PRACTICAL ISSUES REGARDING INHERITANCE

ACCEPTANCE OF AN INHERITANCE AS A PREREQUISITE TO THE PARTITION AND DISTRIBUTION OF THE ESTATE

Articles 988 and following of the Civil Code govern the process of accepting an inheritance as a prerequisite for its division. It is clear that an heir who does not wish to participate in the distribution of assets or acquire them must renounce or disclaim the inheritance. The refusal to accept the inheritance must be explicit, and this is a very important point to note.

VOLUNTARY ACCEPTANCE OF AN INHERITANCE

Article 988 of the Civil Code provides that both acceptance and repudiation are entirely free and voluntary acts. Once made, they are irreversible and irrevocable. It is important to distinguish between pure and simple acceptance and acceptance subject to inventory.

The difference is crucial. With unconditional acceptance, the heir is liable for all the debts and obligations associated with the estate. This liability extends to both the inherited assets and the heir’s personal assets.

On the other hand, acceptance with the benefit of inventory limits the heir’s liability to the value of the inherited assets. Thus, the heir’s personal assets are not commingled with or affected by the debts of the estate.

ACCEPTANCE OF AN INHERITANCE BY VIRTUE OF LAW

The actions taken by an heir following the decedent’s death are crucial for the other heirs. Often, some heirs do not act immediately and may even use the assets for various reasons, such as waiting for the statute of limitations on tax payments to expire or due to a lack of financial resources to carry out the necessary procedures, preferring to postpone the decision regarding the disposition of the assets.

This requires unanimity among the heirs and a convergence of interests that often does not exist. If an heir neither accepts nor renounces the inheritance, it forces the others to take action to determine not only how to distribute the inheritance, but also among whom it should be distributed. Therefore, it is necessary to require the heir to decide whether to accept or renounce the inheritance.

The Section 1005 from the CC provides that any interested party who can demonstrate an interest in the heir accepting or renouncing the inheritance may apply to the notary, who shall then notify the heir that he or she has a period of thirty calendar days to accept the inheritance outright or subject to inventory, or to renounce the inheritance, and that if the heir does not express their intention within that period, the inheritance shall be deemed to have been accepted outright.

You must be very careful if you are served with such a summons, as failure to respond will deprive you of the opportunity to accept the estate subject to inventory, and may result in you being held liable for the deceased’s debts with all your present and future assets.

THE DIVISION OF THE ESTATE AS THE NEXT STEP

Once the inheritance has been accepted, the next step is the division of the assets, which can be carried out either through a notary if the parties agree, or through the courts if there are any disagreements.

When dividing the estate, the testator’s expressed wishes as set forth in the will must be taken into account and strictly followed; therefore, if criteria for division, distribution, and bequests have been established, the testator’s wishes must be upheld.

If an executor has been appointed, it is clear that that person will be responsible for the distribution of the estate and all related procedures.

If there is no specific provision in the will and the heirs cannot reach an agreement, they may appoint a partitioner through a notary. This professional will be responsible for overseeing the division of the estate at the notary’s office, carrying out the testator’s wishes and settling the estate’s debts.

Our advice is to always have a trusted attorney representing all the heirs, who will handle the distribution and division of the assets before a notary. Since taxes must be paid, the process will be based on the assets’ tax values and their market values. Professional expertise will make it easier to reach agreements at a significantly lower cost than if other professionals were involved.

In addition, the attorney will handle all the paperwork at the notary’s office from the start, so that clients only need to show up to sign.

CONSEQUENCES OF FAILING TO REACH A PARTITION AGREEMENT

This is the worst-case scenario, as it requires going to court to initiate a judicial division of the estate, as provided for in Articles 782 through 805 of the Civil Procedure Act.

In this case, all interested parties must appoint an attorney and a legal representative to appear in the proceedings and defend their rights. In addition, the court will appoint an expert to conduct appraisals of real estate or other assets, as well as a partitioner.

Based on the appraisals, he will determine the final value of the estate and make the appropriate distributions to the heirs.

In addition to the financial cost of hiring the necessary professionals—such as an attorney and a legal representative for each party—the time required for legal proceedings causes undesirable delays. This runs counter to the interests of all parties involved. For this reason, our law firm has always sought to prevent this from happening.

These are complicated issues because personal, financial, and family interests are intertwined; naturally, and unfortunately, they often don't go well together.