It is very common in Notaries to see people arrive with an envelope of various papers and a disfigured face, and when they are attended to, rather than speak, they shout, expressing a certain fear, “Next week it will be six months since my **** passed away and we have not accepted the inheritance.” This statement (and I say it literally) has come to be completed with the phrase “The taxi driver told me that I was going to be fined.”
With all due respect to the taxi industry, our response, which is the result of reiterating the fact, almost always reads as follows: “Don't worry, things are not as bad as they seem.”
Why do we say this? Well, because the deadline for accepting or rejecting the inheritance is different from the deadline for settling the inheritance tax. There is no deadline for accepting or rejecting the inheritance, it is an imprescriptible right, while the presentation and payment of the inheritance tax must be made within the deadlines that we will see.
In any case, now that we have reached the subject, we are going to make a reference, perhaps not complete, but very complete, to the time periods that exist in the legal process that arises from the death of a person, with reference to Catalan law.
1.- THE SETTLEMENT OF THE INHERITANCE TAX
Six months, counting from the day of the death of the deceased, is the period established in tax legislation to settle the Inheritance Tax.
There are some special rules, the details of which we will not go into, and which are contained in articles 24 and 25 of Law 18/1987 regulating inheritance tax.
This period may be extended for another six months, that is, up to a year, without the need to allege any cause, as long as the request is made by a legitimate person, within the period of the first five months from the death of the deceased.
What happens if I submit the inheritance tax settlement late?
As long as there has been no prior request from the administration, the only consequence of filing the tax late will be the obligation to pay the enforcement surcharge (3.75%; 7.5%; or 11.25% respectively), depending on whether the filing is made within 3, 6 or 12 months after the end of the deadline established for filing and payment.
After 12 months have elapsed without filing the tax return, the surcharge will be 15%, and late payment interest will also have to be paid (legal interest increased by 25%).
On what amounts are late payment interest and the enforcement surcharge calculated?
The late payment interest and the surcharge will be calculated on the amount not paid on time. Since the inheritance tax rate, at least in Catalonia, is quite low, if not almost non-existent for average inheritances between spouses, parents and children, it can be said that the economic consequences of late filing are insignificant, leaving aside the criteria of some liquidation offices (for example Les Borges Blanques or Tremp) of requiring the payment of 150 euros as a tax offence, in the event that the amount to be paid is zero euros.
What if the administration requires me to pay the tax?
In this case, in addition to the unpaid amount, you will have to pay late payment interest and the corresponding penalty, the calculation of which depends on many variables.
What happens if there is a conflict over inheritance?
When there is any dispute (with many exclusions according to the law) between the heirs or a voluntary probate trial, the deadlines established for the presentation of documents and declarations will be interrupted, starting to count again from the day after the final resolution that ends the judicial procedure becomes final.
The statute of limitations on inheritance tax
After four years and six months have passed since the death of the deceased, or four since the end of the extension or the end of the litigation over the inheritance, if the administration has not previously required us to pay the tax, the tax debt would be extinguished and nothing would have to be paid.
The problem that may arise with the prescription of the tax derives from the fact that the renunciation of the inheritance, once the prescription has occurred, becomes a donation, and that in the tax field it is not possible in principle, and unlike what happens in the civil field, waiver of the prescription gained.
2.- THE TERM TO ACCEPT OR REJECT THE INHERITANCE.
Pursuant to Article 461-12 of the Civil Code of Catalonia, The right of the person called to accept or reject the inheritance is not subject to a deadline.. In any case, it should be noted that the wording of this provision derives from the modification derived from Law 6/2015, 13 May, on the harmonisation of the Civil Code of Catalonia, being applicable to deaths that occurred after its entry into force (twenty days from 20 May 2015).
For previous deaths, the 30-year period previously established by this article 461-12 CCCat applies.
In the event that the heir does not state whether he accepts or rejects the inheritance, any person interested in the succession may request the judge (regarding doing so before a notary, I refer to this entrance from my blog), once a month has passed from the transfer in his favour, he shall set a deadline for the person called to state whether he accepts or rejects the inheritance. This deadline may not exceed two months.
3.- INDEPENDENCE OF TAX SETTLEMENT AND ACCEPTANCE OF INHERITANCE.
The settlement and payment of inheritance tax does not imply acceptance of inheritance. This matter has been referred to in the Supreme Court's Judgment 3/1998 of 20 January, which has declared, after examining all the doctrine related to this matter, that there is not a single author who maintains that the request for liquidation and the payment of the inheritance tax means, in itself, a tacit acceptance of the inheritance. To conclude, making the doctrinal statement "its own"The call to the inheritance that makes the payment obeys a legal imposition rather than an act that may mean free acceptance“.
4.- LEGITIMATE DEADLINES IN CATALONIA.
The regulation of legitimate shares in Catalonia sets two deadlines, both ten years old.
The first one It influences the amount of the legitimate portion and thus article 451-5 establishes that the legitimate portion is a quarter of the base amount that results from applying the following rules:
- a) The value of the assets of the inheritance at the time of the death of the deceased is taken as a starting point (…).
- b) To the net value thus obtained, the value of the assets given or alienated by another free title must be added by the deceased in the ten years preceding his death, excluding gifts of use. The value of the assets that have been the subject of donations attributable to the legitimate portion must be computed, in all cases, independently of the date of the donation.
The second It is the deadline to demand the legitimate portion and its supplement, which expires after ten years from the death of the deceased..
For deaths prior to January 1, 2009, the period is 15 years, as established by the Succession Code of 1990..
5.- OTHER DEADLINES.
SIX MONTHS
1.- For the designation of heir by relatives.
Article 424-9 CCCat: 1. The election or distribution must be made within the period set by the testator. 2. If no period has been set and the election or distribution has not been made within four years following the death of the deceased, any person interested in the succession may require the relatives who elected or distributed to do so within six months following the request..
2.- To take inventory by trusted heirs.
Article 424-12 CCCat: 1. The trusted heirs must take inventory of the inheritance within six months from the moment in which they know or can reasonably know of the disclosure, under penalty of loss of remuneration..
3.- To take inventory by the fiduciary heirs.
Article 426-20 CCCat: 1. The trustee must take inventory of the assets of the inheritance or the trust legacy, in charge of the same inheritance or the same legacy. The inventory must be closed within six months.from the moment in which the trustee knows or can reasonably know that the trust has been deferred to him.SW
Article 426-45 CCCat: Once the trust has been deferred, the trustee or his heirs must deliver possession of the inheritance or the trust legacy to the trustee within one month from the day following the day on which they are required by notarial or judicial means..
4.- To subtract the fourth trebelianic.
Article 426-31 CCCat: 1. Unless the deceased has prohibited it, the fiduciary heir who has accepted the inheritance has the right to deduct and make his own, free of the trust, a quarter of the trust estate, called the trebeliánica fourth or free share. (…) 3. To deduct the trebeliánica fourth or free share, it is necessary that the heir has taken inventory in the time and manner established by article 426-20.
5.- To remove the fourth falcidia.
Article 427-40 CCCat.: Unless the testator has prohibited it, the heir may reduce the legacies if his order does not leave him free a quarter of the net hereditary assets. (…) 4. To retain the fourth falcidia or minimum hereditary share, the heir must have taken inventory, in the time and manner established by article 426-20.
6.- For acceptance for the benefit of inventory
Article 461-15 CCCat: 1. The inventory must be taken within six months from the moment in which the heir knows or can reasonably know of the disclosure. (…) The inventory taken may be used to deduct the fourths from the trust or from the inheritance burdened with legacies and private documents that are presented to the public administration competent for the liquidation of taxes related to the succession.
ONE YEAR
1.- To fulfill their function, the executors
Article 429-13 CCCat 1.- The executors must carry out their duties within the time limits and extensions established by the will, codicil or inheritance. The heirs, by mutual agreement, may extend said time limits and extensions. 2. If no time limit has been set for carrying out the duties and the executors do not do so, have fulfilled within one year of accepting the position, any of the interested parties may request the judicial authority to require them to comply within the period set, with the penalty of expiration of the position and without prejudice to the liabilities resulting from the delay. Private executors who are partitioners must carry out the partition within one year from the moment they are required to do so, if the litigation regarding the validity or nullity of the will or codicil, if applicable, has ended. the period that the testator sets for the executor to carry out the assignment cannot exceed thirty years or, if it is fixed in relation to the lives of certain persons, it cannot exceed the limits of trusts.
2.- For the revocation of inheritance agreements
Article 431-15 CCCat: 1. The unilateral will to revoke the succession agreement or its provisions must be expressed in a public deed and notified to the other grantors of the agreement.. The person affected by the revocation may object to it in authentic form within one month of receipt of the notification. If he does not object, the agreement or provision shall be void. If the person affected by the revocation objects to it or if his whereabouts are unknown, or if notification has not been possible, the action for revocation must be exercised before the competent judicial authority. from their home within one year from the opposition or the granting of the revocation deed.
3.- For the commutation of usufruct in intestate succession.
Article 442-5. CCCat: 1. The surviving widowed spouse or cohabiting partner may choose to commute the universal usufruct for the attribution of one-fourth aliquot part of the inheritance and, in addition, the usufruct of the marital or family home. The option to commute the universal usufruct may be exercised within one year from the death of the deceased and is extinguished if the surviving widowed spouse or cohabiting partner expressly accepts the award of the universal usufruct.
THREE YEARS
1.- For the extinction of the widow's fourth.
Article 452-6 CCCat: 2. The claim to claim the widow's fourth shall expire after three years from the death of the deceased..
Regarding the concept of fourth widow, you can click here.
2.- For the extinction of the action of repetition between co-heirs
Article 464-16 CCCat: The division of the inheritance does not modify the liability regime of the co-heirs established by article 463-1. The co-heir who before the division has paid more than what corresponded to him, according to his share, can claim from the others the amount that corresponds to them. The right of recourse expires three years after the division.
FOUR YEARS.
1.- For the expiration of the action of unworthiness or inability to inherit.
Article 412-7 CCCat: 1. The action for a declaration of unworthiness or incapacity to inherit expires once four years have elapsed since the person entitled to exercise it knows or could reasonably know the cause of ineffectiveness and, in any case, once four years have elapsed since the unworthy or incapable person takes possession of the assets as heir or legatee. The action is transferable to the heirs. If the cause of unworthiness requires a conviction in a sentence, the calculation of the limitation period does not begin until the sentence is final.
2.- For the expiration of the holographic will
Article 421-19 CCCat: 1. Holographic wills expire if they are not presented for verification within four years from the death of the testator and are not notarized within six months from the resolution of the file.
3.- For the action of nullity of the will.
Article 422-3 CCCat: (…) 2. The action for nullity expires four years after the person entitled to exercise it knows or can reasonably know the cause of nullity..
4.- For the action of nullity of the succession agreement
Article 431-10 CCCat: 2. The action for nullity due to lack of capacity or due to a defect in consent expires four years after the moment in which the legitimate person regains capacity or when the defect disappears. In the event of error, the period counts from the granting of the agreement.. UOnce the succession has been opened, if the limitation period set by section 2 has not elapsed or if another cause of nullity exists, the persons who may benefit from the declaration of nullity are entitled to bring the action. In this case, the action expires four years after the death of the deceased.
5.- For the action of challenging disinheritance.
Article 451-20 CCCat: 3. The action to challenge disinheritance expires four years after the death of the testator.
6.- For the action of invalidity of legacies, donations and other attributions due to death.
Article 451-24CCCat: 2. The action of invalidity expires four years after the death of the deceased.
TEN OR FIFTEEN YEARS
1.- Limitations on the division of inheritance.
Article 463-2 CCCat: The deceased may order, and the heirs may unanimously agree, that, both with respect to the inheritance and to specific assets thereof, the partition shall not be carried out for a period of time. which cannot exceed ten years from the opening of the succession. The period of indivision can reach fifteen years with respect to the property that is the habitual residence. of one of the co-heirs if this person is a spouse, a stable partner or a child of the deceased.
NO DEADLINE
1.- Disposition of the hereditary share.
Article 463-6 CCCat: Each co-heir may dispose of his or her share in the inheritance. In the event of a sale or payment in kind in favour of a person who is not a co-heir, the other co-heirs may exercise, in proportion to their respective shares, the rights of first refusal and redemption. The rights of first refusal and redemption are exercised in the time and manner established by article 552-4.2.
2.- Action to request inheritance.
Article 465-1 CCCat: 3. The action to request inheritance is imprescriptible, except for the effects of usucapion with respect to singular assets..
Lleida, March 1, 2016
