Inheritance claims and power of attorney

One of the reforms of the law of voluntary jurisdiction in the Civil Code, is the one that contemplates the possibility of making a notarial requirement to an heir in order to accept an inheritance.

This new article, 1005 of the CC, provides:

“In order to request, in court, a third party to accept or reject the heir, the judge must set a time limit of no more than thirty days for the heir to make his declaration, and warn him that if he does not do so, the inheritance will be considered accepted.

This means that within thirty calendar days, the heir must communicate his or her interest in accepting or repudiating the inheritance. If not, it will be understood that he accepts the inheritance purely and simply.

What does the requirement by the power of attorney, as opposed to the judicial one, entail?

Mainly, it will stand out for being more agile, faster and more efficient.

Courts of law are often in a state of collapse, especially in matters of voluntary jurisdiction. Therefore, this type of procedure can be “eternalized”. 

Since the intervention of a lawyer is not necessary, the notary, unlike the judge, has a duty to advise, and therefore drafts the document, which expresses the will of the heir. On the other hand, the judge, who has no power of attorney, only receives written documents.

Impartial advice by the notary

The notary therefore gives impartial advice, in the interest of all the heirs… The lawyer, however, will do so in the exclusive interest of his client, as is logical.

It is true that in the usual case of acceptance of an inheritance, if the partition is unanimous there will be no need for it to be done judicially. If, on the other hand, there is a chance that a dispute will have to be settled, it is best to go to a lawyer at the outset, as notaries do not provide legal assistance in a dispute.

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