Between the opening of the succession and the acceptance and acquisition of the inheritance by the heirs, there is a period of time, more or less long, during which the entire legal relationship of the inheritance lacks an owner; using terminology from Roman law, this is called a vacant inheritance. In other words, a vacant inheritance is always present in an estate until it has been accepted by those who hold the rights to inherit.
The estate in abeyance arises with the death of the deceased and is extinguished with the acceptance of the heirs or the repudiation of those called to inherit, which will give rise to what is known as a vacant estate.
The factual scenarios in which the situation of an unclaimed inheritance most commonly arises are: when the testator has named as heir a conceived child who has not yet been born or a child who has not yet been conceived; when a foundation that is yet to be established has been named as heir; when the heir has been named conditionally; when the heir is an unknown person; and when the heir has not yet expressed their acceptance or rejection of the inheritance. This expression (unclaimed inheritance) is mostly applied to the last scenario.
Since the estate may remain unclaimed for an extended period, it is necessary to appoint an administrator to manage the estate and ensure its preservation. The testator typically appoints an executor to manage the estate; otherwise, the judge may, either on their own initiative or at the request of a party, order the intervention of the estate and determine the appropriate course of action regarding its administration. In the absence of an administration established by the testator, by law, or by court order, the heir(s) are entitled to perform acts of mere preservation or provisional administration of the estate, without this implying tacit acceptance of the inheritance.
Given the length of the probate process, in most cases it will be necessary to declare the existence of the unclaimed estate to the Tax Agency, along with its income, expenses, etc., especially if the deceased was engaged in economic activity. For this purpose, a census declaration (form 037) must be submitted to the Tax Agency, accompanied by specific documentation proving the existence of the unclaimed estate, the list of heirs, and their respective percentage shares, consisting of:
In the case of testamentary succession, the following will be provided:
– Photocopy of the certificate issued by the General Registry of Last Wills and Testaments.
– Photocopy of the will (it must match the one recorded in the General Registry of Last Wills and Testaments).
– To determine the heirs and their share, the testator's wishes must be followed: if the heirs are designated by name, a photocopy of their national identity document or other proof of identity must be provided. If the heirs are designated generically (for example, son, grandson), a document proving this relationship must be provided.
– Written statement signed by all heirs indicating that the inheritance has not been accepted.
In the case of intestate legal succession, the following will be provided:
– Photocopy of the certificate issued by the General Registry of Last Wills and Testaments.
– When the only intestate heirs are descendants, ascendants or spouse of the deceased, the declaration of heirs will be obtained through a notarial act.
– Written statement signed by all heirs indicating that the inheritance has not been accepted.
In either case, a photocopy of the NIF of the person signing the census declaration must also be provided, and this person must be one of the heirs, or their representative, in which case a photocopy of the document proving this must be included.
Upon registration, the Tax Agency will assign a tax identification number (NIF) to the unclaimed estate, so that it:
• You will now be able to conduct business using your name and assigned tax identification number.
• You will submit the corresponding declarations (VAT), entering the corresponding amounts.
• And the payers will withhold the tax from the estate itself, indicating their name and tax identification number in the corresponding annual summary.
In other matters, it is important to note that creditors can claim against an unclaimed inheritance. In this regard, the Supreme Court's jurisprudence recognizes that an unclaimed inheritance can be sued for and, due to the interim nature of its ownership, requires that there be individuals in charge of its administration (through executors or testamentary or judicial administrators) with the power to act in various legal proceedings. Article 6.4 of Law 1/2000, of January 7, on Civil Procedure, establishes that estates, such as unclaimed inheritances, have the capacity to be parties to legal proceedings, appearing through their administrators.
Finally, it should also be noted that an unclaimed estate can be declared bankrupt when it has not been accepted unconditionally (Article 1 of Law 22/2003, of July 9, on Bankruptcy). Accordingly, in accordance with Article 3.4 of the latter Law, "the creditors of the deceased debtor, their heirs, and the estate administrator may request the declaration of bankruptcy of the estate not accepted unconditionally." A request made by an heir will have the effect of accepting the inheritance with the benefit of inventory.
Olga García
Civil/Criminal Area
Àmbit Assesor
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