Guide to know when it is better to give up an inheritance and not keep the debts | My Rights | Economy


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The coronavirus crisis and the mortality caused by the virus have increased the number of inheritances that are processed in Spain and, consequently, the number of renunciations of inherited assets. A result that has been reflected in the statistics recently offered by the General Council of Notaries (CGN). According to the data collected until the first half of last year, 2021 is emerging as the year with the most inheritance renunciations in the entire historical series (since 2007). Specifically, some 12,000 more rejections have been recorded than in the same reference period of 2020.

The data for the second quarter of 2021 are still to be sorted, but, according to Teresa Barea, spokesperson for the CGN, "everything points to the year, in general, closing with a significant increase."

The causes of this boom, reflects Barea, must be sought in the excess mortality of the year 2020. These types of statistics, he explains, always have a time lag or offset due to the time that passes between the moment of death and the of the opening of the testament in the notary. In other words, “we are beginning to see the consequences or the rebound effect of this increase in deaths and it will surely be projected over the next few years.” A reasoning shared by Abel Marín, lawyer and partner at Marín & Mateo Abogados. In fact, he states, "the resignations have not increased in the same proportion as the deaths."

Rejecting an inheritance is a hard step for the heirs, but necessary in certain situations if they do not want to assume the debts of the deceased or cannot pay the taxes associated with the acquisition of the assets. In any case, it is a formal procedure on which it is necessary to be suitably advised. Beyond the specific situation of each affected person, these are the answers to the most common legal doubts that assail citizens when deciding what to do with their inheritance.

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When is it convenient to give up the inheritance?

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When the inheritance contains more debts than assets and, therefore, shows a negative net balance, or when the heir does not have enough liquidity to pay taxes.

These are the two main reasons, points out the notary Teresa Barea, for which the heirs refuse to receive the assets of the deceased. The resignation can also occur, he adds, for personal reasons. For example, "when a person who had no dealings with his relative and it does not seem appropriate to inherit from him." However, the most frequent assumption in practice “is that of the existence of debts”. It is more rare for it to be waived due to the cost associated with the succession (the payment of inheritance and capital gains taxes), because, normally, almost all the autonomous communities have subsidized transfers between direct relatives.

If the intention to resign is clear, advises the lawyer Abel Marín, "it is best to do it as soon as possible to avoid carrying out acts of disposition that could be considered tacit acceptance of the inheritance."

Do I have to go to the notary? How much?

The renunciation of the inheritance can only be made once the testator has died, in addition to being formalized in a public deed, so it is necessary to go to the notary.

The resignation has a modest cost of about 50 or 60 euros. It is a document, explains Barea, "without amount", that is, its value does not depend on the amount of the inheritance. An affordable amount is set "so that no one can be deprived of this possibility," he says.

The cost of a notary for an acceptance of the inheritance and its partition, on the other hand, depends on the hereditary wealth and various factors influence it, such as the number of heirs, assets, etc.

Does it have any kind of tax consequence?

When resigning, no tax is accrued. However, Barea points out, you have to be careful and not let too much time pass before going to the notary to resign.

It is true that one thing is the obligation to pay the taxes of the inheritance, which must be done within 6 months following the death (a period that can be extended for six more) and another thing is the resignation of this before a notary, for which there is no a peremptory term. But, Barea warns, if too much time is allowed to pass, specifically the four years of prescription of the tax, the Treasury will consider that the resignation is a donation and it will have to be paid again.

Can I accept only what interests me?

No. Inheritance “is accepted or renounced totally, never partially”, explains Marín. That is, you can not accept the house and give up your mortgage.

However, if there are legacies (gifts) ordered in the will, "you can accept these and renounce the inheritance or vice versa, accept the inheritance and renounce one or more legacies," says the lawyer.

So what does it mean to accept the inheritance “for the benefit of inventory”?

It is a legal formula to avoid having to pay the debts of the deceased with their own money or assets. It works as follows: if it is accepted for the benefit of inventory, the heir will only be liable for the debts that have been left with the assets received from the inheritance. In this case, the creditor will only collect as far as the assets of the deceased. In this way, the heir is protected and will not have to pay out of pocket for the holes left.

This maneuver is convenient “in the event that we do not know for sure if the inheritance is a ruin or not”, advises Barea. This is, in case of doubt, such as when it is not known whether the company of the distant uncle that is inherited is healthy or not. Very graphically, Terea Barea explains: "If the inheritance is white, it is accepted without further ado, if it is black, you have to reject it, but if it is gray, it is better to accept for the benefit of inventory".

What kind of debts can be left to me as an inheritance?

With the inheritance, any type of debt can be left to relatives. When a person dies, Barea clarifies, "their patrimony is made up of both the assets (house, car, accounts, etc.) and the liabilities, that is, all the debts that they have contracted throughout their lives and that are alive" .

Therefore, an inheritance can include debts derived from personal loans, mortgages, and even the payment order established in a civil or criminal sentence. It is important to point out that criminal judges usually include with the conviction for the crime the payment of civil liability for the damage caused. Although fines or prison sentences or disqualification are not inherited, debts that remain pending from the crimes committed can be acquired through inheritance.

Endorsements or bonds can also be inherited. It is unknown, says Barea, "but you have to be careful." If the deceased acted as guarantor or guarantor of another person in a mortgage loan, for example, the heir becomes responsible for that potential or possible debt. It is not a direct debt, because the guarantee only comes into play if the obligor does not pay, but until the overdraft is settled, it will maintain this position as guarantor. The guarantees, adds Marín, "are inherited under the same conditions in which they were provided."

And if I simply accept the inheritance, can the creditors seize my assets?

Indeed, yes. In fact, explains Marín, it is what happens when an inheritance is accepted in a pure and simple way and then debts and guarantees of the deceased are discovered.

Who gets the inheritance I have given up?

It depends on whether there are one or several heirs and whether the resignation is carried out only by one or by all of them. There are also differences depending on whether the deceased (decedent who transmits the assets) left a will or not.

If there is a will, the usual thing is that the testator has designated a substitute for that circumstance in it, explains Marín. Normally, Barea points out, when leaving the assets to the heirs, the tagline "vulgarly replaced by their descendants" is added. This means, he explains, that if the son renounces his part, it will go directly to his own children, that is, to the grandchildren of the deceased.

In a hypothetical chain of resignations, or when there is no will, what is known as “right to accrue” can occur, which means that the part of the person who rejects the inheritance is apportioned among the other heirs. In the event that there is no close or distant relative (following the order established in the Civil Code) who wants the inheritance, it would go to the coffers of the State or the autonomous community. Only those autonomies inherit, Barea points out, with their own civil law (foral or special), such as Navarra, Catalonia or Aragón, among others, that have provided for it in their regulations, "what the majority have done."



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