Possible scenarios when accepting an inheritance

In the present post we will analyze issues to be taken into account when accepting an inheritance, including the best way to accept it, and the need for advice prior to the completion of any procedure, since the correct implementation will mean significant savings Economic future and eliminate a host of concerns and possible discussions very common in this type of processes.

As an introduction we will say that it is not obligatory to accept an inheritance, it is a totally personal and voluntary act. In the case of deciding to accept the inheritance, many clients question how this acceptance should be made, can it be partial, accepting the best part but not the one that does not satisfy me? In our legal system inheritance has to be accepted or totally repudiated, there are no partial acceptances or repudiations, which is why one must be completely sure of the content of this inheritance given that according to the autonomous community where we are, we can even inherit exclusively debts. 

In addition, in the event of the death of one of the spouses, the need for previous counseling on hereditary matters is added to the need to carry out the prior liquidation of the spouses. But what can be a major embarrassment at first can make it an advantage, by performing both acts at the same time we can optimally plan the tax repercussions of the operation. 

As a general rule, and on many occasions for not obtaining advice prior to acceptance, those who are called to inheritance, that is, heirs, are allowed to follow the “standard” procedure of accepting inheritance, following the pre-established channels even in own redactions of the notarial deeds of acceptance of inheritance, without taking into account their true interests, in the situation in which they will remain once the inheritance and the agreements or operations that the heirs will later have to do, implying to go back to the notary, to liquidate More taxes, etc.

Therefore, we can point out as questions of interest to the time to make an acceptance of inheritance the following: 

• The existence of a marriage of which the deceased forms part, whose liquidation is essential before the possible acceptance and partition of inheritance. This division of the profits is prior to the hereditary operations, the parties can perform them as best suits them, without the tax administration can object on how it is done, all according to established jurisprudence.

• The previous condominiums existing among the heirs, in case they are brothers for having accepted the inheritance of one of the parents in equal parts previously.

• The tax consequences of the operation, which must be analyzed from an integral point of view, including the sales that the heirs intend to carry out in the future.

• The needs of the heirs and the presumed destiny that will be given to the inherited assets.

• In principle, an inheritance implies an increase in wealth, but we must take into account the expenses that the inherited goods will generate if they are not properly exploited, which can cause us to find in a very short space of time which was initially received.

Let’s illustrate some of these problems with a very clear example. See the usual situation in which we find heirs, who are usually brothers among, but three in our example, before the death of their ancestors. Without proper advice (and sometimes even counting on it), it is usual to accept the estate of the inheritance in an indivisible way – in equal parts – without first stopping to analyze the true interests and situation of each brother.

Imagine that two of the brothers are in a comfortable situation and one of them is impaired by the debts, making the brothers in a comfortable position want to maintain the real estate and make them profitable in any way, and on the contrary, the brother in a worse situation critical what he needs is liquidity to get out of the quagmire he suffers on a daily basis and that he therefore needs to sell his share of the estate. It so happens that the brothers, even with good intentions among them, accept the inheritance in pro indiviso, that is, that each one owns a 1/3 part of the inheritance, but since they can not dispose of its part if there is no approval of the other heirs, conflicts begin.

Given the refusal of his brothers and not having accepted and distributed the inheritance by awarding the property individually, the brother who wished to sell some property would be subject to a judicial procedure of division of common thing, a procedure to which he is entitled because it is enough that only one of the commoners wants to divide the good (or auction if it is indivisible) to initiate this judicial process of division.

Therefore, before accepting the inheritance as is usually done by letting go of the inertia of the procedure, it would be convenient to analyze the need to split the goods and in what way, in which case it is essential to build lots of goods as homogeneous as possible, To avoid the excesses of adjudication that can be penalized in a taxes way. 

If we are in the later moment, with the inheritance accepted in equal parts, experience tells us that in this type of cases in which an heir refuses to sell the property, it is best to try to reach an agreement between them, even proposing the heirs who are interested in the inherited good buy the other’s share without requiring any legal proceedings. This will lead to cost savings and further erosion of the family relationship which, as a rule, can deteriorate greatly as a result of this situation.

In larger estates and more complex inheritances it may even be convenient to establish a professional administration, the elaboration of a family agreement, etc. 

In Navarro Llima Abogados S.L. we can advise both from a succession and a fiscal point of view to adjust the acceptance of the inheritance to the needs of the heirs.

Guillermo Martínez and Héctor González.


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