Accepting or renouncing an inheritance in Spain: benefit of inventory, time limits and the heir who will not answer

Three ways of answering an inheritance

A person called to an estate may accept it unconditionally, accept it under benefit of inventory, or renounce it (arts. 988 and 998 CC). All three decisions are irrevocable, except where consent was vitiated or an unknown will comes to light (art. 997 CC), and it is not possible to accept part and renounce the rest, or to accept subject to a condition (art. 990 CC). That is why the decision should be taken with the inventory and the debts in front of you, not on instinct. Note that in Spain the heirs inherit directly, debts included — there is no personal representative standing between the estate and the beneficiaries as there is in England.

• Unconditional acceptance: the heir steps into the deceased’s position in everything, debts included, and answers for them with their own assets if the estate does not cover them (art. 1003 CC). It may be express (by deed or in writing) or implied, through acts that only make sense if the person is an heir: selling an asset of the estate, collecting a debt owed to it, dividing it up (art. 999 CC). It is easy to accept without meaning to.
• Acceptance under benefit of inventory: the heir answers for the debts only out of the inherited assets, which are not mixed with their own (art. 1023 CC). It has to be done in the right form and within the time limits (arts. 1010 et seq. CC).
• Renunciation: it must be done before a notary (art. 1008 CC), it is irrevocable, and it takes effect as from the date of death. The person who renounces is out of it as if they had never been called.

Benefit of inventory, done properly

This is the tool for inheriting without risk where it is not clear whether the estate has more debts than assets, or where the deceased was a company director, a guarantor, or had litigation on foot. It is applied for before a notary, and the notary draws up the inventory of assets and debts, with creditors and legatees called to attend (arts. 1011 and 1014 CC).

The time limits are strict and easily lost: if the heir has assets of the estate in their possession, they must apply for the inventory to be drawn up within thirty days of learning that they are an heir (art. 1014 CC); if they do not, they have thirty days from the expiry of whatever period the notary gave them to accept (art. 1005 CC), or from accepting or dealing with the estate as an heir (art. 1015 CC). The inventory must be begun within thirty days of the notice and completed within sixty, extendable to a year in justified cases (art. 1017 CC). Anyone who lets the time limits pass through their own fault answers for everything (art. 1018 CC); the thirty-day period also runs from the moment they deal with the assets as an heir (art. 1015 CC), so it is best applied for before touching anything.

Renouncing: when it makes sense and what it does

Renouncing makes sense where the debts clearly exceed the assets, or where the heir wants their share to pass to others. It is worth knowing that:

• A plain renunciation means the share of the person renouncing passes to whoever is entitled under the will or by law (substitutes, co-heirs by accretion, or the next in line on intestacy). The children of the person renouncing do not take their place in the intestate succession, because a living person cannot be represented except in cases of disinheritance or unworthiness to inherit (art. 929 CC); if everyone in the same degree renounces, those in the next degree inherit in their own right (art. 923 CC), and the will may provide for substitution by the descendants (art. 774 CC).
• A renunciation in favour of a named person is not a renunciation at all but an acceptance followed by a gift (art. 1000 CC), with the tax that goes with it. The difference in tax is significant and has to be decided before anything is signed.
• If an heir renounces to the prejudice of their own creditors, those creditors may apply to the court for authority to accept in their name up to the amount of their claims (art. 1001 CC).
• A person who renounces the estate does not collate what they received during the deceased’s lifetime, although their gift is still computed for the others’ forced share.

The heir who neither accepts nor renounces

It takes only one of those called to say nothing for the estate to be blocked for years: it cannot be divided, the properties cannot be sold and the tax deadlines keep running. The law provides a quick and little-known solution, the notarial request under article 1005 of the Civil Code: any interested party may call on the heir, through a notary, to accept or renounce within thirty calendar days. If they do not reply, they are treated as having accepted unconditionally, and from that point the division can go ahead and, if they resist, the judicial division of the estate.

The request has to be done properly: to the right address, with an express warning of what silence means, and with proof of service. It is an inexpensive step and it usually unblocks estates that have been stuck because a brother or sister «wants nothing to do with it».

Practical points worth settling early

• Inheritance tax: the six-month period runs from the death, whether or not anyone has accepted. An extension can be applied for within the first five months.
• Life policies with a named beneficiary are not part of the estate: they are paid out even to someone who renounces.
• Bank accounts: taking money from the deceased’s account to pay for the funeral does not amount to acceptance, but using the balance for other purposes may well do.
• Minors and people with support measures: renouncing on behalf of a minor child requires judicial authority, and if the judge refuses it the estate can only be accepted under benefit of inventory (art. 166 CC); guardians and curators with powers of representation also need authority to renounce, or to accept without benefit of inventory (arts. 271 and 287 CC).

Deadlines worth not letting slip

• Thirty days to apply for benefit of inventory where assets of the estate are already in your possession (art. 1014 CC); sixty to complete the inventory (art. 1017 CC).
• Thirty calendar days is what an heir served with a notarial request has to accept or renounce; silence counts as acceptance (art. 1005 CC).
• Six months for inheritance tax from the date of death, with an extension if applied for within the first five.

Where we work

Our office is in Villanueva de la Cañada, and we regularly act in Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón, Brunete, Villanueva del Pardillo, Valdemorillo and the rest of western Madrid. Succession proceedings are heard by the court for the place where the deceased was last domiciled, not where the heirs live: if you live outside the area, or outside Spain, that is no obstacle to our handling the case. This guide forms part of our inheritance and succession practice in Villanueva de la Cañada.