Who performs the inheritance?
two situations must be distinguished:
- If the deceased or the deceased has granted testament: In these cases, there is a possibility that the testator himself has made the partition in his will or who has designated it to a third person to perform these operations. If the testator who makes the partition, the distribution of goods you made unless this harm to be respected heirs. In the event that this partition is made by a third party, it may challenge in court if the beneficiaries are not satisfied with the assessment given to the assets or the allocation thereof.
- If the deceased or deceased has not granted testament: In these cases, if the children or heirs were older or as minors are properly represented, can distribute the inheritance among themselves as they wish. If they fail to agree they may apply to the court, who will appoint a “counter-divider” to perform the division of inheritance.
How the partition is done?
- What is the declaration of heirs?
When a person dies without a will, prior to the partition and allocation of the assets comprising the estate, you need to determine who exactly are their heirs, which is done by the “declaration of heirship”.
It can be done in two ways:
- Before the Notary of the place where the deceased had his last domicile if the heirs are the descendants, ascendants or spouse.
- Before the judge of the place where the deceased had his last domicile if the heirs are relatives or persons other than the above, for example, brothers, uncles, friends, etc.
The request for a judicial declaration of heirs is made in writing to the Courts of First Instance, attaching a death certificate, the certificate of acts of last will, the marriage certificate, documents in his case prove kinship, etc. .
It can be made by one of the heirs on behalf of all and not required (although recommended) by a lawyer when the amount of the assets of the estate does not exceed a specified financial limit. These procedures should always intervene the prosecution.
Resolution (an “auto”) to end the procedure will decide on who are the heirs of the deceased and allow to carry out the partition and award of inheritance.
- The preparatory work: The dissolution of the conjugal partnership and collation
With the death of one spouse also occurs the dissolution of Economic matrimonial regime so, before proceeding to the division of the inheritance, you need to determine what assets comprise the assets of which the widower of the deceased.
Usually it has done by public deed before a notary and may be challenged by the heirs if the liquidation of the matrimonial regime harms its legitimate.
For its part, and unless it is stated otherwise, it is understood that donations made in life by parents to children, pose a preview of its share in the inheritance, so that the value of the already received must be subtracted the quota that applies to you after the partition.
It is what is technically known as the “collation of inheritance”. For example, if the father donated living one floor to one of his sons, when you die that other children may require that “Readback”, that is, compute as part of the heritage of the favored son.
Here too we must distinguish two situations:
- Whether there as if there is no will, if beneficiaries reach an agreement to divide the inheritance (the so-called “relict flow”), the partition and allocation of goods may be made before a notary. Scripture in stating the Partitional operations do contain the description of the goods that make up the heritage, its value, the declaration of heirs, that is, who are the heirs, who share it behoves each inheritance, what assets are attributed to fee payment and compliance with it. Scripture alluded to above, called “partition and adjudication of inheritance” will allow the recipient to change in their favour the ownership of real estate (apartments, farms, etc.) in the Land Registry, although previously must liquidate inheritance tax and donations, the tax on the increase in value of urban property or “surplus value”.
- If there is no agreement among the beneficiaries of the estate, regardless of whether or not a will, the partition will take place or may be challenged in court. To do this, as in all cases where you have to go to court, it is desirable to seek the services of a lawyer.
- Court proceedings
Any heir or legatee may request the division of the inheritance provided that it may not be completed by person designated by the deceased in the will or in this document recipients are required for the conduct of mutual agreement. In such cases, you must wait for the partition is made to challenge it.
The judicial procedure for requesting the division of inheritance begins with a demand that must be signed by Barrister and Solicitor and which must be accompanied by a death certificate, the certificate of the Registry of Last Will (Ministry of Justice) in which stating that the deceased will not granted and the certificate that the applicant has provided inherit or legate as well as the documentation relating to the goods that make up the inheritance.
Once requested division, and where necessary, may agree to intervene goods inventory and training, as well as the appointment of a person responsible for administering them.
The heirs will be summoned to a board, which was also attended by the prosecutor if any of the heirs is minor or incompetent or has been declared absent and still he has not appointed its representative.
At this meeting stakeholders should agree to appoint a “counter-divider” who practices division operations as well as those experts necessary to evaluate and assess the goods.
If no agreement is reached, you will be chosen by lot (the charge of counter-divider should be on a practicing lawyer).
The counter-divider is the person performing the dividing operations and is obliged to respect, if any, rules for the valuation of assets that have been imposed by the testator, provided they do not harm the legitimate the heirs.
Division operations have a maximum duration of 2 months.
The report issued by the counter-divider must contain a list of goods that make up the inheritance, its valuation, division practiced by them and their attribution to each of the heirs.
These operations will be communicated to all parties involved in the process so that if they are not satisfied, can oppose them within ten days. This opposition must be in writing.
Here again they raised two possibilities:
- If no opposition is made The judge will issue a decision (an “auto”) by which the dividing operations will be approved.
- If opposition is formulated The judge shall summon the parties to a new hearing in which the reasons for such opposition will be presented and where you can even remember the practice of any evidence (for example, the heirs disagree with the assessment that has been given goods and a new appraisal) is requested.
The procedure will from now as a Verbal judgment.
Once the partition has been made and the award, each heir acquires ownership and possession of the goods to be granted.
The court decision is issued where appropriate, allow the beneficiary to change in their favour the ownership of real estate in the Land Registry, although previously must liquidate inheritance tax and donations, the tax on the increase in value of urban property or goodwill.
Who pays the expenses of the partition?
It is always desirable to obtain the advice of an attorney in any succession matter, and especially on whether and how to bring appropriate legal action.
The expenses of the partition have been made for the benefit of all heirs will be in charge of the “mutagenicity” (all the assets of the deceased) and those that benefit one of them, will be responsible exclusively.
And the debts of the inheritance?
If creditors are identified in the will, they are recognized by the heirs, or have in their possession an enforceable (bill of exchange, check a final judgment … etc.) can oppose the partition of the inheritance until they pay or secure in the payment of their claims, but can not request that the judicial division of assets that make up the inheritance is practiced.
However, creditors may exercise other legal action against the hereditary community or heirs in court as appropriate, without these actions suspend the procedure for judicial division of the inheritance.
After the partition, the creditors may demand payment of debts, up to the amount of assets allocated to each heir if the inheritance accepted benefit of inventory, or until the limit of total debt, if not It was done in this way.
So, to the heir not have to respond with their property for the debts of the deceased, the law provides for the possibility of accepting the inheritance “benefit of inventory”, in which case the heir is only liable for the debts of the deceased far cover the assets of the estate and only acquire the assets remaining in the estate once they have paid all debts.
The benefit of inventory request must meet certain formalities and can also be lost.
For its part, the heir who had paid more debt amount which corresponds to their share in inheritance, others can claim this excess.
If one of the heirs is also a creditor of the deceased, others can claim that he paid the outstanding credit in your favour, also reducing its part, the fee that corresponds debt.
If creditors are what one or more of the heirs may intervene in the allocation of assets to prevent fraud made in their interests.
You can be sold inheritance rights?
Often it thinks that once dead the owner of a particular asset (eg, an apartment, a car, etc.), your heirs may proceed to sell to a third party immediately.
Well, the thing is not so simple, as the heir cannot sell the assets that make up the inheritance until they are not awarded expressly and formal, well after the processing of judicial proceedings, either through writing partition and adjudication of inheritance granted before Notary.
Therefore, the goods do not belong and cannot dispose of them until adjudication, even if it is the sole heir.
Thus the / heirs may sell only inheritance rights due to them or may correspond inheritance, but not the assets that compose it and where such rights are realized. These goods shall pass to the buyer when finally awarded to the beneficiary-seller.
If there are several heirs, the interested in selling their rights to inheritance should tell the rest of his intention, so that they can be subrogated in the buyer’s position and instead acquire such rights, upon payment of the price has been agreed.
How you could void the partition?
The partition may be rescinded (cancelled) for the same reasons that any type of contract, that is, when you do not have enough capacity or going against the law.
Also, when there is damage or injury to any of the beneficiaries of it, considering that there is this prejudice if, between the value of goods that have been allocated and the value of foreclosed the rest, there is a difference of more than one 25% of the value of the first.
However, the partition that the deceased had made himself in his will not be challenged by an injury unless the harm legitimate heirs or may be derived in any way that the testator was different from what then was recorded in the will.
The heir who intends to terminate the partition by the damage or injury has been caused, it has 4 years and must do so through the appropriate legal proceedings.
For its part, the defendants heirs may choose to indemnify the heir for the damage that has been caused or make a new partition of the assets that make up the inheritance.
The court action for rescission of the inheritance cannot exercise it the heir who had sold all or much of the property that he had been awarded.
What if all assets of the deceased are not included in the partition?
It may happen that after the partition, new property in the name of the deceased appear.
In these cases, the partition is not cancelled, but the goods are “added” to the already done, that is, a new division of property that have appeared is performed.
And if not all heirs in the partition?
In the first case, if omitted any of the heirs without malice, the partition is not cancelled, but the rest of the beneficiaries shall give the excluded the part that corresponds in inheritance.
However, if the partition was considered as heir someone who really should not be, the partition will be void.
Can the heir renounce the inheritance?
The heir may renounce the inheritance. In this case the waiver shall always be express in public document before a notary or in writing before the judge if there has been no litigation or will.
If when the heir renounces the inheritance attend other heirs, they will have the so-called “right of accretion”, that is, the portion to which the heir has renounced is distributed proportionately among those who have accepted the inheritance.
What happens when the heir to renounce the inheritance hurts your creditors?
Sometimes it happens that the beneficiary of an estate decides to withdraw it not be obliged to deliver the goods awarded to creditors in payment of outstanding debts, what happens, for example, when someone declared insolvent receives goods from an inheritance, and its creditors learn.
In this case, if the “morose” renounces the heritage, you will be hurting your creditors, so the law allows them to legally oppose the waiver.
However, creditors will not have any rights to the remaining portion of the hereditary debts once paid.
In any case, it is always desirable, if not essential, to have the professional advice from a lawyer before making any successor performance.