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.