When a loved one passes away and we become heirs, we face one of the most important decisions in patrimonial matters. An inheritance not only includes assets and properties, but also the debts and obligations of the deceased. In this context, understanding the available options becomes fundamental to protect our personal patrimony and make the most accurate decision.
Why Is This Decision Crucial?
Accepting an inheritance implies much more than receiving properties or bank accounts. According to the fundamental principle established in the Spanish Civil Code, when we accept an inheritance we also assume the financial responsibilities of the decedent. This reality converts the hereditary decision into a crucial moment that can determine our future economic stability.
In legal practice, I have observed numerous cases where heirs, moved by affection toward the deceased or the expectation of receiving valuable assets, accept inheritances without conducting a prior analysis of the patrimonial status. This situation can lead to devastating consequences when hidden debts appear that exceed the value of the inherited assets.
The Three Options of the Heir
1 Pure and Simple Acceptance: The Option of Greatest Risk
Pure and simple acceptance constitutes the traditional form of inheriting, through which the heir completely assumes both the assets and liabilities of the decedent. This modality implies that our personal patrimony merges with that of the deceased, generating unlimited responsibility for hereditary debts.
When we opt for this alternative, we respond for the obligations of the decedent even beyond the value of the inherited assets. This means that if the debts exceed the assets of the inheritance, we must cover the difference with our own economic resources. For example, if we inherit a dwelling valued at 150,000 euros but subsequently discover pending loans for 200,000 euros, we must personally assume those additional 50,000 euros.
Pure and simple acceptance is only advisable when we have absolute certainty that the assets broadly exceed the debts, or when the obligations are known and assumable. However, the irrevocability of this decision converts any calculation error into a potentially ruinous financial situation.
Risks of Tacit Acceptance
An especially delicate aspect of pure and simple acceptance is the possibility that it occurs tacitly, without an express declaration on our part. Article 999 of the Civil Code defines tacit acceptance as that which occurs “by acts that necessarily suppose the will to accept, or that one would have no right to execute except with the quality of heir.”
Jurisprudence has established that acts of tacit acceptance constitute conduct such as the collection of hereditary credits, the management of the deceased’s assets, the sale of inherited properties, or even the payment of inheritance debts with funds from the same. In one of the most recent cases, the Superior Court of Justice of Madrid considered that withdrawing money from the decedent’s accounts to pay expenses for his residence constituted tacit acceptance, even when renunciation was subsequently formalized before a notary.
This situation is especially dangerous because many heirs are unaware that certain apparently innocuous acts can imply automatic acceptance of the inheritance. For example, using hereditary assets for a prolonged period, registering properties in our name, or maintaining bank accounts of the deceased can be interpreted as tacit manifestation of will to inherit.
2 Acceptance with Benefit of Inventory: Intelligent Protection
Acceptance with benefit of inventory represents the most prudent option when doubts exist about the patrimonial balance of the inheritance. This juridical figure, regulated in articles 1010 to 1034 of the Civil Code, allows limiting our responsibility exclusively to the value of the inherited assets.
Article 1023 of the Civil Code establishes with clarity the protective effects of the benefit of inventory: the heir is not obligated to pay the debts except to the extent that the assets of the inheritance reach, conserves all his rights against the hereditary estate, and maintains an absolute separation between his personal patrimony and the inherited assets.
This modality functions as a true protective shield that prevents the debts of the deceased from contaminating our personal patrimony. If the obligations exceed the value of the inherited assets, we simply will not respond for the excess, maintaining intact our prior financial situation.
Procedure for Acceptance with Benefit of Inventory
To avail oneself of the benefit of inventory it is necessary to make an express declaration before a notary or competent judge. This manifestation must be made within specific time limits that vary according to our particular circumstances.
If we have in our possession the inheritance or part of it, we have 30 natural days from when we know our condition as heirs to communicate to the notary our intention to form inventory. When we do not possess hereditary assets nor have we performed management as heirs, the 30-day period is counted from the expiration of the term that we would have been given to accept or repudiate the inheritance.
The process requires the elaboration of a faithful and exact inventory of all the assets, rights, debts and charges of the inheritance. This inventory must be made with citation of known creditors and legatees, allowing them to participate in the process if they wish. The formation of the inventory must be initiated within 30 days following the citation and completed within a maximum period of 60 days, extendable up to one year for justified causes.
3 Renunciation of the Inheritance: The Safest Option
When debts clearly exceed the assets, or when we prefer to avoid any hereditary complication, renunciation constitutes the safest alternative. By renouncing, we reject both the assets and liabilities of the decedent, freeing ourselves completely from any responsibility related to his patrimony.
The renunciation must be formalized necessarily in public document before a notary, as established by article 1008 of the Civil Code. It is a free, voluntary, irrevocable and express act that does not admit tacit modalities or private documents. Once formalized, we cannot change our mind, so it is fundamental to carefully evaluate this decision before adopting it.
Time Limits and Requirements for Renunciation
The Civil Code does not establish a specific time limit to renounce from the death, only requiring that nine days have passed since the demise. However, it is advisable to formalize the renunciation before the Inheritance and Donations Tax prescribes, generally within a period of six months.
If we exceed this fiscal time limit without formalizing the renunciation, the tax Administration can interpret that we have accepted the inheritance and subsequently transferred it, generating additional fiscal obligations. This situation evidences the importance of acting with celerity when we decide to reject an inheritance.
The Right to Deliberate: Information Before Deciding
Before making any decision, Spanish legislation grants us the right to deliberate, a faculty that allows examining in detail the state of the inheritance before opting for any of the available alternatives.
The right to deliberate allows us to request the formation of a notarial inventory of all the assets, rights, debts and charges of the decedent. Once this inventory is finished, we have precise information about the real patrimonial situation of the inheritance, which allows us to make a founded decision.
Functioning of the Right to Deliberate
To exercise this right, we must communicate to the competent notary our intention to deliberate and request the formation of inventory with citation of creditors and legatees. The time limits for this communication coincide with those established for the benefit of inventory: 30 days if we have hereditary assets in our possession, or 30 days from the notarial requirement in the contrary case.
Once the inventory is completed, we have an additional 30 days to manifest to the notary our final decision: accept purely and simply, accept with benefit of inventory, or renounce. If we do not express our will within this time limit, it is understood that we have accepted the inheritance purely and simply.
When Each Option Is Convenient
The choice between the different alternatives must be based on an objective analysis of the patrimonial situation of the decedent and our own personal circumstances.
We recommend pure and simple acceptance only when we have absolute certainty that the assets broadly exceed the debts, when we exhaustively know the financial situation of the deceased, and when we wish to expedite the succession procedures assuming minimal risks.
Acceptance with benefit of inventory is advisable in most cases, especially when doubts exist about the patrimonial balance, when we suspect the existence of hidden debts, when the decedent had business or commercial activity, or when we simply prefer to act with prudence.
Renunciation becomes the most intelligent option when debts clearly exceed the assets, when the hereditary procedures are excessively complex, when there are serious family conflicts, or when we prefer to avoid any responsibility related to the patrimony of the deceased.
Protection of Personal Patrimony: Key Strategies
Regardless of the option chosen, there are fundamental strategies to protect our personal patrimony during the hereditary process.
The first measure consists of conducting an exhaustive investigation of the patrimonial state of the decedent before making any decision. This includes requesting debt certificates in public registries, reviewing banking documentation, investigating possible guarantees or securities granted, and consulting with professionals who had maintained a relationship with the deceased.
Secondly, we must avoid any act that can be interpreted as tacit acceptance while we evaluate our options. This means not disposing of hereditary assets, not collecting credits of the decedent, not paying debts with funds from the inheritance, and maintaining a clear separation between our patrimony and that of the deceased.
Finally, it is indispensable to act within the legal time limits established to avoid an automatic acceptance by silence. Inertia or delay in decision-making can lead us to assume responsibilities that we initially did not desire.
Fiscal and Registry Consequences
Each acceptance modality generates specific fiscal consequences that we must consider in our decision. Pure and simple acceptance makes us responsible for the corresponding Inheritance Tax and for any pending tax debt of the decedent. Additionally, we may be obligated to pay tax on the Increase in Value of Urban Land if real estate properties exist.
Acceptance with benefit of inventory does not exempt us from Inheritance Tax, but limits our responsibility for the tax debts of the deceased to the value of the inherited assets. This modality requires additional notarial expenses for the formation of the inventory, which can subsequently be deducted from the hereditary mass.
Renunciation completely frees us from fiscal obligations related to the inheritance, but we must formalize it before the expiration of the Inheritance Tax time limit to avoid adverse fiscal interpretations.
Practical Recommendations
Based on professional experience in hereditary cases, I recommend following a series of practical guidelines that can avoid future problems.
First, we must never act precipitately. The emotional pressure of grief or family pressure should not influence a decision of such patrimonial transcendence. It is preferable to take the necessary time to correctly evaluate the situation, taking advantage of the available legal time limits.
Secondly, we must request specialized professional advice before making any decision. A lawyer expert in succession law can evaluate the available documentation, identify potential risks, and guide us toward the most convenient option according to our specific circumstances.
Finally, it is fundamental to adequately document the entire decision-making process. Conserving copies of the consulted documentation, the communications made, and the professional reports received can be crucial if controversies or claims subsequently arise.
Frequently Asked Questions
Can I change my mind after accepting an inheritance?
No, the acceptance of an inheritance is irrevocable according to article 997 of the Civil Code. Once the acceptance is formalized, whether pure and simple or with benefit of inventory, it is not possible to retract except in exceptional cases of vices of consent such as error, fraud or intimidation.
How much time do I have to decide about an inheritance?
The Civil Code does not establish a general time limit to decide. However, any interested party can require notarially that we make a decision within 30 days according to article 1005. If we do not respond within that time limit, it is understood as accepted purely and simply.
Can I accept only part of an inheritance and reject another part?
No, according to article 990 of the Civil Code, the acceptance must be total. We cannot selectively accept some assets and reject the debts. We must opt to accept the entire inheritance (with or without benefit of inventory) or renounce completely.
What happens if debts appear after accepting with benefit of inventory?
If we accept with benefit of inventory, we only respond up to the value of the inherited assets. Debts that appear subsequently cannot be claimed against our personal patrimony, provided that we have correctly complied with the inventory procedure.
Is it mandatory to make inventory to accept with benefit of inventory?
Yes, it is indispensable to make a faithful and exact inventory of all the assets of the inheritance. Without this inventory, the declaration of benefit of inventory does not produce legal effects according to article 1013 of the Civil Code.
The hereditary decisions constitutes one of the most delicate moments in family patrimonial management. The information contained in this article has an orientative character and does not substitute personalized legal advice. Before any doubt, we recommend consulting with professionals specialized in succession law who can evaluate the specific circumstances of each case.
Next article Block II. Article II.