If an estate is inherited, all of the deceased's property is transferred to the heir or heirs. This includes not only the positive assets, but also the liabilities, i.e. debts, that the deceased had during their lifetime. This principle also applies in Spanish law.
However, to ensure that there is no risk to personal assets in the case of partially over-indebted estates, it is possible to limit the liability of the estate to the estate. This limitation should be seen as an intermediate form of acceptance of the inheritance, as the best way to deal with a purely over-indebted estate is probably to waive the inheritance.
It should be noted that a partial acceptance or partial waiver of an inheritance is not possible under either German or Spanish inheritance law. It is therefore not possible to inherit just one property but not the rest. In this respect, the all-or-nothing principle applies. This principle applies above all to the testator who wishes to specify his last will and testament as well as to the subsequent heir who wishes to inherit.
The restriction to the estate protects the heir's private assets, as these cannot then be used for possible liabilities. This restriction is possible under both German and Spanish law. However, it is important to note some differences, particularly in the declaration of the restriction, while the same legal consequence applies in the end, namely no access to the remaining private assets.
Under Spanish law, liability is limited to the estate by drawing up an inventory (beneficio de inventario). A period of 30 days must be observed in order to be able to accept the inheritance in this form. If the heir is already in possession of an inheritance, the time limit begins to run when the death is known. If a judicial deadline for acceptance or waiver has been set by the probate court, the deadline begins with the expiry of this deadline for acceptance. This applies because the inheritance is automatically deemed to have been accepted once the deadline has expired. If the heir is neither in possession of the inheritance nor has a deadline been set by the court, the 30-day period begins to run from the date on which the inheritance was implicitly accepted. Once the inheritance has been accepted in its entirety and therefore without restriction, the restriction can no longer be declared. Likewise, once the 30-day period has expired, there is no way of preventing the liability of the private assets. The declaration of limitation is made before a notary or directly before the judge of the probate court. The declaration must be accompanied by an inventory of the estate.
In German inheritance law, on the other hand, there is the possibility of limiting liability to a greater extent. For example, an heir has the option of limiting liability only temporarily or definitively and can also apply this to all or just one individual creditor of the estate. The heir is entitled to refuse to adjust a liability of the estate. Adjustment means the settlement of a claim. This applies until the expiry of three months after acceptance of the inheritance. Once this period has expired, the heir can no longer refuse the adjustment. If the official costs of the administration of the estate or the estate insolvency proceedings are not covered by the estate, the heir may refuse to satisfy an individual creditor of the estate. However, this is only to the extent that the estate is insufficient. To this end, the estate must ultimately be surrendered by way of compulsory execution to satisfy the creditor. Each co-heir of a community of heirs can refuse to settle the debts until the estate is divided if this would have to be paid from assets outside the share in the estate. The above-mentioned options for refusal only apply temporarily due to the three-month period. It should also be noted that the deadline is only intended to give an heir an overview of the estate. The heir can therefore demand settlement. However, if an heir draws up an inventory of the estate, he or she has demonstrably obtained an overview of the estate. The period of three months can therefore also end earlier, namely when the inventory is drawn up.
As a final limitation of liability, the heir has the option of separating the estate from their own assets vis-à-vis all creditors of the estate by means of estate administration or estate insolvency. This means that liability for debts is limited purely to the estate.
Due to the wide range of possibilities under both Spanish and German law, it is therefore advisable to carefully examine the specific steps to be taken so that there is no risk of liability of private assets if the estate is over-indebted.
Author:
Dr. Dominic John Patrick Porta, LL.M.
Attorney at Law (Düsseldorf Bar Association n° 52954)
Abogado (ICAIB n° 6645)
dominic.porta@anwaltmallorca.eu
www.anwaltmallorca.eu
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