asset acceptance Acceptance and renunciation of inheritance

Acceptance and renunciation of inheritance




2. Procedure for the Sharing of Goods;
3. Acceptance of Inheritance;
4. Waiver of Inheritance;



Daniel Lajst, Law StudentPosted by Daniel Lajsthá 2 years3,965 views
1. OF THE HERITAGE
Inheritance is the estate of the deceased, that is, the set of rights and duties that are passed on to legitimate heirs or testamentary, unless they are very personal or inherent to the person of the deceased.

When we speak of rights, we refer to assets and in relation to duties, we call them liabilities.

So that there can be an effective transmission of the goods. Assets must exceed liabilities of "de cujus".

In the past, the heirs charged with the burdens of their ascendants. Nowadays, the inheritance is first performed so that the duties left by the deceased can be fulfilled, only then, to transfer the rights to their descendants.

If the liability exceeds the asset, it is not necessary to mention the transfer of the loss to the heirs or legatees.

2. PROCEDURE FOR THE SHARING OF GOODS
2.1. Purpose of the Inventory

The purpose of the inventory is:

Isolate the assets of the spouse's actions;

· Verify that the inheritance is sufficient for the payment of debts;

Define the forms of payment;

· Arrange on how the sharing will take place;

· Among others.2.2. Liability for liabilities

The art. 1792 of the Civil Code, provides that the heir does not answer for burdens higher than the forces of inheritance; it is incumbent upon him to prove the excess, unless there is an inventory, that excuses him, showing the value of the inherited property and the amount of the debts.

Therefore, you will not be responsible for debts that exceed the possibilities of your succession share.

2.3. Moment of Property Transmission and Possession

In relation to the moment of transmission of ownership and possession, there are three currents with understandings that occur with:

i) The simple opening of Succession, with the death of what happened;

ii) Acceptance of inheritance; or

iii) The opening of Succession occurs the acquisition of possession, while ownership, will only be transmitted with the acceptance of inheritance.

The third chain represents the majority view of doctrine and the courts.

Acceptance of inheritance or legacy consolidates dominance and indirect ownership over the object.

3. ACCEPTANCE OF HERITAGE
Acceptance of inheritance comes to be the unilateral legal act by which the heir, legitimate or testamentary, freely expresses his will to receive the inheritance that is transmitted to him. In this way, the transmission of ownership and indirect ownership of assets is ratified.

The acceptance only confirms the right that the "de cujus" attributed to the heir, consolidating the rights of this.

The act of accepting is a prerequisite to the definitive translation of the domain, since no one is obliged to acquire patrimonial mortis causa.

With the deed the heir is called to succeed, with acceptance he issues his answer, officially investing himself in the condition of successor.3.1. Moment of Acceptance

The heirs, at the beginning of the judicial inventory, must be summoned to attend the proceedings, and may or may not express acceptance of the inheritance.

At the request of the interested party, formulated at least twenty days after the opening of the succession, the judge shall fix a reasonable period, not exceeding thirty days, for the heir to say whether or not he accepts the inheritance.

3.2. Characteristics of Acceptance

It is a unilateral juridical business, since it is done by the simple agreement of the beneficiary, meeting the other requirements of stocks.

These requirements, according to Francesco Degni, are:

a) Declaration of Will;

b) Object

c) Opening of Succession.

It has an indivisible character, the acceptance of only one part is inadmissible.

The indivisible character does not apply to cases in which the benefit appears in the inventory as a legitimate and testamentary heir.

Acceptance does not include condition or term. (article 1808, CC),

After accepting the inheritance, the heir is prevented from renouncing it.

3.3. Species of Acceptance

As for its shape, it can be:

a) Expressed;

a) Tacit;

c) Presumed.

Art. 1.805. Acceptance of inheritance, when expressed, is done by written declaration; when it is tacit, will only result from acts proper to the heir.

a) Expresses:

It is the one that results from a written declaration, public or private, of the heir manifesting his desire to receive the inheritance.

The mere verbal manifestation of the heir in the sense of adding the inheritance, although before witnesses, does not count as acceptance. This is because the requirement of express acceptance is idle because it merely confirms the new legal relationship established with the opening of the succession.

b) Tactic:

If inferred from acts, positive or negative, compatible with the hereditary condition of the heir, that demonstrate the intention to accept the inheritance.

c) Presumed:

If there is absence of any manifestation of the heir, within 30 days, requested by an interested party to the judge, after 20 days of the opening of the succession, to pronounce itself.

3.4. In relation to the heir.

As for the person who manifests it, one has:

a) Direct, if it comes from the heir own.

b) Indirect. if one does it for the heir, in which case one has: acceptance by the successors (CC, article 1809); by the tutor or curator (CC, art. 1748, II); by agent or business manager; by the creditors (CC, article 1813, § 1 and 2).

i) For Successors:

In case the heir dies before declaring whether or not he accepts the succession, the right to accept passes to his heirs, validating their declaration as if from that party.ii) By the Tutor or Curator:

Art. It is also the responsibility of the tutor, with the authorization of the judge:

I - pay the debts of the minor;

II - accept inheritances, legacies or donations, even if with orders;

III - compromise;

IV - to sell to him the movable property, whose conservation does not converge, and the real estate in the cases in which it is allowed;

V - propose in court the actions, or in them assist the minor, and promote all diligences for the good of this, as well as defend him in the lawsuits against him moved.

Single paragraph. In case of lack of authorization, the effectiveness of the tutor's act depends on the subsequent approval of the judge.

iii) By Mandate or Business Manager:

The agent's acceptance of the inheritance is accepted, but the admissibility of a declaration made by the business manager, subordinated only to the confirmation of the heir, is controversial.

iv) By the Creditors:

In the event that the heir harms them with their resignation. The qualification of the creditors will be made within the decadential term of 30 days following the knowledge of the abdication fact.

However, judicial authorization is indispensable so that the creditors can accept inheritance in the name of the renouncer, only being able to benefit up to the amount of the credits; paid such debts, the remainder will be returned the one to whom the renunciation benefits, and not to the renouncer, who is no longer heir.

3.5. Unreceptibility of acceptance

The heir can not apprehend it, for acceptance is not subject to withdrawal, nor can he, if he renounce, harm the creditors. If there is damage to the rights of creditors, they may safeguard them, claiming the provision referred to in the article below:

Art. When the heirs harm their creditors by renouncing their inheritance, they may, with the authorization of the court, accept it on behalf of the renunciate.

§ 1 The qualification of creditors shall be made within thirty days following the knowledge of the fact.

Paragraph 2 - Paid the debts of the renouncer, the surrender of the remainder prevails, which shall be returned to the other heirs.

3.6. Annulment and Revocation of Acceptance

Acceptance may be annulled or revoked if after its occurrence it is ascertained that the acceptor is not the heir or if the will absorbed the entire inheritance, and there is an heir.

With the declaration of the ineffectiveness of acceptance, the inheritance passes to the heir to whom it is regularly defended, as if that acceptance had never occurred. However, if the share has already been approved, the interested party may only claim what is due to him by action of inheritance petition.

4. WAIVER OF HERITAGE
It constitutes a unilateral juridical act by which the heir expressly declares the refusal of the inheritance that possesses prerogative and right, divesting itself of its ownership.

Art. The renunciation of inheritance must be expressly stated as a public instrument or judicial term.

It has an "ex tunc" effect, retroacting to the date of the opening of the succession.

The heir is not required to receive the inheritance.

Hence, the act of refusal extinguished any right of the renouncer, so that the renunciation takes effect, the heir is considered as if he had never been called to take possession of the hereditary share. It gives the need, for its configuration, the following essential requirements:

4.1. Requirements

i) Legal capacity of the renouncer:

The incapacitates can not renounce the inheritance except through its legal representative, previously authorized by the judge; the agent, in order to resign by the principal, shall be provided with special and express powers.

The married person may accept or waive inheritance or legacy regardless of prior consent of the spouse.

ii) Form prescribed by law:

Under Article 1806 of the Civil Code, to be valid, the waiver must be expressly included in a public instrument, called a public deed or judicial term, under penalty of absolute nullity.

Thus, renunciation can only be expressed, not accepting tacit or presumptive repudiation of inheritance.

The public deed and the term in the records constitute a requirement ad substantiam and not only ad probationem of the act.

iii) Inadmissibility of condition or term:

Renunciation is a pure and simple act, therefore, only renunciations are authentic:

a) abdication; or,

b) translativeIf the resignation is abdication (pure and simple), the only tax to be paid by the beneficiary is the cause mortis.

In turn, the translative as a donation, or assignment of inheritance, which follows acceptance, will focus on inter vivos taxation and causa mortis.

iv) Impossibility of partial repudiation of inheritance:

Partial refusal of inheritance is unfeasible, since it is an indivisible unity until the sharing.

But to the heir to succeed, concomitantly, universally - as heir - and, in a unique capacity - as a legatee - is authorized to renounce integrally to the inheritance, conserving the legacy, or vice versa.

v) Legal object:

Prohibited is the waiver contrary to the law, or conflicting with rights of third parties.

4.2. Protection Against Credit Fraud:

As previously mentioned, article 1,813 of the Civil Code expresses the protection against fraud of creditors.

It is not a matter of invalidating the renunciation of the inheritance, but of its ineffectiveness before the creditor, reaching only the juridical consequences exsurgidas of the act.

Note: If the heir owns property paid to pay his creditors, he may repudiate the inheritance without any restriction.

The qualification of any creditors shall be made within 30 days following the knowledge of the fact, regardless of proof of their bad faith, by judicial authorization, to receive payment of what is due to them.

If you pay the debts of the renouncer, the resignation will prevail and if there is a remaining balance, it will be sent to the other heirs

4.3. Moment of Renunciation of Inheritance

It occurs at the moment of the opening of the succession. This is because, only at the moment of death of the author of the inheritance is born to the heir or legatee his right to inheritance or legacy.

4.4. Effects

The resignation, once formalized, begins to produce the following effects, by retroacting to the time of the opening of the succession:

The renunciate is treated as if he had never been called to the succession, consequently he will not be counted for the purpose of calculating the available portion of the de cujus.

The hereditary portion of the repudiant, in the legitimate succession, is transmitted ipsa iure to the heirs of the same class (right to increase).

The descendants of the renunciate do not inherit by representation in the legitimate succession, but if he is the only one of the class or if the other descendants also repudiate the inheritance, their children can be called to the succession.

In the succession testamentary the resignation of the heir makes each disposition of last will that benefits it, unless the testator indicated substitute or there is right to increase.

The one who repudiates the inheritance is not prevented from accepting legacy.Art. 1.808, § 1. The heir, to whom legacies are tested, can accept them, renouncing the inheritance; or, accepting it, repudiate them.

Likewise, the heir called, in the same succession, more than one hereditary portion, under various successive titles, can freely decide on the shares he accepts and those he renounces.

Art. 1.810 - In legitimate succession, the renouncing party is added to that of the heirs of the same class and, being the only one of the same class, is returned to those of the subsequent class.

The renouncer can administer and take advantage of the assets that, due to his repudiation, are passed on to his minor children due to the existence of family power.

In this way, I did not suppress the right of his successors invested in the transmission of the inheritance.

4.5. Irrevocability of the Disclaimer

The renunciation is irrevocable, irreversible and definitive, producing immediate effect, generating the fiction of not having the renunciante never been heir.

Art. 1.812. Acts of acceptance or refusal of inheritance are irrevocable.

The renunciation is, like any legal act, nullable if the will, which expressed it, was vitiated by error, deceit or coercion, under the terms of article 171, II, of the Civil Code.