The heirs continue the legal personality of the deceased. This means that they are entitled to receive all the property of the deceased that was not disposed by will. They also have a right to obtain from others what was owed to the deceased. Conversely, an heir is bound to make good for all that is due by the deceased. All legal obligation contracted by the deceased have to be honoured by the heirs.
Before accepting an inheritance, heirs have to consider whether they should accept the inheritance or not. If they are afraid that the estate of the deceased contains more debts, they have to consider whether to accept the inheritance under the benefit of inventory. Heirs may opt to accept the inheritance with the benefit on inventory procedure in order to avoid being held responsible for the deceased's debts. If no appropriate safeguards are made, the heirs could end up making good for the debts left behind by the testator.
The heirs are also obliged to deliver all the legacies to the legatees appointed by the testator.
Criminal Responsibility, as opposed to Civil Liabilities
Criminal responsibility stops with the deceased. No heir or relative may be charged with criminal offences allegedly committed by the deceased. Likewise, no heirs or relatives may be punished for crimes which the deceased was convicted of.
The heirs are however bound to respond to all the civil claims that may be raised against the deceased, including those civil claims arising from criminal offences.
Acceptance of an inheritance
No person may be forced to accept any inheritance.
Once an heir accepts an inheritance the heir cannot renounce it. The acceptance is irrevocable even if the heir discovers that the estate contains more debts than wealth and that he will have to make good for those debts.
The heirs who accept an inheritance may petition the court to annul the acceptance of the inheritance if it results that they were coerced into accepting the inheritance or they were defrauded into doing so by others. Although this would involve court proceedings that are often complicated, if successful, the result may be beneficial to those who were defrauded or coerced into accepting the inheritance.
The benefit of inventory will help those who have been nominated heirs but are afraid that the estate is encumbered by debt. If accepted under the benefit of inventory the heir may limit his liability to the debt that encumber the estate, according to the circumstances of the case.
Once accepted an inheritance has retrospective effect and it is deemed to have applied from the day of the opening of succession and not from the day of the acceptance.
Tacit Acceptance of an Inheritance
A person who is in line to inherit must make sure that he does accept the inheritance unknowingly. Acceptance of an inheritance may be either express or implied. It is express if this is laid down in writing.
Acceptance of an inheritance may be implied if the person who is subject to become an heir does some act which demonstrates that he or she intends to accept an inheritance. Such act could be, the seizing of goods from the testator’s property. Once these acts are made, such person would be confirming the inheritance and would not be able to renounce to the inheritance later, which may be problematic in certain circumstances.
However certain acts, such as making funeral arrangements, acts of mere preservation of property and acts of provisional administration do not constitute as a tacit acceptance of the inheritance.
Renouncing to an Inheritance
By renouncing to an inheritance, the person entitled to succeed declares that he does not want to assume the status of heir. A renunciation cannot be presumed: it may only be made by a declaration filed in the registry of the Court of Voluntary Jurisdiction.
The heir who renounces to a testate succession forfeits all rights to the intestate succession. Therefore if there is property that has not been declared in the will, the heir who renouces cannot claim a right to that property on the ground that he only renounced to property that was only indicated in the will.
Notwithstanding the renunciation the heir may make a reservation regarding property due to them as part of the reserved portion. Hence the spouse or the children may renounce to the inheritance, but demand their reserved portion from the person who inherits the deceased.
An heir who has been granted a legacy is still entitled to receive that legacy notwithstanding the fact that he renounced to the inheritance.
What happens to a will that has been renounced
If an heir renounces to an inheritance the share due to him shall devolve upon the substitute (if a substitute heir is nominated in the will). If there is no such substitute the inheritance will devolve onto the co-heirs. If there are no co-heirs, the inheritance will devolve onto that person that is next in line to inherit in accordance with the rules of intestacy.
Until the inheritance is accepted by any person, the inheritance is said to be vacant. If no person accepts an inheritance, any person may ask the court to appoint a curator.
Creditors of an Heir who Renounces
A person may not renounce to an inheritance in order to defraud his creditors. For example: an heir who is indebted may not renounces to the property of his father in order to avoid paying his creditors.
The creditors of a debtor who renounces to an inheritance to the prejudice of their rights may apply to the court for authorisation to accept the inheritance in the place of their debtor. The court may order that the creditors of the heir who renounces will benefit from the inheritance to satisfy the debt.
In order to avoid having family property be disbursed to third parties, a co-heir may opt to pay the creditors of the co-heir who renounced. The co-heir who paid the co-heir’s debtor shall be subrogated into the rights of the creditors whose claim he has satisfied.
Revocation of a Renunciation
The rule is that the renunciation of an inheritance is irrevocable. An heir who previously renounced may, in certain circumstances, still accept the inheritance by means of a subsequent acceptance. This does not apply where:
1. the right of acceptance had lapsed by prescription
2. the inheritance had already been accepted by other heirs
Compelling heirs to declare whether they will accept the inheritance or not
Any interested person may ask the court to fix a time within which the heir is bound to declare whether he accepts or renounces to the inheritance. In default of such declaration, the inheritance shall be deemed to have been renounced.
Heirs having actual possession of the property
The person entitled to succeed and has actual possession of the property of the inheritance, shall after 3 months from the opening of the succession or from day on which they had knowledge of the devolution, forfeit the right to renounce. This does not apply if the heirs benefitted from the benefit of inventory.
Misappropriation or concealment
Any heir who misappropriates or conceals a part of the inheritance shall forfeit the right to renounce such inheritance. Notwithstanding any renunciation that heir shall remain pure and unconditional heir.