Justice – Changes in the Successions Regime

 

In particular, the Bill (1) incorporates changes regarding the transfer of rights in general -and of property in particular- by cause of death, and (2) proposes an alternative method for the transfer of rights by cause of death without the need to go to court. The following is a brief review of these proposed changes.

1. Substantive changes in matters of hereditary mass maintenance and testamentary dispositions

Firstly, Sections 397 to 400 of the Bill, located in Part III of Chapter V called "Justice", introduce changes in matters of indivision of the hereditary mass and testamentary dispositions, by amending Sections 2332, 2334 and 2468 of the Civil and Commercial Code ("CCC"), and aboling Section 2333 of the same Code. Such changes include the following:

• It incorporates the presumption of the duration of ten years of the agreements of hereditary indivision, when there is no stipulated term by the co-heirs.
• It eliminates the right of the surviving spouse to request the indivision of the business establishment of the deceased if he/she did not participate in the acquisition or constitution of such business establishment.
• It eliminates the right of the co-heirs to demand the indivision of the establishment that constitutes an economic unit by the sole fact of having participated in its operation.
• It incorporates the need to register any type of indivision so that it is binding for third parties, when it involves registrable goods (whether it is an indivision imposed by the deceases, agreed by the co-heirs, or obtained by a court decision).
• It eliminates the charges and conditions that are "against morality" from the list of prohibited conditions and charges in the matter of testamentary dispositions, leaving the prohibition only for those constituted by impossible facts and expressly denied by law.

 

2. Proposal of a new regime for a non-contentious Succession proceeding.

Section 441 of the Bill proposes the approval of a new Law which introduces a "Non-contentious Succession Proceedings", which is attached to the Bill as Annex IV. By means of this regime, the notarial succession would be incorporated, and therefore the co-heirs will be able to start the process before a notary in those cases in which there are no controversial issues between them.

As in the case of the divorce reform, this new regime would coexist with the judicial process to seek the transfer of rights by cause of death before the competent judicial bodies, without eliminating the judicial procedures that exist up to now.

The notarial proceeding would add numerous particularities to successions regime. The main aspects of the new regime are detailed below:

• • The intervening notary must have territorial jurisdiction in the last domicile of the deceased or, in application of Article 2643 of the CCC, in the place where the real estate assets involved are located.
  • This choice may only be made in cases where there is no dispute between the interested parties and all of them are capable.
  • This procedure is applicable to legal successions and to those in which the deceased has granted a will by public act. Those in which the deceased has granted a hand-made will are not included in the Bill.
  • This procedure can only be chosen with assistance of a Lawyer.
  • If at any stage of the notarial process, a conflict arises, the notary must immediately suspend his or her actions and send the file to the competent judge within a maximum period of 10 working days.
  • The Notary Public Associations shall establish the fees to be charged by the notary for these tasks, in addition to a mandatory social fee for those cases in which the valuation of the assets does not exceed a minimum amount that may be established by such regulations.
  • Notarial proceedings of this nature must be reported and registered in the Registry of Universal Judgments, just as judicial proceedings in which an inheritance is being processed must be reported and registered in the Registry of Universal Files.
  • The document which is equivalent to a judicial declaration of heirs will be called "Act of Notoriety of Declaration of Heirs", and the document equivalent to the judicial approval of the will be called "Act of Notoriety of Approval of the Will".
  • The documents referred to in the preceding point will be executed by the notary provided that the requirements foreseen have been complied with (among them, the public notification of the process existence).

 

The implementation of the regime described above would imply the substitution of several sections of the CCC and incorporate in them the alternative of notarial succession (among them, Sections No. 2294; 2302; 2336, 2337, 2338 and 2643).

Although private distribution of the hereditary mass is currently set forth in Section No. 2369 of the CCC for those cases in which all the co-heirs are present, capable and reach an agreement, as a prior step it is essential to have a judicial order of registration of the declaration of heirs or approval of the will. This requirement would change if the proposed new regime is approved, subject to the requirements explained above.

As it was already mentioned, this new regime does not exclude the intervention of the judges definitively but aims to give an alternative way to facilitate the probate process when the case is not complex and there is a common agreement between the interested parties.