Acceptance and repudiation of an inheritance

A prospective heir only acquires the actual status of heir upon acceptance of the inheritance, whether this is endowed by law or under the terms of a will. Indeed, an inheritance cannot be imposed by law on prospective heirs, even if they have been identified.

Acceptance may be express (in writing), that is, to take on the status of heir with the intention of acquiring the inheritance, or tacit – by doing acts which enable a conclusion to be made as to the acceptance of the inheritance). However, the acts of administration carried out by a prospective heir do not imply tacit acceptance of the inheritance.

Ownership and possession are acquired upon acceptance, regardless of any actual taking charge of the material inheritance, and the effects of the acceptance are backdated to the time the succession came about, that is to say, upon the death of the deceased person.

The inheritance may be accepted purely and simply or with the benefit of the inventory: this means that firstly the heirs can accept the inheritance according to the effects provided for by law, answering for any claims on the estate, including the debts of the decedent, up to the value of the inheritance, and being liable for claims only over the inventoried goods – the goods listed in the estate inventory – and the burden of proving the existence of any other assets belonging to the estate falls to the creditors.

Repudiation is irrevocable and must be made in writing. The effects of repudiating an inheritance are retroactive to the time the succession came about, and any prospective heir who repudiates is considered as not being an heir.

In the event that no heir accepts or repudiates the inheritance, it remains in abeyance for a period of 10 years from the time the prospective heirs became aware of it, in other words, it is an unclaimed estate owing to the death of the deceased which has not yet been accepted or declared bono vacantia by the State.

The figure of the estate in abeyance seeks to protect against the drawbacks inherent to the absence of a definite owner in legal relationships to which the deceased was an active or passive party. The unclaimed estate is, so to speak, a property without a given owner, following the death of the previous owner. It is only when the prospective heirs have declared their acceptance of the inheritance or when all the possible heirs have repudiated it and it reverts to the State, which will then take over as holder of the estate, that the property comes to have a given owner again.

From this viewpoint, it is sufficient for only one heir or successor to accept the estate and the question of ownership will be settled. Where there are several potential successors, the question of ownership will only be settled when they all come forward and accept or repudiate the inheritance.

In the event that the estate is not accepted by any successor or if all those who come forward as successors fall away, the estate is declared bono vacantia for the State. In this case, the estate is wound up, with the debts being collected and the assets sold by judicial sale. Any liabilities are then paid off and the remainder is awarded to the State.

Cláudia Roque de Almeida