Someone has passed away and we have found out that we have some right to his inheritance. In this situation, is it necessary to go to the notary?
First of all, it’s worth noting that the answer will be given based on Spanish law, so, under certain circumstances, this might change for a foreigner. However, it’s not unusual to have to apply these rules even when dealing with the inheritance of someone who isn’t Spanish.
Before anything else, we must consider whether we want to receive what we are entitled to or not. It is also convenient to distinguish between heirs and legatees. The heir succeeds the deceased in general terms, that is, in his rights, but also in his obligations. On the contrary, the legatee only receives one or more specific things, so he does not have to face the possible debts that the deceased had. Therefore, in principle, the normal thing will be that the legatee always wants to receive what corresponds to him while the heir will assess whether it compensates him or not. However, it may also happen that the legatee is not interested for different reasons, for example, for not being able to pay the inheritance tax.
In any case, for the purposes of our question, if the heir decides to reject the inheritance, he must necessarily do so before a notary. This is established in article 1008 of the Civil Code (CC) when saying: “Rejection of the inheritance must be made before a notary in a public document”.
And what about the legatee? Unfortunately, this circumstance is not specifically regulated, which has led to different theories. Although it has been maintained that it is not necessary to reject a legacy in a public document, some courts have understood the opposite, since article 1280 CC establishes: “The following must be set forth in a public instrument: […] 4º The assignment, rejection and waiver of inheritance rights or those pertaining to the marriage property community.”
In short, whether it is an heir or a legatee, if you want to reject what you are entitled to, it will be mandatory or, at least, recommended, to do so in a public document before a notary.
Having cleared this, we still have to analyse the other side of the coin, that is, if instead of rejecting, you want to accept what you are entitled to. In this sense, article 999 CC indicates: “Absolute acceptance may be express or implied. Express acceptance is that which is given in a public or private document. Implied acceptance is that which takes place as a result of act which necessarily entail the will to accept, or which the person would not be entitled to perform without the condition of heir.”
Therefore, it is clear that it will not be necessary to go to a notary to accept the inheritance, since it can even be accepted tacitly. So why is it so common to go to the notary and incur in an added expense?
First, the notary performs advisory functions that can be very useful in complex inheritances. However, this role can also be performed by a lawyer. On the contrary, what a lawyer cannot do is create a public document, something that, despite not being necessary to accept the inheritance, is necessary to be able to register it in the Property Registry. This means that whenever there are rights that can be registered in the registry –related to real estate–, it will be necessary to go to the notary so that they can be registered. As it is extremely common to want to register –especially if there’s a possible subsequent sale– almost every time there are properties included in the inheritance a notary will end up intervening.
However, it should be noted that there is an exception to the need for a public document to be able to register in the registry. Article 14 of the Mortgage Law establishes: “When there is only one heir, and there is no interested party with the right to preferential rights, nor is there a commissioner or person authorized to award the inheritance, the title of the succession, accompanied by the documents referred to in article sixteen of this Law, will be enough to register directly in favour of the heir the assets and rights of which the deceased was the holder in the Registry.”
That is, if there is a single heir, he may register in his favour by presenting the documents required by article 76 of the Mortgage Regulation –death certificate, certificate of the General Registry of Last Will Acts, and testament– by making a private request. Therefore, it will only be necessary to go to the notary to obtain a copy of the will.
As for the legatee who wishes to accept the legacy, the same happens as with its rejection since it is not specifically regulated either. However, the general rule is to understand that no acceptance is necessary, since the property of the thing bequeathed is automatically acquired from the death of the testator –articles 881 and 882 CC–. Another issue is the one relating to the possession of the thing bequeathed which, in principle, corresponds to the heir to deliver it to the legatee –article 885 CC–. In any case, for the purposes of the initial question, it can be stated that no, it is not necessary to go to the notary to accept a legacy. However, we are in the same position as with inheritance, and that is, if we want our right to the thing bequeathed to access the registry, we must obtain a public document for its registration.
In short, whatever our rights in an inheritance, if we want to reject them, we will go to the notary to do so. On the contrary, when we want to accept, it will not be necessary unless we want those rights to be registered in the Property Registry.
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