Sale of inheritance rights - Notaría Jesús Benavides
Inheritance and donations

Sale of inheritance rights

Step 1

What is the sale of inheritance rights?

It is the notarial document by means of which the heir of an inheritance (or of part of it), before accepting it or once accepted the same one and before its partition, proceeds to the sale of this patrimonial right, as a universality (that is to say, as a whole) to a third party and in exchange for an economic consideration. This third party can be either another co-heir or even a person outside the inheritance.

Step 3

How much does it cost to formalize a sale of inheritance rights before a notary?

See indicative budget

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.

Step 4

More frequently asked questions

What does the sale of inheritance rights consist of?

Normally, when a person is appointed as heir, upon the death of the deceased, if the inheritance is of interest to him, he proceeds to accept it and then, if applicable, to divide the inheritance among the co-heirs that may exist and thus to attribute to himself the assets or the portion thereof that corresponds to him.

However, if this is the most common situation, it is no less true that the law grants the heirs other less known options, such as, in this case, to proceed to the sale of their inheritance rights in favor of a third party, so that the heir sells his quality as such to a third party so that this third party is the one who finally awards himself the assets of the inheritance or, if applicable, goes to the partition with the rest of the co-heirs that there may be.

How useful can the sale of inheritance rights be?

As it has been indicated, the most normal thing is that the designated heir, or co-heir, if he/she concurred with other heirs to the inheritance, accepts the same and proceeds to the partition of the inheritance with the rest of the co-heirs, thus being awarded the assets or portions of these that correspond to him/her according to the dispositions of the deceased.

However, it is no less true that, on certain occasions, it may happen that the heir is not interested in participating in this process of partition and adjudication of assets, such as, for example:

<ejemplo>En el caso de que el heredero o coheredero tenga una necesidad perentoria y urgente de obtener liquidez y no pueda esperar a que se resuelva aceptación y partición de la herencia, en lugar de esperar meses o años a que ésta se produzca, puede optar por vender sus derechos hereditarios a un tercero y así obtener un capital de forma inmediata, sin esperar a que este hecho futuro e incierto se produzca.<ejemplo>

In practice, this will undoubtedly be the most common case, and the interested parties should bear in mind that, nevertheless, if indeed the operation allows the co-heir to obtain immediate liquidity, it has a cost, since normally the persons who acquire this type of inheritance rights will do so at a lower price than the value they will obtain from the assets of the estate once the partition is carried out, so that the co-heir who is considering the sale of his inheritance rights should evaluate calmly and meditated if it is worthwhile or not.

<ejemplo>O, por ejemplo, en el supuesto en el que, habiendo varios coherederos, uno de los mismos, teniendo en cuenta la mala relación personal que pudiere existir entre ellos, proceda a la venta de sus derechos hereditarios para así evitar tener que relacionarse con los demás coherederos.<ejemplo>

Likewise, it may happen that the heir who sells his inheritance rights does not want to share with other co-heirs the assets of the inheritance in condominium regime (imagine the situation that may arise if as a result of the partition of the inheritance a house ends up being owned by three different persons with 33.3% each of them, with the cohabitation conflicts that this may generate), so that he proceeds to sell his inheritance rights to a third party to avoid this situation.

When inheritance rights are sold, is the ownership of the inheritance property transferred?

This is undoubtedly one of the issues that must be made clearer, since effectively, when the sale of the inheritance rights takes place, the buyer is not acquiring specific assets of the inheritance, but what he is acquiring is the right that corresponds to the heir over the inheritance of the deceased as a whole, so that it will be necessary to wait for the phase of partition of the inheritance for the different co-heirs to distribute the estate, determining then which specific assets are assigned to each one of the co-heirs.

What are the requirements for the transfer of inheritance rights?

Logically, in order to be able to transfer an inheritance right, first of all, it is necessary that the same has already been born, which, logically, will only happen once the deceased has passed away and provided that there is a valid succession deed in which the person who proceeds to the sale of his rights is designated as heir.

Thus, if all of the above are present, in order to proceed with the sale of the inheritance rights, it will be necessary for the transferring heir to have accepted the inheritance, which will be the case if he has already executed a deed of acceptance of inheritance in which he formally accepts the inheritance of the deceased. 

However, it is no less true that, since the law also allows the tacit acceptance of the inheritance, the best doctrine considers that even if the inheritance has not been formally accepted, if the heir proceeds to the sale of his inheritance rights, he is considered to have implicitly accepted the same, since only the heir who has accepted the inheritance, even tacitly (i.e. that can be deduced from his acts, as for example happens if he proceeds to the sale of his inheritance rights), can proceed to the alienation of his inheritance rights.

Does the buyer necessarily have to be another co-heir?

In relation to this question, the answer must be resoundingly negative, so that if there are several co-heirs, any of them can sell their rights both to another co-heir and to a third party completely outside the inheritance, so that, for example, if a mother names her three daughters as heirs, any of them can sell their inheritance rights to the other sisters, or if they wish, to any other person, regardless of whether or not they have family ties with the deceased or with the rest of the co-heirs.

See more frequently asked questions

What can the co-heirs do if one of them sells his or her inheritance rights to a third party outside the estate?

In the event that there are several heirs, and one of them decides to sell his inheritance rights to a third party outside the inheritance, with all that this could entail(imagine the situation of several siblings who, for example, must share the use and enjoyment of a family home with a stranger to the family), to prevent this situation from occurring, the law offers a safeguard, since it recognizes a so-called right of withdrawal in favor of the co-heirs.

Thus, if one of them sells his inheritance rights to a third party outside the inheritance, the other co-heirs have the right to subrogate themselves in the position of the buyer, paying him the amount he paid for the inheritance rights, so that if indeed the sale has already taken place, the other co-heirs may repurchase that portion of the inheritance from the third party, paying him the price he paid for these rights, without in such case he can refuse to sell them the rights he bought from the selling co-heir. 

To exercise this right, the law grants the co-heirs a period of one month from the time they are notified of the transfer of the inheritance right.

What representations shall be included in the deed of sale of inheritance rights?

In the deed of sale of inheritance rights, the heir who has expressly or tacitly accepted the inheritance, will proceed to the sale of his rights in favor of a third party (who, as mentioned above, may or may not be a co-heir), and the latter will purchase such rights in exchange for a consideration in the form of a price, which will be fixed in the deed, as well as the form of payment thereof.

Consequently, this third party will become the new holder of the inheritance rights, which will give him the power to participate in the partition of the inheritance and to be awarded the assets of the estate that correspond to him according to his percentage of participation.

Who will bear the costs of the deed of transfer of inheritance rights?

The cost of the deed of sale of inheritance rights, in the form of the Notaries' fee, will be borne by the one of the grantors agreed upon by the parties and, in the absence of an agreement, will generally be borne by the purchasing party, i.e., by the person acquiring the inheritance rights being transferred.

How will the sale of inheritance rights be taxed?

The sale of inheritance rights will generate a tax cost, which will be discussed below:

Firstly, logically, as already mentioned, in order to be able to sell an inheritance right, the heir must have accepted (either expressly or tacitly) the inheritance in question, so that this circumstance already constitutes the taxable event for Inheritance Tax. Thus, in the first place, the heir or co-heir who proceeds to the sale of his inheritance rights must pay the Inheritance Tax on them.

Beyond this, it must be taken into account that if the heir or co-heir, with the sale of these rights, obtains a capital gain, that is to say, sells his rights for a higher price than the one he was awarded in the inheritance, it will generate, as indicated, a capital gain that will have a transcendence in the Personal Income Tax of the year in which it is accrued, being taxed at a tax rate between 19% and 23%, depending on the amount of such gain.

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