The Implications of Estate Planning


The date of the opening of the succession is that of the death of the inheritor. Proof of death is done with the death certificate. At the death of a person, his property is passed on to her heirs or testamentary heirs. Click here.

Even if the transmission of the deceased’s patrimony has been in operation since his death, this transmission has no definitive or binding character. The law regulates that no one is obliged to accept an inheritance that is due to it. Therefore, the heir (or the successor) has the right to choose between consolidating the title of an heir by accepting the inheritance and abolishing that title by renouncing the inheritance.

The heir has the following successor options:

1. a) Accept the inheritance;
2. b) Give up the heritage.

Who can do estate planning?

The Civil Code provides for the order of inheritance between legitimate heirs. Thus, natural children, in respect of their mother’s succession and her collateral, are assimilated to legitimate children and vice versa, and in the absence of legitimate or natural heirs, the assets are inherited by the surviving spouse. Also, the conceived and unborn child can be considered an heir. The Civil Code provides that ascendants of the same degree inherit equal parts.

If the deceased person is alone, having no husband or descendant, his / her inheritance lies with the state. Also, a person cannot come to the inheritance if he is convicted of having killed or attempted to kill the deceased.

How to open a succession?

The succession can be debated either by the notary, by the notary public or by the court. The notarial procedure is carried out – in practice – only in cases where there is a good understanding between the heirs, and only by the public notary whose office is in the territorial jurisdiction of the district in which the deceased’s last domicile is located.

Instead, the court can be called anytime, anyway, whether or not the debate has already been attempted in the notary. For example, if the heirs do not understand each other either at the succession table or the succession vocation of some of them, either if they dispute each other’s right to succession, etc., or even if there is a good understanding, but the heirs prefer – for any reason – to go to court and not to the notary.

The notarial succession procedure shall be opened, as the case may be, at the request of any interested person, the prosecutor and the secretary of the local council of the locality where the deceased had his last home when he is aware that the estate includes immovable property.

In Florida, to probate a will you need to know that you can start as soon as the succession opens, rightly, without any formality, to the death of the deceased.

The person wishing to initiate the notarial succession procedure shall address to the competent territorial office (the last of the deceased’s home), where he will fill out an application for the opening of the succession, and shall submit the heirs’ civil status documents, the property acts of the property inheritance, and will pay a portion of the notarial fee. After signing the application, the notarial office thus invested will investigate the national wills register and inheritance options to verify whether there is a will, whether certain heirs have already opted for accepting/denying the inheritance, or whether the succession procedure has already been opened at another office notary.

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The Civil Code also specifies that the descendants and ascendants of the deceased have the right to possess the inheritance, unlike the other heirs who can benefit from this right only with the permission of the judiciary.

The Civil Code also specifies that the descendants of the deceased have the right to possess the inheritance, unlike the other heirs who can benefit from this right only with the permission of the judiciary.

What is the term in which a succession can be opened?

Succession opens, rightly, without any formality, to the death of the deceased. In order to carry out the actual procedures to make this transfer to the heirs, the law provided for a 6-month succession option, in which the heirs can choose to express or expressly renounce the inheritance. The choice means, in practice, a notary statement – which can be given to any notary in the country – a declaration that is mandatory in the national register of inheritance options.

Division of succession

No heir is obliged to remain in the impartible, whenever there is the possibility of asking for the division of the inheritance, whether it be movable or immovable property. However, according to the Civil Code, there is a possibility for the heirs for a period of 5 years to suspend the process of dividing the assets received as inheritance. Once this term expires, they can resume sharing their respective legacy.

Division of succession

If someone does not agree with the rest of the successors about the succession division, then the court may intervene to clarify the situation. As a rule, according to the Civil Code, the inequality of the parties given in nature is compensated by money. Depending on the inherited goods, the parties may consult experts who appreciate the fair value of the assets constituting the inheritance.

Certainly, everyone has the opportunity to claim to receive its share of nature. However, if there are creditors or opponents, the inheritance property may be put up for sale by public auction.

In this regard, the Civil Code specifies that experts elected by the interested parties will estimate the buildings or experts appointed ex officio when the parties refuse to choose. Experts must draw up minutes to prove the basis of estimation, to indicate if the estimated object can be conveniently divided and in what way.

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Next, an arbitrator appointed by the judge will determine how much the sums are to be paid to the coercers, rebuild the accounts by establishing co-debtors’ debts to each other, proceed to the formation of the assets and passive heredity, compose the parties, and return the heresies that are due to them.