It is the notarial document through which the heirs of a deceased person formally accept their inheritance and proceed to the corresponding distribution among them. Thus, they become the new owners of all the assets and rights of the deceased person's estate.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
As has already been pointed out in the analysis of the other inheritance law institutions, the first and perhaps the main basic issue to be taken into account is that the death of persons is a natural fact, an immutable and inevitable biological reality that reaches all human beings, since all of us, sooner or later, die.
This reality, beyond the pain and sorrow that it generates in all the relatives and loved ones of the deceased person, generates a series of consequences in the patrimonial sphere of the persons that it is necessary to order and resolve, since every human being, when he/she dies, to a greater or lesser extent, has a series of assets, rights and obligations whose owner has passed on. Logically, the new ownership of all these assets, rights and obligations must be determined, as this is necessary to ensure legal certainty, the conservation and preservation of such assets, rights and obligations and the value they treasure, as well as the continuation of the activities and legal relationships that derive from such assets and that provide value and wealth to society.
On this basis, the Spanish legislator, being aware of the transcendence that these situations generate in the life and death of persons, has established a set of legal rules that regulate the succession of persons, that is to say, the set of rules that should regulate how the new ownership of the assets, rights and obligations of a person is determined when he/she dies. Currently, these rules can be found in Title III of Book III of the Civil Code, which covers a large number of precepts (which in itself denotes the importance of the matter), specifically, Articles 657 to 1,087.
Likewise, all these state regulations are supplemented by the provisions of the foral or autonomous civil law of certain autonomous communities, which have their own civil law on this matter that will be applicable to all persons whose civil status so determines.
Throughout the study of the inheritance law institutions analyzed so far, readers will have learned about the main characteristics of the different inheritance titles, i.e., the different ways in which the new ownership of the assets, rights and obligations of a deceased person can be determined.
At this point, and once it has been determined to which specific persons correspond the inheritance rights of the deceased person, it is time to analyze and study the main characteristics of the instruments that will allow these persons, called heirs or legatees as we have already seen, to effectively become the new owners of the estate of the deceased person, being already to all effects and purposes the new owners of the assets, rights and obligations of the inheritance.
It is therefore within the framework of these instruments that the deed of acceptance and partition of inheritance can be included, by virtue of which the heirs designated in the aforementioned deeds appear before a Notary Public with the purpose of formally and unequivocally expressing their will to become the new owners of the estate of the deceased person who caused the succession. Thus, by means of this public instrument, every legitimated person will be able, in a definitive manner, to formally assume the ownership of the assets, rights and obligations that correspond to him/her of the inheritance, given his/her condition of heir.
As has just been pointed out in the preceding question, by means of the deed of acceptance and partition of inheritance, the heirs or legatees of the inheritance will first manifest, in a formal and solemn manner, their will to become the new owners of the estate of the deceased person causing the succession, in order to, subsequently, to distribute among them said patrimony in the portion that corresponds to each one, all this by virtue of the dispositions that to such effect the deceased had established in his will or succession agreement or, in its absence, of the norms established for such purpose for the cases of intestate succession.
That said, in relation to the acceptance of inheritance, it is worth highlighting the following main issues that users should be aware of:
In the first place, it is undoubtedly necessary to be very clear that the acceptance of the inheritance (or in its absence the repudiation or renunciation of the same, institution to which another section is dedicated to the effect that you can consult) is an entirely voluntary and free act. This implies that this will to become the new owner of the assets, rights and obligations of the deceased is an act completely subject to the free will of the heirs and/or legatees, who, in each specific case, must evaluate the patrimonial situation of the deceased or other moral considerations to determine whether they wish to become the new owners of these assets, rights and obligations formerly belonging to the deceased person who caused the succession. Thus, any person, in principle (with some exceptions that will be discussed), when designated as heir or legatee of another, upon the death of the latter, may decide whether or not to accept his or her inheritance.
Likewise, it is necessary to take into account that the effects of the acceptance of the inheritance are always retroactive to the moment of the death of the person to whom they are inherited, so that through this legal fiction a continuity in the ownership of all the assets, rights and obligations of the deceased is achieved, since this allows that at no time these have experienced a situation of vacancy in their ownership, dissipating the doubts that this situation could create around said patrimony.
Having said this, it is also necessary to take into account that the acceptance of the inheritance (or in its case, the repudiation or renunciation of the same), cannot be made in part, in installments, or conditionally, so that when a person accepts an inheritance he/she will do so with all its consequences, assuming all the assets, rights and obligations of the same, without it being possible to select which specific assets one wishes to inherit (for example, it is not possible to pretend to inherit a very valuable real estate of the inheritance free of encumbrances, and not the rest of the assets of the same of lesser value and/or subject to encumbrances or liens such as mortgages), nor to subject such acceptance to a term or condition (as for example, to pretend to accept an inheritance and that this takes effect after one year).
In another order of things, and as it is logical, to be able to accept the inheritance (and, in its case, to repudiate it) it is necessary that absolute certainty exists on the fact of the death of the deceased, as well as the own right to the inheritance, so that in any deed of acceptance of inheritance it will be necessary to prove reliably both the death of the deceased and the condition of heir or legatee of the grantors, presenting for such purpose the corresponding death certificate (or, if applicable, the testimony of the final sentence of declaration of death) and the inheritance titles that may exist.
Likewise, those interested in granting a deed of acceptance and participation of inheritance must keep in mind that once made, it is irrevocable, so that once the public instrument has been granted, its effects cannot be annulled, except in cases of vices of consent (i.e., error, violence, intimidation or fraud) or if an unknown will appears that would invalidate the acceptance that has taken place.
<ejemplo>Así pues, por ejemplo, si se acepta una herencia consistente en un inmueble, creyendo que su potencial de revalorización es muy elevado, y una vez aceptada, el nuevo propietario se percata de que éste no es tal y de que el coste de mantenimiento del mismo es muy elevado, éste no podrá luego renunciar a la herencia, sino que deberá asumir las consecuencias del acto de aceptación, integrando dicho inmueble en su patrimonio y gestionándolo como mejor sepa o pueda.<ejemplo>
As a last issue to highlight in the generic scope of the acceptance of inheritance, those interested in it should also know that the heirs who have stolen or hidden effects of the inheritance (that is to say, goods or rights that could increase the patrimonial mass of the same), lose the power to renounce to it, so that they will remain with the character of pure and simple heirs, without prejudice logically of the penalties in which they could have incurred for this fraudulent or disloyal conduct.
<ejemplo>A modo de ejemplo, en el supuesto de que un coheredero ocultare al resto la existencia de una joya de elevado valor del causante, y ello fuere descubierto por el resto, este heredero perderá luego el derecho a renunciar a la herencia, de modo que deberá aceptarla con todas las consecuencias que ello pueda comportar para su patrimonio, por ejemplo en caso de que se tratare de una herencia dañosa (es decir, en la que las cargas u obligaciones sean mayores que el valor de los bienes y derechos de la misma).<ejemplo>
As already indicated in previous questions, the acceptance of the inheritance implies a subrogation of the heir or legatee in the former position of the deceased, since he/she becomes the new owner of all (or those corresponding to him/her) of the assets, rights and obligations of the deceased person whose succession is involved.
This particularity must be kept in mind, since when an inheritance is accepted (unless it is done for the benefit of inventory, a possibility that will be explained below), the heir is liable for all the burdens of the inheritance, not only with the assets of the inheritance, but also with his or her own assets. Thus, when the inheritance is accepted, all the assets of the deceased will be integrated in the assets of the heir, so that the latter will benefit from the increase in assets that such assets or rights generate, but he may also be harmed by the losses derived from the burdens or obligations of the inheritance, which he will have to face not only with the assets of the inheritance, but also with all his own assets.
This is a circumstance to take into account when there are reasonable doubts about the value of the assets and rights of the inheritance in relation to the charges or obligations that these may entail, since the acceptance of the inheritance may become a negative fact in the patrimony of the heir or legatee, generating an impairment that erodes it.
Inheritances can be accepted purely and simply or also with benefit of inventory.
Given the complexity and differentiating characteristics of the second modality, a specific question will be dedicated to it below, but in general terms, the interested parties should know that by means of the pure and simple acceptance, the heir becomes the new owner of all the assets, rights and obligations of the deceased, taking into account that with respect to the obligations and debts he/she will respond both with the assets of the inheritance and with his/her own patrimony. On the contrary, by means of the acceptance with benefit of inventory, the heir obtains that in case there are debts or other charges in the inheritance, these can only be satisfied with the goods and rights of the inheritance and up to the extent of these.
Having made this first differentiation (to which more depth is given in the subsequent question), it is also necessary to take into account that, in turn, the pure and simple acceptance can be either express or tacit, being the express one that is made in a public or private document, and the tacit one that is made by acts that necessarily assume the will to accept, or that there would be no right to execute but with the quality of heir.
Thus, the pure and simple inheritance can be channeled through two main ways, such as the express way, which implies a formalized and regulated way that is embodied in a document (which may be public, that is, by means of a deed, or private), or the tacit way, known as de facto way by virtue of which, the heir, through his own acts, allows inferring in a clear and unequivocal way that his will is to accept the inheritance. Typical cases of tacit acceptance of inheritance are such as when the heir sells, donates or assigns his right to a third party, to all his co-heirs or to some of them; or when the heir renounces the inheritance, even gratuitously, for the benefit of one or more of his co-heirs.
The acceptance of the inheritance with benefit of inventory is a legal figure that is mainly used in those cases in which there are reasonable doubts as to whether the liabilities of the inheritance will exceed the assets. In order to avoid that such circumstance may have a negative impact on the heir's estate, this figure allows to protect such estate, broadly speaking, by preventing the debts or credits of the inheritance from being satisfied with assets and rights of the heir's estate, so that these can only be satisfied with assets and rights of the inheritance itself.
The right to accept an inheritance with benefit of inventory may be exercised by any heir, even if prohibited by the testator, and may only be exercised before a Notary Public. When an heir intends to exercise his right to accept an inheritance with benefit of inventory, a faithful and exact inventory of all the assets of the inheritance must be made, detailing all the assets, rights and obligations of the inheritance, as well as their economic valuation.
If the rules of Catalan civil law apply, the inheritance may be accepted with benefit of inventory, provided that an inventory of the inheritance is taken (Articles 461-14 to 461-16 of the Civil Code of Catalonia). Said inventory, which must be made within six months (counting from the moment in which the heir knows or can reasonably know the delation), will be formalized before a Notary Public or in writing addressed to the competent Judge and will include all the relict assets (without the need to value them), and the debts and hereditary charges, with indication of their amount.
In case of opting for this way (Article 461-20 of the Civil Code of Catalonia), that is to say, the acceptance with benefit of inventory, it is necessary to specify that:
On the other hand, if the rules of common law are applicable, it is necessary to indicate that the following issues must be taken into account:
In any case, once the right of acceptance of the inheritance with benefit of inventory has been exercised, this shall begin within thirty days after the creditors and legatees have been summoned and shall conclude within the following sixty days, unless there are exceptional circumstances (for example, a large number of assets), in which case the Notary may extend said term for as long as he deems necessary, without exceeding one year.
Regarding the main effects of the acceptance of the inheritance with benefit of inventory, article 1.023 of the Civil Code establishes that:
However, it is also necessary to take into account that the heir will lose the benefit of the inventory (Article 1024 of the Civil Code):
Finally, once the inventory has been drawn up, the creditors' claims will be satisfied and the legacies paid, after which the heir will have full enjoyment of the remainder of the inheritance (if any). On the other hand, if the inherited assets are not sufficient to pay the debts and legacies, the administrator of the inheritance will give an account of his administration to the creditors and legatees who have not been paid in full, being liable for the damages he may have caused to the inheritance due to fault or negligence.
As regards the persons who may grant the deed of acceptance and partition of inheritance, first of all, as it cannot be otherwise, it is necessary that they are entitled to do so, which will happen when they have been designated as heirs by virtue of any inheritance title.
Having said this, as regards the capacity of such grantors, it is necessary to take into account that all those who have the free disposition of their assets may accept or repudiate an inheritance, which is equivalent to the full capacity to act that is reached at the age of majority, i.e., at eighteen years of age.
Therefore, individuals who are not in such situation, such as minors, may accept an inheritance being duly represented by the holders of parental authority. In the case of incapacitated persons, it is necessary to take into account that the guardian will need judicial authorization to accept any inheritance.
In relation to natural persons, it is necessary to point out, finally:
Finally, it should be noted that when the designated heirs or legatees are not natural persons, but associations, foundations or corporations capable of acquiring inheritances, their legitimate representatives may accept the inheritance, but to repudiate them they will require judicial approval with the hearing of the Public Prosecutor's Office. As regards public administrations, they may only accept or repudiate inheritances with the prior approval of the Government.
Occasionally, certain persons who have significant liabilities, i.e., debts with third parties of a high amount that they cannot meet with their capacity to generate recurring income or with their assets, when they are designated as heirs or legatees in an inheritance, may be tempted to repudiate the inheritance, in order to prevent the inherited assets or rights from becoming part of their assets, so that they can be attacked by these creditors to satisfy their claims.
This disloyal attitude towards his creditors finds a brake in the law, by virtue of which, if an heir repudiates the inheritance to the detriment of his creditors, the latter may request the Judge to authorize them to accept it on his behalf. In such a case, the acceptance will only benefit the creditors to the extent that it is sufficient to cover the amount of their claims, but if there is an excess (i.e., a remainder after the liquidation of these debts), the same will not be assigned to the renouncing party in any case, but will be awarded to the persons to whom it corresponds according to the inheritance regulations.
As indicated above, the acceptance of the inheritance is a completely free and voluntary act, which depends exclusively on the will of each of the heirs.
This general principle is expressly stated in the civil law, which establishes that when there are several heirs called to the inheritance, some may accept it and the others may renounce it. Likewise, each one of the heirs will also be completely free to accept it purely or simply or with benefit of inventory.
Traditionally, there has been much controversy and litigation in those situations in which, when there are several co-heirs, some of them do not decide whether they really want to accept or renounce the inheritance to which they have been called, since the portion that corresponds to each of the co-heirs may logically depend on this.
If the rules of common law are applicable, the principle established by Article 1004 of the Civil Code must be applied in this matter, by virtue of which, until nine days after the death of the deceased, no action may be brought against the heir for acceptance or repudiation.
Once this short period of time has elapsed, the co-heirs may execute the corresponding deed of acceptance of inheritance, for which they will need to know if all of them wish to accept or renounce the inheritance. However, it can happen, as already indicated, that some of these heirs do not decide on the matter, which can undoubtedly be detrimental to the rest of the co-heirs.
In order to prevent this type of situation from being prolonged over time, the legal system has created for this purpose the figure traditionally known as interpellatio in iure or hereditary interpellation, currently regulated in article 1.005 of the Civil Code. Thus, by virtue of the same one, any interested party that accredits its interest in that the heir accepts or repudiates the inheritance (here mainly, the rest of co-heirs or those that could become heirs thanks to the renunciation of the former), will be able to go to the Notary so that this one communicates to the called one that has a term of thirty calendar days to accept pure and simply, or with benefit of inventory, or to repudiate the inheritance.
This interpellation (which traditionally was of judicial competence, but by virtue of Law 15/2015, of Voluntary Jurisdiction has been assigned to the body of Notaries) will be made by notarial act, in which it will be indicated that if their will is not manifested in said term, it will be understood that the inheritance is accepted pure and simple.
Thus, the challenged heir will have the indicated term to express his will, and his silence or non-response will be interpreted as positive, since, as has just been commented, this will be equivalent to a pure and simple acceptance of the inheritance, with all the effects that this may entail, to which reference has already been made in previous questions.
On the other hand, in the scope of the Catalan Civil Law, it is necessary to indicate that in the event of proceeding to the hereditary interpellation (in which the term will be of two months), the silence to the transferred request will be understood as negative, since in such case it will be understood that the heir repudiates the inheritance, unless it is a minor or an incapable person, in which case it will be understood that he accepts it for the benefit of inventory (Article 461-12.2 and 3 of the Civil Code of Catalonia).
In the deed of acceptance and partition of inheritance, the heirs and legatees must describe the entire estate, i.e., all the assets, rights and obligations formerly owned by the deceased person whose succession is the cause of the inheritance.
Thus, the deed must identify all these assets and liabilities, which may be of every conceivable type and condition, such as real estate, financial assets, demand deposits, vehicles, shares or equity, loans and credits, etc.
In said deed, an economic valuation of all of them will be made, proceeding to obtain a joint value of the inheritance, adding all the assets of the inheritance and subtracting the value of its liabilities, which will be known as the total value of the estate or relict estate.
As already mentioned above, by means of the partition of the inheritance, the co-heirs of the inheritance will proceed to distribute among themselves the hereditary mass or estate, assigning to each one of them the assets, rights and obligations or the portion of the same that correspond to them, according to the provisions of the corresponding inheritance title from which their condition of heir or legatee derives.
In relation to the partition of the inheritance, the first question to be addressed is to understand who can request it. This answer is provided by civil law, which establishes that no co-heir may be obliged to remain in the indivision of the inheritance, unless the testator expressly forbids it.
Thus, any co-heir who has free administration and disposition of his property may at any time request the partition of the inheritance, while for the incapable and the absent, it must be requested by their legitimate representatives.
Likewise, as more specific questions in relation to the legal standing to request the partition of the inheritance, it is worth mentioning:
Of the different ways in which the partition of the inheritance can proceed, that is to say, in what way it will be determined which assets or portion of them corresponds to each one of the co-heirs, undoubtedly, in the first place, it is necessary to resort to the dispositions of the deceased himself, whose death brings to reason the inheritance.
This is so established by law, since the same provides that when the testator makes, by inter vivos act or by last will, the partition of his property, it will be passed by it, insofar as it does not prejudice the legitimate rights of the forced heirs.
The second option offered by the law in this sense (when the testator has not provided the way in which his inheritance should be distributed) is to resort to the figure of the accountant-partidor, who will be the person who will be responsible for determining which assets, rights and specific obligations are awarded to each co-heir. This is provided for by law when determining that the testator may entrust by inter vivos or mortis causa act, for after his death, the simple power to make the partition to any person other than one of the co-heirs. Furthermore, if the will has not designated this accountant-partidor, or if the position is vacant (for example, because the designated person has died), the clerk of the court or the notary, at the request of heirs or legatees representing at least 50% of the estate assets, and with the citation of the other interested parties, may appoint a proxy accountant-partidor, who will be responsible for determining the partition of the estate among the co-heirs and legatees.
A third option is that the co-heirs simply agree on how to carry out the partition of the inheritance, reaching an agreement to that end and executing it as agreed. This is allowed by the applicable legislation, which establishes that when the testator has not made the partition or entrusted this faculty to another (situations contemplated in the two options above), if the heirs are of legal age and have free administration of their assets, they may distribute the inheritance in the manner they deem convenient.
Finally, in the event that the adults of legal age do not agree on the manner of partition (i.e., do not reach an agreement in this respect), their right to exercise it in the manner provided for in the Civil Procedure Law, i.e., they may initiate a specific judicial proceeding, regulated in Articles 782 to 789 of said procedural law, in order for the judicial authority to decide on the division of the inheritance.
In any case, once the inheritance has been divided by any of the aforementioned means, it will confer to each heir the exclusive ownership of the assets that have been awarded to him, thus concluding the interim period initiated with the death of the deceased, since finally all his assets, rights and obligations that were left vacant as owner have been assigned to a new owner, thus ensuring the continuity in the property relations and the necessary legal security in the society.
The taxation of acceptances and partitions of inheritance is undoubtedly one of the issues of most concern to the grantors of this type of instrument. In this regard, it is necessary to point out that this direct tax is regulated by the State by Law 29/1987, of December 18, 1987, on Inheritance and Gift Tax. However, this tax is assigned to the Autonomous Communities, which have developed specific regulations to this effect, which in the case of Catalonia can be found in Law 19/2010, of June 7, regulating inheritance and gift tax.
The result of all these operations will be called NET INHERITANCE AMOUNT, which, in turn, must be distributed among the different co-heirs and legatees (if any), after which, and once the amounts received for life insurance of the deceased (also if any) have been added, the taxable income of each taxpayer (i.e., of each co-heir or legatee) will be obtained.
Taxpayers should note that the deadline to declare the acquisition of the inheritance is six months from the date of death.
In order to execute a deed of acceptance and partition of inheritance, it is only necessary to contact the notary's office and make an appointment on the day and time most convenient for the grantors.
On the agreed date and time, the grantors must simply go to the notary's office with the necessary documentation (see section on necessary documentation) to sign the corresponding deed, which will be drafted based on the minimum legal content required and the forecasts and needs of the clients in question.
All participants in the inheritance must bring their ID card. In the case of foreigners, they must bring their original and valid passport; in addition, they must bring the corresponding NIE.
It is essential to provide the original death certificate. This document will be issued by the Civil Registry corresponding to the place of death or last residence of the deceased. It is usually issued a few days after the death.
This is the official document that confirms whether or not the deceased had a will granted before a notary. This certificate is issued by the Registry of Last Wills and it is always issued 15 days after the death took place. If this document is not available, the Notary's Office can take the necessary steps to obtain it.
It will be essential to provide, if necessary, an authentic copy of the last valid will of the deceased person. The notary's office may be able to help you with this procedure. If the deceased person did not have a will (or corresponding inheritance agreement), it will be necessary to provide the act of declaration of intestate heirs of the deceased.
The original death certificates of any immediate family members who have predeceased the deceased, such as, for example, a child, must be provided in order to determine which other family members (or persons) may have rights to the deceased's inheritance.
For example, deeds of ownership of real estate, incorporation of companies, purchase and sale of shares or stock, the registration certificate of a motor vehicle, etc.
Bank certificates of ownership and balance of accounts and financial products in the name of the deceased issued with the date of death.
If the grantors do not have it, the notary's office can arrange for it to be obtained.
If there is real estate in the inheritance, this will allow the identification of the cadastral reference of the property and its tax value.
In the event that the deceased person had debts and they must be taken into account in the partition of the inheritance.
