The process of an inheritance is complicated. In addition to the emotional burden that the heir and his family may be suffering, the fact that it is necessary to process the inheritance or will itself is added. Although it may seem so, it is not a quick process; Many factors need to be reviewed and taken into account. One of them, and the first that may arise, is a state unknown to many people: the recumbent inheritance. This is a specific period in the inheritance process of any heir present in the will. We explain everything you need to know to be able to face this period with as much information as possible.
All about the recumbent heritage.
Many films or fiction series imply that an inheritance is processed immediately after the death of a person, that as soon as he dies all his heirs go to the notary and the next day they have all can take possession of their new assets or have the inheritance completely processed.
However, there is a time when inheritance does not belong to anyone.
: the recumbent inheritance. This is the name given to the period of time between the death of a person and the acceptance of his inheritance by the heirs. During this phase the heirs have not yet taken possession of the inheritance, it is not their property. This has no owner, so the heritage is considered recumbent heritage, hence its name.
The inheritance, therefore, is ‘stopped’ and the estate of the deceased maintains its autonomy and cohesion. The ownership of assets, rights and obligations is in a state of irresolution. All inheritances go through this state until their heirs accept or reject them. This includes all the hereditary assets existing at the date of death of the person (movable property (money, cars …), real estate (homes, plots …) and debts (mortgages, loans …) ). Recumbent inheritance has no regulation in the civil code. It is only referred to in Article 1934 of the Civil Code.
Being in a kind of temporary ‘limbo’, the recumbent inheritance has no title. Therefore, nothing belongs to anyone yet. It is important to note that this state is transitory and can only last until the inheritance is processed. When it happens and, if they accept, the heirs will become owners and holders of the deceased person’s property. If, on the other hand, they reject the inheritance, it will become part of the State. How long this period lasts depends entirely on the situation of each family. In short, the recumbent inheritance ceases to be so as soon as his heirs accept it.
Can they force you to claim it?
Although the law does not stipulate anything about the duration of the recumbent inheritance, it does establish the limitation period to claim an inheritance: the heir has a period of 30 years to accept it from the death of the person. This is too long to demand it, so The Civil Code allows some people to require the heir to resolve the inheritance situation within a certain time. These are very particular cases in which there are third parties involved who, for work or personal reasons, need a response from the heir in the shortest possible time.
This means that, therefore, a person interested in the inheritance can oblige the heir to accept or renounce it through the intermediary of a
notary.
. Applicants are usually legatees (persons appearing in the will appointed by the will of the testator), creditors or persons who have some interest in the estate. Once the process is launched, the notary will inform the heir that he has 30 days to accept or renounce the inheritance. If he does not answer after this period, it is understood that he accepts it.
Creditors and the recumbent inheritance.
LThe decedent’s creditors can claim debts left after their death. The recumbent inheritance does not have legal personality, but it does have legal capacity. Therefore, a creditor can judicially claim his debt against the inheritance and against the recumbent heirs. It is the job of executors or probate administrators (appointed by the deceased in his or her will) to defend the estate. If the testator did not leave a will or did not appoint an administrator of the will, the defense corresponds to the possible heirs (recumbent heirs).
Process of renunciation of the recumbent inheritance.
As discussed above, recumbent inheritance can be accepted or rejected. If the second option is chosen, the heir must expressly and formally indicate his or her willingness to renounce the inheritance. It shall acquire neither the assets, rights nor obligations of the estate of the estate. This option is usually the most common when debts and obligations exceed the assets of the estate. There is, however, the option for the heir to accept the inheritance to Inventory Benefit. In this case, he would take possession of the inheritance without compromising the personal patrimony.
To carry out this operation, the interested party must go to the notary public and, andn the same act of acceptance of the inheritance, add the clause that establishes the condition for the benefit of inventory. When the heir owns part or all of the estate, he has 30 days to request the notarial inventory, after summoning creditors and legatees, who must witness the act. If the heir does not have an inheritance (either complete or partial), 30 days will be counted from the day after the expiration of the period set for accepting or rejecting the inheritance.
Who administers the recumbent estate?
While the inheritance is in the recumbent phase, it has a wealth manager, which can be of 3 types:
- Administration derived from the law itself.
- Judicial appointment.
- Executor of the deceased’s will.
The executor may use the estate to pay for funeral expenses or to deliver bequests in cash. You can also supervise the execution of the will and the custody of the property. If the estate has no will, the administrative function passes to the recumbent heirs or future beneficiaries of the estate.
How is this inheritance taxed?
During the period of recumbent inheritance, the assets are attributed to the heirs. Therefore, and before the law (article 11 of the LIRPF 35/2006, of November 28), capital gains and capital gains and losses will be their responsibility. The law understands that, unless they renounce the inheritance, it is the heirs who must take care of the settlement of the corresponding taxes.
Each of them must declare in their personal income tax self-assessment the income generated by the assets of the deceased’s estate. Let’s take an example: there are 4 heirs and the deceased person has left € 100,000 in a bank account. If this amount has generated a return of € 1,000, each of the heirs must declare in their personal income tax a return on movable capital of € 250 (the proportional part of each).
But the recumbent heritage is not spared problems. When rented premises or dwellings are left out, the situation is particularly complex, since each one must declare its proportional share, but several invoices cannot be issued for the same taxable event. Only one invoice can be issued with the same NIF. In these situations, the heirs usually go to the Tax Agency and register as a recumbent inheritance for the purpose of providing a single NIF. Once obtained, it can be operated for tax purposes. Each heir will declare in his income the proportional part as income of the real estate capital.
Always, even if the inheritance is temporarily recumbent, you must comply with the liquidation and payment of taxes levied on acquisitions by inheritance, which are:
- Inheritance tax. It is settled in the autonomous community of residence of the deceased. 6 months are given for this procedure from the death of the person, extendable to another six, (generating interest).
- The municipal capital gain. There is also a period of 6 months for the procedure (also extendable if necessary).
Recumbent inheritance and hereditary community.
Near the end of this article we believe it necessary to provide one last fact: the difference between the recumbent inheritance and the hereditary community. The first we have already defined: it is the stage that occurs from the death of the heir to the acceptance of the inheritance. However, if this is received and the heirs do not have a legitimate right to specific hereditary assets, but to all of them, we speak of hereditary community. Therefore, this appears when the deceased leaves his assets to more than one heir without making a specific distribution.
It is very important to be clear about the meanings of both terms, not to confuse them and to know when each of them occurs. In these situations we recommend having an adequate legal team. In
Blegal
has more than 30 professionals willing to listen to you and put at your disposal all the information and measures to solve any
doubts
or problems that may arise during your legal procedures.
For information on related topics visit our Inheritance page.
