Having been considered an heir is usually considered very beneficial, since it increases your wealth. However, receiving an inheritance can sometimes become inconvenient. In this context, the formal need arises to avoid a waiver of inheritance . In this article we explain how it is done and what it implies.
What is the waiver of inheritance?
The renunciation of inheritance is a free and irrevocable act, contemplated in the civil code that allows any of the heirs of a deceased to repudiate the inheritance, this can be done independently of the rest of the joint heirs. Unlike the acceptance of inheritance that can be tacit or made by private document, the resignation of inheritance must be affected before a notary through a public deed. The waiver must be total, the inheritance cannot be specifically waived. Neither may he submit said resignation to a term, nor do it conditionally.
It should be noted that whoever resigns, which he also does on behalf of his own heirs, his lineage, this except that by will, a substitute has been provided in the event of resignation. When a substitute is not provided, the rights of resignation will pass to the rest of the joint heirs.
Why would an heir want to give up his inheritance?
A common reason that the heirs decide to renounce the inheritance is that the deceased has left more debts than assets. The acceptance of an inheritance implies assuming indissolubly, both the possession of goods and rights as well as the fulfillment of the obligations of the deceased. The civil code establishes that when he accepts an inheritance, the heir responds to the obligations of the deceased, not only with his property, but also with his own property. Thus, in the event that the sum of the value of the debts of the deceased exceeds the value of the assets, the convenience of renouncing the inheritance can be considered. It is important to remember that in these circumstances there is an intermediate option, which is accept the inheritance for the benefit of inventory. In this case, the entire debts of the deceased will be paid first, assigning it automatically to the inheritance assets the amount that will be distributed among the heirs.
If the heir cannot assume the payment of inheritance tax. Although this tax depends on the Autonomous Community where the deceased lived. There are cases in the inheritance tax that the heir must liquidate causes too much hassle. This happens when the inheritance is granted online collateral, as is the case of inheritances from uncles to nephews.
Another case is when the heir has debts. By increasing the estate of the heir at the cost of accepting the assets of the deceased, the creditors of the heir can ship those assets to settle debts.
Is it valid for an heir with debts to renounce his inheritance to the detriment of his creditors?
It is possible that the case that an heir is tempted to repudiate the inheritance to avoid that the assets that increase his patrimony, are object of embargo in order that his creditors satisfy his credits. In these cases, the Civil Code, in its article 1,001, provides that if the heir repudiates the inheritance to the detriment of his creditors, the legal actions may increase in order to authorize them to accept it on behalf of his debtor.
If after liquidating the creditors, there is a remnant of the inheritance, this will not be assigned to the renouncer, but to those who follow him according to the succession order of the Civil Code.
How do you proceed to avoid the renunciation of inheritance?
The formal act of resignation is carried out by means of a deed of repudiation of inheritance. For this, it is enough to contact the notarial office. Where should you go with the following documentation:
- Valid DNI of the heir.
- Death certificate of the deceased.
- Certificate of last wills of the deceased.
- Authentic copy of your last valid testament or declaration of heirs.
Who can give up an inheritance?
The first thing is that the renouncer has been considered as heir by virtue of any succession title. The renouncer must have reached the age of majority presenting full intellectual capacity and free will.
However, there are other cases such as:
- Minors. In this context, all responsibility rests with the titles of parental authority. If they intend to renounce the inheritance they will need a judicial authorization. In case the authorization is denied, the inheritance can only be accepted for the benefit of inventory.
- Incapacitated heirs. The procedure is similar to minors. The guardian will also need judicial authorization to repudiate the inheritance.
- If it is an association, foundation or corporation with the power to accept inheritances, the act of resignation of inheritance will require judicial approval.
- Public Administrations. They may only repudiate inheritances previous approval of the Government.
Is there a deadline to lose the waiver of inheritance?
There is no legal term to accept or renounce the inheritance. However, it is important to resign before the voluntary deadline for the settlement of Inheritance and Gift Tax expires. This period is 6 months from the death of the deceased.
In the case of inheritances in which there is more than one heir, it is possible that some of them, exercising the rights that assist him, demand the rest that is in terms of their desire to keep or renounce the inheritance. Under this circumstance, the accused will have a period of 30 continuous days to express their will. Having met this deadline, if they do not make the resignation, it may be considered that it has been accepted.
What taxes are applied to the renunciation of inheritance?
The specific taxes on the act of renunciation of inheritance depend on the specific situation:
- In the event of a pure and simple resignation of the inheritance, the renouncer will not be subject to any taxation. In this case, the resignation is made free of charge and the assets, rights and obligations of the inheritance are granted to anyone established by law. In these cases, the taxpayer of the Inheritance Tax will be the person who benefits from said waiver.
- In case of renouncing a favor of a specific person, it is a translational resignation. This modality is a rights session and not a waiver. It requires that the renouncer have previously acquired title to the inheritance. In this case, the inheritance tax will be required from the renouncer, without prejudice to the obligation to settle other taxes for the session or donation of the renounced goods.
- If the resignation is made once the obligation of the Inheritance Tax has been prescribed, which is four years, it is still considered a donation in favor of the rest of the heirs who have accepted and therefore it will remain subject to the Inheritance and Gift Tax, in the donation modality.
As you have been able to verify, the waiver of inheritance can lead to specific doubts of the specific circumstances of each case. If you are an heir and need advice on this matter, at Sky Marketing we can help you to effectively waive the inheritance. Do not hesitate to contact us directly, we will help you to adequately resolve your concerns. We will be delighted to assist you!