Patrimonio Protegido

When there are minors or disabled people

If the minor is disabled, as with any other disabled person, a «Patrimonio Protegido» can be constituted by:

A.- The disabled person, if he or she has sufficient capacity at the time of constitution.

B.-The Parents, Tutors or legal guardians by way of gift to the disabled person.

c.-Mortis Causa, ordering in the will the constitution of a «Patrimonio Protegido» with the bequeathed assets.

Anyone can ask the disabled person, ( if he or she has sufficient capacity) or the parents or legal guardians to constitute a patrimonio protegido with the assets which are intended to be given as a gift to the disabled person.

If the parents or legal guardians do not agree, it is possible for the donor to go to a judge to have the constitution of the «Patrimonio Protegido» authorised.
This is the only case, where the court may intervene in the constitution.

The rules to be followed in the administration and the disposition of the assets as well as deciding which persons are to undertake the duties, must be established at the time of constitution.

If the patrimonio has been constituted by the disabled person, or by someone else and the disabled person is of sufficient capacity, it will not need court intervention.
Otherwise, court authorisation will be required for the disposition ( sale, mortgage) of any asset.

The destiny of the assets, once the disabled person dies, or recovers capacity, can be ordered at the time of the constitution (and from that point of view, it can work like a trust).

The parents can even leave all the assets to the disabled child, without complying with the reserved share of the siblings, ordering that at the time of death ( or the recovery of capacity ) of the disabled child ( incapacitated), the assets will go to the other forced heirs.

The key concept, disability, means that a person suffers a degree of disability equal to, or greater than 33 % if the disability is mental or psychological, or equal to, or greater than 65% if the disability is of a sensory or physical nature…. To be declared by the Spanish authority, I`m afraid.

The patrimonio protegido has tax advantages, not only regarding the gift and inheritance taxes ( the same as with all disabled people), but also regarding income tax and capital gains taxes, for both the disabled person and the donor.

Any Questions?

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