Receiving an inheritance is something we normally regard as beneficial; however, the Civil Code allows us to choose between accepting it or rejecting it. Now, it is worth asking: why disclaim an inheritance?
The number of people who choose this option increased during the economic crisis, because it was not worthwhile to accept substantial inherited debts that exceeded the assets, or because the succession taxes were high. For this reason, let us look at some aspects of this dilemma.
What is the disclaimer of an inheritance in Santander and what is its scope?
The law grants the heir the right to freely reject the succession before having accepted it. To exercise this right, it is an indispensable requirement that the death of the person who held the assets and obligations making up the inherited estate be certain. An express statement is also required, by public deed before a Notary.
In addition, the renunciation is total; you cannot disclaim one part of the inheritance and keep another.
This means that the part of the inherited estate that corresponded to the disclaiming party passes to whoever the testator has provided for. If there is no such provision in the will, or in the absence of a will, it will be distributed among the other heirs according to the order established by law.
Finally, it is important to clarify that the disclaimer cannot be subject to any condition. For example, it cannot be made subject to the occurrence of future and uncertain events.
Consequently, whoever rejects the inheritance is freed from all the debts and taxes tied to it, but they and their respective heirs also lose all rights over the assets, which is why it is advisable to weigh up the options that the law allows.
Do you have to pay taxes for disclaiming the inheritance?
Disclaiming the inheritance in Santander means that we do not acquire any rights over it, since we have not accepted it. For this reason we do not have to pay inheritance tax.
However, it is important to distinguish the cases in which, once the inheritance has been accepted (expressly or tacitly), we decide to renounce it in favour of a specific person (translative renunciation). In this case, if we have received a price in exchange, we must pay the tax on Onerous Property Transfers and Documented Legal Acts. If we did so free of charge, we must pay gift tax.
How long do I have to reject the inheritance?
Our Civil Code does not set a deadline for the disclaimer. Nevertheless, the legislation provides that any interested party may request, through a notarial requirement, that the heir state within a period of thirty days whether they accept or disclaim the inheritance; if they do not respond, it is deemed accepted purely and simply (art. 1005 of the Civil Code, as worded by Law 15/2015).
In this case, interested parties may approach the Notary to notify the heir that they must accept or disclaim the succession within thirty days, with the warning that, if they do not, they will be accepting the inheritance purely and simply.
This means that, if we want to avoid an inheritance whose debts exceed the assets, we must expressly disclaim it within that period or accept it under benefit of inventory. This is to avoid merging it with our own estate. Otherwise, the law presumes that we have accepted it simply and we will have to answer for such obligations with our own assets.
Other options to avoid inheriting debts
Pure and simple acceptance of the inheritance means that the accepting party’s estate merges with the inherited one, so that, if necessary, this heir will answer for the inherited debts with their own assets.
The Civil Code gives us different possible courses of action in the face of a succession that comprises both assets and obligations. While the disclaimer is the option that best protects us from inherited debts, there is also the possibility of accepting under benefit of inventory.
This last option offers the advantage of not merging our own estate with the inherited liabilities and, eventually, keeping rights over the remaining assets after paying the creditors with the assets of the estate.
Acceptance under benefit of inventory in Santander: how is the procedure carried out?
Acceptance by this route is a good option to protect yourself in case the debts of the inheritance are greater than the assets. Likewise, it is worth making clear that drawing up an inventory of the inheritance does not imply accepting or rejecting it; it is rather an assessment stage.
The application must be made by notarised document within the ten days following the knowledge of being an heir (thirty if resident outside Spain).
An inventory of the assets making up the inheritance must also be drawn up within the 6 months following the death. It is very important that no assets or rights are left out of it, since the penalty for failing to meet these requirements will prevent the benefit of inventory from being obtained.
Subsequently, the creditors will be paid with the assets of the succession and, if any assets remain, they will be distributed accordingly.