What is the inheritance of a deceased person?

The death of a person is a complicated situation in every sense of the word for those close to them. Beyond sentimental issues and personal ties with them, shortly after their death, the time comes to deal with the question of inheritance, around which countless doubts arise. On this occasion, thanks to our team of family lawyers, we would like to explain to you what exactly is meant by the concept of inheritance and everything related to it.

How to make a will

First of all, in order to establish a starting point from which to explain more clearly the concept of a will, we would like to explain, very briefly and quickly, how to make a will. In general terms, both concepts depend on each other.

A will is a legal document signed by a notary in which the testator's wishes regarding his or her estate as of the moment of his or her death are represented. In other words, it states who the beneficiaries are and what share each one has. 

In order to make a will, it is essential to go to a notary. In fact, in most cases, the testators come to them with sketches of their last will and testament, and this professional is responsible for giving them legal form for subsequent validation. In general, this is known as an open will, which is the most common and, at the same time, the most secure of all the types contemplated by law.

What does "inheritance intestate" mean?

It is important to start from the premise that, in order for a person to be considered the heir of another person after his or her death, two provisions must be fulfilled. The first of these is to have a right to the inheritance, which can be acquired by having a first-degree family relationship (parents and children, for example) or by testamentary disposition. The second is the acceptance of the inheritance, the moment from which the condition of heir is accepted and all the consequences that this entails.

Once this has been explained, it is time to define the concept of a "recumbent inheritance". Specifically, this is the situation in which the estate is left between the time when the owner dies and the time when his or her successors accept to be heirs to the estate. This is the period during which the beneficiaries can decide whether to accept or repudiate the inheritance, which is usually the case when the liabilities associated with the inheritance, i.e. the debts, are greater than the assets that make up the estate.

It should also be borne in mind that, in the event of accepting the legitimate inheritance, the heir must do so with all that this entails, i.e. with all its associated debts. However, if he/she prefers, he/she can wait until the debts are paid and then apply for ownership of the assets. This is known as accepting the inheritance with benefit of inventory. 

Who administers the estate during the phase of the inheritance?

Once the will has been read and it has been established how the inheritance will be distributed, before it is accepted or not by the heirs, there must be a figure in charge of administering their estate. This is mainly because the inheritance, in itself, is a subject full of obligations and rights that can be a party, if required, to actions and legal proceedings. It also has the capacity to enter into contracts in its own name and to hold title to certain assets. Obviously, there must be a physical subject to be called upon in case of vicissitude.

In order to determine the administrator in matters of wills and inheritance, the first thing to do is to refer to the will established by the deceased. However, if the deceased has not specified before his death who is to perform this function, the Civil Code provides for the figure of the executor in Article 892. 

The functions of the executor are very broad, although they may be limited to what was established by the deceased in his or her will. To give you an idea, in the event that the executor has not set any limitations to his functions, he has the power to pay, through the estate, the testator's funeral, as well as those legacies that are made up of cash. He shall also supervise all phases of the execution of the will and shall keep custody of the assets until the will comes to an end.

In the event that there is no executor designated in the will and the heirs do not agree on his or her designation, a judge will be responsible for appointing a person to hold the position or, failing that, a judicial administrator with similar powers. 

 We at G. Elias & Muñoz Abogados hope that we have been of help to you in resolving your doubts regarding the concept of a "recumbent inheritance". We are sure that, from now on, you will understand it better and know how to deal with such a situation.