It is the notarial document by means of which a person formally and expressly rejects those goods, rights or money that may correspond to him/her in the inheritance of a deceased person.
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.
The repudiation or renunciation of inheritance is the notarial document through which a person formally and expressly rejects those goods, rights or money that may correspond to him/her in the inheritance of a deceased person, so that, through this declaration of will, the designated heir or legatee rejects becoming the owner of the goods and rights that a deceased person has attributed to him/her in his/her will or by virtue of the provisions of the law (in case the deceased person has died without a will).
<ejemplo>Así pues, por ejemplo, si el señor Tomás fallece, designando como heredero de todos sus bienes a su sobrina Laura, pero dichos bienes tienen un escaso valor y la señora Laura no está interesada en adquirir la propiedad de los mismos, mediante la escritura de renuncia o repudiación de herencia, formaliza su voluntad de no convertirse en la nueva titularidad de esos bienes y rechazar los mismos.<ejemplo>
As has just been pointed out in the preceding question, by means of the deed of repudiation of inheritance, the heirs or legatees designated in a succession title may formally, solemnly and unequivocally express their will not to accept said inheritance, so that they will not become new owners of the assets, rights and obligations that make up said inheritance or legacy.
Thus, thanks to this repudiation or renunciation of inheritance, the person designated as heir refuses to become heir, stating that he does not want to become the new owner of those assets and rights that make up the inheritance, for whatever reasons(for example, because the assets are of little value, because they are not of his interest, because they are encumbered with large debts, because there is a relationship of enmity with the testator, etc.). ).
Likewise, it is necessary to have very clear that the repudiation of the inheritance is an entirely voluntary and free act. This implies that this will to renounce 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 personal or moral considerations to determine if they effectively wish to repudiate these assets, rights and obligations once belonging to the deceased person causing the succession. Thus, any person, in principle (with some exceptions which will be discussed below), upon being designated as heir or legatee of another, upon the death of the testator, may decide whether or not to repudiate his or her inheritance.
The answer to this question can only be negative, since the repudiation of the inheritance cannot be made in part, in installments, or conditionally, so that when a person repudiates an inheritance, he/she does so with all its consequences, renouncing all the assets, rights and obligations of the same, without it being possible to select which specific assets he/she wishes to repudiate.
<ejemplo>Así pues, por ejemplo, no es posible pretender heredar un inmueble muy valioso de la herencia libre de cargas, y repudiar el resto de bienes de la misma de menor valor y/o sujetos a cargas o gravámenes como hipotecas), ni tampoco someter dicha repudiación a un plazo o condición (como por ejemplo, pretender repudiar una herencia por un periodo de tiempo para posteriormente aceptarla).<ejemplo>
Those interested in a renunciation of inheritance must be very clear that 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).
<ejemplo>Por consiguiente, si se renuncia a una herencia pensándose que los bienes de la misma tienen escaso valor, y posteriormente, ante cambios en el mercado de esos bienes, los mismos incrementan su valor, no será posible anular esa renuncia para tratar de ser entonces sí designado como heredero de dicho bien que ahora tiene un valor elevado.<ejemplo>
Indeed, as a very relevant formal matter in the field of the repudiation of inheritance, those interested in the same must know that this can only be done before a Notary Public in a public instrument. Thus, unlike the acceptance of the inheritance (which can be tactical or made in a private document), the renunciation of the inheritance can only be formalized before a notary public by granting the corresponding deed of repudiation of inheritance.
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 when accepting an inheritance (unless it is done for the benefit of inventory, a possibility that will be explained below), since the heir is liable for all the inheritance charges, not only with the assets of the inheritance, but also with his own.
Thus, a sensu contrario, the repudiation of the inheritance implies that the assets, rights and obligations of the inheritance in no case are integrated in the patrimony of the heir or legatee, since the latter manifests in a formal, solemn and unequivocal manner that he does not accept them, with which, they do not enter in his patrimonial assets nor will they present any link with the same, so that in no case the creditors of the inheritance may attack the patrimony of the renouncing heir or legatee to satisfy their credits.
As regards the persons who may grant the deed of repudiation 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 or legatees by virtue of any inheritance title.
Having said this, as regards the capacity of the said grantors, it is necessary to take into account that all those who have the free disposal of their assets may repudiate an inheritance, which is equivalent to the full capacity to act that is reached at the age of majority, i.e. at the age of eighteen, also presenting a full intellectual and volitional capacity.
In the case of minors, if the holders of parental authority intend to repudiate the inheritance or legacy deferred to the child, they must seek judicial authorization, which, if denied, will imply that the inheritance can only be accepted for the benefit of inventory (unless the minor has reached sixteen years of age and consents in a public document). In the case of incapacitated persons, the guardian will need judicial authorization to repudiate the inheritance.
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 in order to repudiate them, they will require judicial approval with the hearing of the Public Prosecutor's Office. As regards public administrations, they may only 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 is restrained by the provisions of the law, since 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), it will not be assigned to the renouncing party in any case, but will be allocated to the persons to whom it corresponds according to the applicable regulations.
As indicated above, the acceptance or repudiation 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 applicable legislation, which establishes that when there are several heirs called to the inheritance, some may accept it and the others may renounce it.
Those interested in the repudiation of the inheritance 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 faculty 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>
The taxation of the repudiation of the inheritance is undoubtedly one of the issues that most often concerns the grantors of this kind of instruments. In this regard, it is necessary to know that three main situations can be distinguished, which we will try to differentiate below, so that the interested parties can clearly understand them:
In these cases, by virtue of the provisions of Article 58.3 of the aforementioned tax regulation, these waivers will be considered for tax purposes as a donation and will be taxed under that concept.
For more details on the structure of inheritance tax, please refer to the section on acceptance and division of inheritance.
In order to execute a deed of repudiation of inheritance, it will simply be necessary to contact the notary's office and make an appointment on the day and time most convenient to the grantors. On the agreed date and time, the grantors will simply have to 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.
It is enough that the person who wishes to renounce to the inheritance goes to the notary's office with his ID card. In case the person is a foreigner, he/she must present to the notary his/her original and valid passport. In addition, if he/she has one, it is advisable to present the NIE together with the mentioned passport.
It is essential to provide the original death certificate or, if applicable, a copy of the same. 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.
