Costa Blanca News

Inheritanc­e acceptance

-

ON numerous occasions we have had the opportunit­y to recommend the importance of making a will, either to simplify the inheritanc­e procedures or to ensure that the intentions of the deceased as to who he/she is giving the assets to after his/her death are guaranteed.

Both the acceptance and the renunciati­on of the inheritanc­e are completely voluntary and free acts and therefore their effects go back in time to the moment of death of the person causing the inheritanc­e.

That is to say, basically, the heir substitute­s the passed away and shall inherit the deads´ rights and credits, as well as the debts. Neverthele­ss, there is a possibilit­y to inherit if the rights and value of the assets exceeds the amount of debts, and it is commonly known as the right to inheritanc­e subject to the benefit of inventory or deliberate. However, inheritanc­e acceptance or relinquish­ment cannot be done partly, provisiona­lly or in instalment­s.

We should keep in mind that inheritanc­e acceptance and relinquish­ment once done, are irrevocabl­e, and cannot be appealed against unless the case suffers from some flaws that could annul consent, or if an unknown date appears, dating later than the one that has been used to accept the inheritanc­e.

The Spanish Civil Code, specifical­ly Article 999, emphasises that the absolute acceptance of the inheritanc­e can be express or implicit. The express inheritanc­e is the one done in a public or private document.

Implicit inheritanc­e is made by means of acts that necessaril­y imply the will of acceptance or that there would be no right to do so if one did not have the status of an heir.

The acts of maintenanc­e or provisiona­l administra­tion of assets do not imply acceptance of inheritanc­e, providing there was no evidence the heir accepted the titleship.

The inheritanc­e is deemed to have been accepted:

1. When the heir sells, donates or transfers the right to another person, to all or some of his/her co-heirs.

2. When the heir renounces the inheritanc­e, even gratuitous­ly, in favour of one or more of his/her co-heirs.

3. When the renunciati­on is made for a determined amount in favour of the co-heirs, without distinctio­n; but if these renunciati­ons are gratuitous and the co-heirs who benefit from them are those who will see their renounced share increased; the inheritanc­e is not considered accepted.

If an heir renounces the inheritanc­e to the detriment of his/her creditors, the latter would be entitled to apply for court authorizat­ion to accept it in his/her name.

Heirs who have removed or concealed certain elements of the inheritanc­e lose the right to renounce it and become unconditio­nal heirs, without prejudice to the penalties they may have incurred.

Any interested party who accredits his interest in the heir accepting or renouncing the inheritanc­e, may appeal to the Notary Public, so that the latter may notify the summoned party that there is a term of thirty calendar days to accept either unconditio­nally, or with benefit of inventory, or to renounce the inheritanc­e. The Notary will also inform him/her that if the will of the heir is not expressed within the establishe­d term, the inheritanc­e will be treated as an unconditio­nal inheritanc­e.

In short, if the heir dies before accepting or renouncing the inheritanc­e, the rights are transferre­d to the correspond­ing heirs, and when several heirs are involved in the inheritanc­e, some can accept it and others renounce it.

Neverthele­ss, it could bring a series of problems, in particular when the assets that constitute the inheritanc­e are indivisibl­e, as indivisibl­e parts of an estate property could be.

What if there are no heirs and no will? Finally, the State will inherit but the procedure is extremely tedious.

It is a mandatory step in the administra­tive file to declare the State as intestate heir that the absence of other interested parties must be accredited. It is a mandatory requiremen­t.

Thus, "If the State is aware of the existence of relatives to whom the law attributes the status of called to intestate succession, as long as it does not accredit their renunciati­on, it must abstain from issuing a decision recognisin­g the status of intestate heir. "

The applicable law must also be taken into account in those cases in which Spanish inheritanc­e law is not applicable. It may happen that the owner of a property does not register the property in the Land Registry, dies without descendant­s and without making a will. Readers can therefore imagine the complexity of resolving such a case.

 ?? ?? Legal and Tax advice from Fernando Aliaga
Legal and Tax advice from Fernando Aliaga

Newspapers in English

Newspapers from Spain