by stirpes. In other words they receive what would have gone to their parent.
An example helps. There are three sons, one has died leaving two children. The share of the deceased son is divided between the two grandchildren in equal parts and the same approach applies to the improvement third and, where relevant, to the free disposal third.
Family home, bank accounts and the deceased’s vehicle
The home is often the centre of family concern. The bare ownership is allocated to the son while the usufruct rests with the mother, who may continue to live in the property or rent it out. If you wish to avoid an open ended right of use, commutation is a practical option because it turns a temporary right into a stable agreement.
For bank accounts the first step is to confirm the title to each balance. The second step is to apply the agreed division in line with the legal rules. Vehicles are assigned to the correct person and the change of ownership is processed using the notarial documentation, which streamlines the paperwork and avoids scattered procedures.
Steps for an inheritance with a deceased father and a surviving mother
A clear sequence makes the process easier. In our firm, when clients ask us to manage an inheritance, we follow this method.
- You obtain the death certificate and the certificate of last wills and we locate the will or, if there is none, we arrange the declaration of heirs.
- We prepare an inventory of assets and debts and assign sensible values to each item.
- We decide on the form of acceptance and, if there is significant debt, we consider acceptance with the benefit of inventory to protect your personal assets.
- We draft a clear proposal for division with plain numbers and practical solutions for your mother’s usufruct, including its commutation where appropriate.
- We sign the deed before a notary and handle registrations and changes of ownership until the matter is fully completed.
A solicitor to handle the inheritance with confidence
At López Morueco Abogados we specialise in inheritances. We review the documentation, act for you before the notary and, if the inheritance is complex, we represent you throughout. We explain your rights as an heir and propose fair, workable solutions for your mother’s usufruct and for your own position.
