Inheritance Laws and Regulations
Inheritance
Inheritance is the succession to all assets, rights, and obligations of the deceased that are not extinguished by death. It is conferred by the will of the testator or by operation of law. The former is called testamentary, and the latter, legal or intestate succession.
Heirs and Legatees
An heir acquires a universal title and is responsible for estate charges up to the value of inherited property. A legatee acquires specific items and bears no burdens beyond those imposed by the testator, subject to secondary liability to the heirs. If the entire estate is distributed in legacies, legatees are considered heirs.
Testamentary Succession
A testament is a personal, revocable, and free act by which a person disposes of their property, rights, and obligations after death. Two or more people can test in the same event, mutually or for a third party. The testator may entrust a third party with distributing amounts to specific classes (e.g., the poor, orphans) and choosing beneficiaries.
Testamentary Capacity
Testamentary capacity requires: 1. Perfect knowledge of the act. 2. Perfect freedom to perform it. Those lacking the first requirement are considered incapable: 1. Minors under sixteen. 2. Those habitually or accidentally insane during the impediment. A lunatic’s will made during a lucid interval is valid if these requirements are met: 1. The lunatic expresses intent to make a will. 2. Medical staff and a judge examine the patient. 3. The examination is formally recorded. 4. If favorable, the will is granted before a notary. 5. The declaration states the patient’s perfect lucidity during the act.
Capacity to Inherit
All inhabitants of the State have the capacity to inherit, but can lose it due to: 1. Lack of legal personality. 2. Crime. 3. Presumed influence against the testator’s freedom or the will’s truth or integrity. Disqualification due to crime applies to: 1. Those convicted of killing or attempting to kill the deceased. 2. The surviving spouse declared an adulterer during the innocent spouse’s life. 3. A mother who abandoned her child.
Conditions in Wills
Testators can set conditions for disposing of their property. Non-compliance doesn’t harm heirs or legatees if they made every effort to fulfill them. Impossible conditions are void, but become valid if the impossibility ceases after the testator’s death.
Disposable Property
Testators must provide for: 1. Descendants legally entitled to support. 2. The surviving spouse unable to work and lacking sufficient means, unless otherwise stated, until remarriage or dishonest living. 3. Ancestors. 4. A person who lived with the testator as a spouse for five years before death or with whom they had children. This obligation is reduced if these individuals have separate property yielding less than the potential support.
Institution of Heir
A legally granted will is void if it lacks an heir or if the appointed heir doesn’t accept or is unable to inherit. Heirs without specified shares inherit equally. An heir instituted in a specific thing is considered a legatee. If the testator names siblings but has only a parent, the estate is divided as in intestacy.
Legacies
Absent special provisions, legatees follow the same rules as heirs. Legacies can benefit a thing, fact, or service. Creditors whose claims aren’t fully covered by the will are considered preferred legatees. Testators can impose legacies on heirs and legatees, who are liable up to the legacy’s value. If assets are insufficient, legacies are paid in this order: 1. Remuneratory legacies. 2. Preferred legacies. 3. Specific legacies. 4. Support legacies. 5. Others pro rata.
Substitution
Testators can substitute heirs or legatees in case of death, incapacity, or refusal to accept the inheritance. Substitutes can be joint or successive.
Invalidity, Revocation, and Cancellation of Wills
Wills made under violence, fraud, or threats are invalid. Those who prevent a will through such means forfeit inheritance rights. Wills are ordinary (public open, public closed, holographic) or special (private, military, maritime, foreign).
Forms of Wills
Public Open Will
Made before a notary and three witnesses. The testator expresses their will, the notary drafts it, reads it aloud, and all parties sign. The testator fingerprints each page.
Public Closed Will
Written and signed by the testator or another person at their request. The testator signs and fingerprints each page.
Holographic Will
Handwritten, dated, and signed by the testator. Foreigners can use their own language.
Private Will
Allowed in limited circumstances: 1. Grave illness. 2. Lack of notary. 3. Imminent danger of death. 4. Military personnel in action or prisoners of war. Witnesses must declare the circumstances, testator’s identity, and will’s content.
Military Will
Made by military personnel or civilians during military action or after being wounded, by declaring their will before two witnesses or delivering a sealed, written, and signed document.
Maritime Will
Made at sea in danger, before two witnesses and the captain. It is written, read, dated, and signed.
Foreign Will
Valid in the State if made according to the country’s laws.
Legal Succession
Occurs when there is no valid will, the will doesn’t cover all assets, the heir’s condition isn’t met, the heir dies or refuses the inheritance, or for family heritage. The order of succession is: 1. Descendants and ascendants. 2. Spouse, concubine. 3. Siblings. 4. The State Treasury.
Right of Representation
Relatives succeed to the rights the deceased would have had if alive.
Succession of Descendants
Children inherit equally, regardless of sex, age, or legitimacy.
Succession of Ascendants
In the absence of descendants, the spouse and ascendants each receive half. Without a spouse, parents inherit equally.
Succession of Spouse
The spouse inherits a child’s portion when concurring with descendants.
Succession of Siblings
Siblings inherit in the absence of descendants, ascendants, and spouse.
Succession of the State
The State Treasury inherits in the absence of other heirs.
Pregnant Widow
A pregnant widow must inform the judge within forty days of her husband’s death. Stakeholders can request measures to prevent confinement or impersonation of the child.
Opening and Transmission of Inheritance
Inheritance opens upon death or declaration of presumed death. When multiple heirs are called, the inheritance is indivisible until partition.
Acceptance and Repudiation of Inheritance
Those with free disposal of their property can accept or repudiate inheritance.
Executorship
Executors are appointed by the testator or by the heirs if no executor is named. Legal representatives can act as executors. Executors can be excused for various reasons. The office can’t be delegated without formal power, except by testator’s provision. Executors can be general or special. General executors present the will, secure the estate, and make inventories. Executorship ends naturally, by death, legal disability, or resignation.
Inventory and Liquidation
The executor must promote inventory formation within thirty days. After inventory approval, the executor liquidates the estate, paying funeral debts, estate debts, and support credits. The executor then partitions the inheritance. Heirs can’t be forced to remain in undivided ownership, except for family heritage. Partition can be suspended by agreement, with approval from the tutor and public prosecutor if minors are involved.
Effects of Partition
Heirs must compensate each other in case of eviction and can use warranty rights. Warranty ceases if the deceased made the partition, it was expressly agreed, or the eviction stems from a post-partition cause. Compensation is proportional to inheritance shares.
Termination of Partition
Partitions can be terminated or revoked for the same reasons as obligations.