Patrimonial Companies
The first question that we must clear up is the concept of a patrimonial company. This doubt often arises among heirs who believe that the assets of the Company, flats, apartments, parking spaces, offices, are distributed among the heirs and the properties can be distributed or awarded. This is nothing more than a product of ignorance of what a patrimonial society is, how it works and what is inherited.
Patrimonial companies do not exist as such.
The reality is that our commercial legislation does not define them, and in the commercial registry a company cannot be established as a “proprietary company”.
It is common for the testator to have provisions to maintain the patrimonial unit and to award them to children who already managed that patrimony during their lifetime. Hence the importance of always making a good will, because it saves many problems at the time of succession and, in the case of commercial companies, of maintaining the viability and existence of the company itself.
The company will continue to be managed by the administrator(s) designated and the returns will be distributed to each heir who will become a shareholder after the acceptance and award of the inheritance in the proportion that would have corresponded to them according to the value of each share, as stated. agree at the General Shareholders' Meeting on the distribution of dividends, if any.
The advantage of the Patrimonial Company is also fiscal, in the inheritance tax it is reduced by 95% as long as the patrimonial unit is maintained for a number of years (10 years on average) that will depend on each autonomous community. Be very careful when taking advantage of these bonuses, and the value given to the shares must be the real value to avoid additional settlements from the tax agency.
Regarding commercial, public or limited companies that have economic activity, we have already said that it is desirable that the testator have made a will and provisions for the distribution. For example, if any of the future heirs already managed or worked in the company, allocate the shares or participations in those companies through a bequest to those heirs and the rest of the assets, if any, to the other heirs.
Regarding the unit of familiar compannies the will and the articule 1.056.2 of our civil law prevent and solve:
The testator who, in response to the preservation of the company or in the interest of his family, wants to preserve an undivided economic exploitation or maintain control of a capital company or group of these may use the power granted in this article, providing that pay his legitimate interest in cash to the other interested parties. To this end, it will not be necessary for there to be sufficient cash in the inheritance for the payment, and it will be possible to make the payment with extrahereditary cash and establish a deferral by the testator or by the accountant-debiter designated by him, provided that this does not exceed five years. counting from the death of the testator; Any other means of extinguishing obligations may also be applicable. If the method of payment has not been established, any heir or heir may demand his legitimate interest in assets of the inheritance. The provisions of article 843 and the first paragraph of article 844 will not apply to the partition thus carried out.
All options to be established in a will.
Unfortunately, the majority of wills only contemplate the provision of distribution in equal parts between the children and the widow's usufruct, leaving the agreements for the distribution of the inheritance in the hands of the heirs, which if not reached, forces them to resort to to the courts in an irremediable and costly manner.
A good will first and then a good advice are compulsory when the inheritance is a Company.
Leocricia Gonzalez abogados.