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INHERITANCES, everything that can go wrong.

What if you have a lying inheritance?

Family Law
INHERITANCES, everything that can go wrong.

Every time a person dies, the inheritance process begins. At this point, the procedures for an inheritance can become complicated. For this reason, it is necessary that you consult with lawyers before accepting an inheritance.

What is a recumbent inheritance?

The recumbent inheritance is the situation in which the inheritance is found from the death of the deceased until the acceptance or repudiation by the heirs of the inheritance. During this period all the assets that comprise the inheritance are considered lying inheritance and have no owner.

The recumbent inheritance must be attended to, in the interest of the heir and the creditors of the inheritance, who this alien circumstance must not modify their rights and guarantees. The administration may be legal or may have been previously contemplated by the deceased, naming the executor or administrator of the inheritance in his will. In the absence of these, the heirs can carry out all the necessary acts for the conservation of the inheritance.

There are certain circumstances that cause this situation, of the lying inheritance, to be prolonged in time, such as these assumptions:

- Legal or voluntary appeal in favor of the concepturus. It is considered by the Civil Code, born to the conceived in everything that is favorable to him, therefore if he is born he will be heir, and this situation will have to be addressed, without the division of the inheritance being able to occur, although by court order he will be you will be able to pay creditors.

- Call for a legal person not yet constituted. It is a transitory situation that must be taken into account and paralyzes the inheritance procedures until the future heir legal entity is constituted.

- Appeal of heir who uses his right to deliberate. Every heir has the right to examine the status of the inheritance before deciding how to accept or renounce it. The Civil Code establishes that the heir who wants to use this right, must notify it before a Notary Public, as well as the heir who intends to accept the inheritance for the benefit of inventory, will have 30 days, from knowing that he was heir, to formalize the notarial inventory with summons to creditors and legatees so that, if it suits them, they can witness it. The Notary will adopt the necessary measures for the administration and custody of the estate in accordance with the provisions of the Civil Code and legislation.


To accept an inheritance it is necessary to have full capacity to act, that is, to have free disposal of his assets. For those who do not have their full capacity to act, it is necessary to act with a legal representative. If the heirs are minors, they will accept their holders of parental authority for the benefit of inventory. For the assumption that you want to accept purely and simply, a judicial authorization is necessary.

It is common to confuse the acceptance of the inheritance with the participation of the inheritance, these acts are related but are different. Acceptance is the voluntary and free act by which a person called to an inheritance expresses his will to accept it, once accepted the condition of heir is acquired, but not of owner of the hereditary mass. On the other hand, participation is the act for which the heirs who have accepted the inheritance divide the assets of the inheritance, acquiring them as property.

And what ways are there to accept inheritance? There are two different ways:

- Acceptance pure and simple. By this modality, the assets of the inheritance and its debts and responsibilities are accepted. The heir is liable for all debts that may exist in the inheritance with the assets of the inheritance and with his own assets.

- Acceptance for the benefit of inventory. This modality has limited effects, since the heir responds for the debts of the inheritance only with the hereditary patrimony.


It is convenient to bear in mind that it is not the same that the inheritance of a deceased is in bankruptcy, that an inheritance is declared in bankruptcy after the death of the deceased, without the latter having requested or declared it in bankruptcy. To request the declaration of insolvency of the inheritance not accepted purely and simply, the administrator of the lying inheritance, the heirs and the creditors of the deceased debtor are legitimized.

If the inheritance had been declared in bankruptcy prior to the deceased's death, the bankruptcy proceedings will continue, unless their heirs purely and simply accept the inheritance and possess sufficient assets to defray the debts of the deceased.

When we are faced with a recumbent inheritance declared in bankruptcy, we can find ourselves with several situations, depending on the decision of the heir:

-That the heir purely and simply accepts the inheritance, which, as we have previously anticipated, if his patrimony is sufficient to cover the debts of the deceased, the bankruptcy procedures will end.

- That the heir accepts for the benefit of inventory. In this case, the bankruptcy will not end, the inheritance will continue to remain undivided and under bankruptcy administration.

- There are several heirs and some accept purely and simply and others for the benefit of inventory. Those who accepted the benefit of inventory will see their liability for the debts limited only by the part of the inheritance that would correspond to them.

It is advisable that the procedures of an inheritance be carried out by a lawyer, since unfortunately problems often arise, in Audacia Abogados you will find all the necessary legal assistance, requesting an appointment here.

Family Law

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