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Whenever a person dies, his or her property becomes available to his or her legitimate heirs. Whether or not he or she made a will during his or her lifetime. However, they have the power to accept it or, failing that, to reject it if they consider that it will not bring them the benefits they expect.
In this article we want to focus on the acceptance of the inheritance, which is the most common. However, this is a process that also involves a certain complexity and generates many doubts among the beneficiaries, so our advice in this case is to seek advice from a good lawyer who is an expert in inheritance.
What is the acceptance of an inheritance?
Accepting an inheritance is a free and voluntary act through which a person who has been called to an inheritance shows his or her desire to accept it. Contrary to what happens with the distribution, with which it is often confused, it does not involve the participation of the rest of the heirs, if there are any.
Only when a person accepts the inheritance does he or she become an heir, although it is true that he or she does not yet hold title to the assets that correspond to him or her. It should be emphasised that the acceptance must always be made in full. For example, it is not possible to accept a house and reject a debt, as both are part of the estate.
How is an inheritance accepted?
Many people think that inheritances can only be accepted or rejected, but this is not the case. There are two ways to accept them, as we will see below.
In this case, the effects of the inheritance are unlimited, as the heir accepts the assets and debts of the deceased without any conditions. Moreover, he or she will be liable to creditors with his or her own assets if necessary.
This is the most common option, although it is not always the most advisable. This is mainly due to the fact that an inheritance can be accepted purely or simply by express (by expressing the will orally or in writing) or tacit (by performing acts that could not be carried out without having the status of heir).
Tacit acceptance is undoubtedly the most complex case, so let us illustrate it with an example. Let us imagine a person who uses part of the debts contracted by the deceased with capital from the inheritance. Although he has not explicitly stated that he has accepted it, it is assumed that he has done so.
Acceptance with benefit of inventory
The purpose is to limit the effects of the inheritance when it is known or suspected that the debts may be high. In this case, the heir is liable to creditors only to the extent of the estate. In this way, it is impossible for his or her assets to be compromised.
However, there are not all advantages, as resorting to acceptance with benefit of inventory has additional costs, such as, for example, the appraisal and valuation of the assets, rights and obligations of the deceased, which also delays the collection of the inheritance.
Who can accept an inheritance?
The Civil Code states that all persons with capacity to act can accept an inheritance. But what does this mean exactly? Well, in certain cases, it will be the legal representatives of the beneficiary who accept or repudiate the inheritance. This would be the case of:
- Minors subject to guardianship or parental authority. By default, the acceptance will be made for the benefit of the inventory, unless the legal representative has judicial authorisation.
- Emancipated minors. As in the previous case. However, in order to accept the inheritance purely and simply, they will only require the authorisation of their legal representatives.
- Incapacitated persons. In cases of guardianship or curatorship, the representative may accept the inheritance with benefit of inventory. In the other case, judicial authorisation will be required.
For its part, the Civil Code provides for certain special cases, for example, in the event that a spouse accepts an inheritance outright without the consent of his/her partner, the latter will not have to respond to the inheritance debts with the assets that form part of the marital partnership.
What happens if one heir accepts the inheritance and another does not?
This is a more common problem than it seems. The solution is offered by article 1005 of the Civil Code, which indicates that any person who has the condition of heir can request through a notary that the rest accept or repudiate the inheritance in the shortest possible time. To do so, they have 9 calendar days from the death of the deceased.
Once the notarial summons has been issued, the remaining heirs have 30 calendar days to express their willingness to accept or not to accept the inheritance. If they do not make any statement in this respect, it will be understood that they accept the inheritance purely and simply and will not be able to avail themselves of the advantages offered by the benefit of the inventory.
In short, the acceptance of the inheritance with or without a will has the same effects, which will depend on whether it is carried out purely and simply or with benefit of inventory. If you have any doubts, please contact us. We will be pleased to help you.
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