February 02, 2024

Rights of heirs and renunciation of inheritance

In this article, we will consider key aspects of the legal position of heirs under the Succession Act. The main objective is to provide a clear insight into the processes and obligations that succession entails for heirs.

Opening of the inheritance

The inheritance is opened by the death of a person or his or her proclamation as a deceased. The day of the opening of the inheritance of the person who was declared deceased is considered to be the day when the decision on declaring the person dead became final, if the decision itself does not specify another day as the day of death.

The heir can only be a person who is alive at the time of the opening of the inheritance. A child already conceived at the moment of the opening of the inheritance will be assumed to have been born if born alive. Legal entities are also capable of inheriting on the basis of wills, as well as acquiring rights to records and being the beneficiary of testamentary dispositions, unless something else is stipulated by a special law.

Unworthiness for succession

He is unworthy to inherit, both by law and by will, as well as to receive anything on the basis of a will:

1. the one who intentionally killed the deceased, or attempted to do so;

2. the one who, by force or threat, caused the deceased to make or revoke a will or a testamentary provision, by force or threat, or prevented him from doing so;

3. the one who destroyed or hid the deceased’s will with the intention of preventing the fulfillment of the testator’s last will, as well as the one who forged the testator’s will;

4. one who has severely violated his maintenance obligation towards the testator under which he had a legal maintenance obligation, one who did not want to provide the testator with the necessary assistance, which he could have provided him without danger to his own life, or left him without assistance in circumstances that were dangerous to life or health.

Unworthiness does not bother the descendants of the unworthy and they inherit as if he died before the deceased. Unworthiness ends with the testator’s indulgence given in the form prescribed for the validity of the will. Unworthiness is taken care of ex officio, except in the case of dismissal of maintenance obligations, failure to provide necessary assistance and abandonment of the deceased without assistance in circumstances that are dangerous to life or health.

Moving the estate to heirs

At the time of the deceased’s death, the heir acquires the right of inheritance and the estate of the deceased person passes to him by force of law, thus becoming his inheritance. At the same time, the heir acquires other rights and obligations relating to his or her status as heir, unless anything else arises from their legal nature. The heir remains the heir permanently, unless he validly waives his inheritance right (renunciation of succession).

Disclaimer of inheritance

An heir may waive his succession by a publicly authenticated statement or by a statement given to the record with the court pending the decision on succession. This renunciation also applies to the descendants of the one who renounced, if the denier has not explicitly stated that he is renouncing only in his own name. If the denier’s descendants are minors, this waiver does not require the approval of the authority responsible for custody affairs. An heir who has renounced in his own name is considered as never to have been an heir. If all heirs belonging to the nearest order of succession at the time of death of the deceased are waived, heirs of the next order of succession are invoked for succession. In the event that the other heirs of the first order of succession are waived, the spouse shall remain in the first order of succession.

If the heir died before the end of the probate hearing and did not renounce the inheritance, the right of renunciation passes to his heirs. The same applies in the case where the heir died after the end of the probate hearing and before the first instance decision was made.

Who can not give up the inheritance

An heir who had an inheritance or a part of it cannot be renounced. The measures taken by one heir only to preserve the estate, as well as the measures of the current administration, do not deprive him of the right to renounce the succession.

Content of the declaration of renunciation of inheritance

The waiver of succession cannot be partially or conditionally provided. The waiver of inheritance does not apply to subsequently found property. A waiver in favor of a particular heir is not considered a waiver of succession, but a declaration of the assignment of his inheritance.

A declaration of waiver of succession or acceptance of succession cannot be revoked, but may be challenged under the general rules on the contestation of legal transactions due to defects of will.

Statute of limitations to claim estate

The right to claim the estate as the heir of the deceased towards an honest possessor who also claims to be entitled to it as an heir becomes obsolete for one year from when the heir became aware of his right and of the holder of the estate, and no later than ten years counting for the legal heir from the death of the testator, and for the willable heir from the declaration of the will. According to the unfair possessor, this right becomes obsolete by twenty years.

Liability of the heir for the testator’s debts

The heir is liable for the deceased’s debts. An heir who has waived the succession is not liable for the deceased’s debts. The heir is liable for the deceased’s debts up to the value of the inherited property, with the amount of the value of the inherited property and the value of the testator’s debts already settled by the court paying only attention to the objection of the heir.

When there are more than one heir, they are liable in solidarity for the deceased’s debts, each up to the value of his inheritance share, regardless of whether the division of the inheritance is made. Among heirs, debts are divided in proportion to their hereditary parts, unless otherwise provided by the will. The subject of enforcement for the purpose of obtaining or securing claims of the testator’s creditors towards the municipality or city to which the estate has passed may be only things and rights that are an integral part of the estate.

Separation of the estate

The testator’s creditors may require within three months of the opening of the inheritance that the estate be separated from the heir’s property, if they make probable the existence of a claim and the risk that they would not be able to settle their claim without separation. In this case, the heir cannot dispose of the things and rights of the estate, nor can his creditors be collected from them, until creditors who requested separation are charged.

The deceased’s creditors who have requested this separation may collect their claims only from the funds of the estate. A separate estate can be appointed by a court of custody. At the request of the testator’s creditors, the court may order the safekeeping of the separate estate. The costs of entrusting the estate for safekeeping are to be borne by the creditors who requested it. If the creditor who requested separation does not have an enforceable document or if he has not already initiated proceedings in order to achieve his claim, he is obliged to initiate proceedings for the purpose of obtaining the claim within the time limit set by the court by the decision on separation of the estate. If the creditor fails to initiate the proceedings to which he is referred within the time limit set for him, the court shall, ex officio, repeal his decision on the separation of the estate. The court decides on the creditor’s request by a decision in probate proceedings. The appeal against that order does not delay its implementation.

Successor union and its dissolution

The heirs jointly manage the inheritance property until the division is made.

There is a right to seek the dissolution of the successor community. Pending the determination of how many parts of the right of succession belong to individual heirs, the co-heirs manage and dispose of everything that constitutes an inheritance according to the rules by which the joint owners manage and dispose of things, except what is entrusted to the management of the executor of the will or guardian of the estate. After it is determined how many parts of the inheritance right belong to individual heirs, until the dissolution, the co-heirs manage and dispose of everything that was until then common according to the rules by which the co-owners manage and dispose of things, except what was entrusted to the management of the executor of the will or guardian of the estate.

Dissolution may require any co-heir. Null and void is the testator’s provision prohibiting heirs from ever dissolving the community. Dissolution shall be carried out with the appropriate application of the rules on the dissolution of co-ownership and the effects of dissolution, if the will or this Law does not specify anything specifically.

Assignment of hereditary part before division

Any heir may transfer his inheritance share, in whole or in part, to the co-heir before division. A contract for the transfer of a successive part is valid only if it is drawn up in writing and:

– certified by a judge of the competent court, or

– drawn up in the form of a notarial act, or

– confirmed (solemnized) by notary public. The heir’s contract with a non-heir on the assignment of the heir’s share only obliges the heir to hand over his share to the interlocutor upon the division; by it, the interlocutor does not receive any other right to the division.

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