RENUNCIATION OF ACCEPTANCE OF INHERITANCE BY A MINOR CHILD
28 Mar 2019 -- Posted by :
The renunciation of inheritance by a minor child!
The process of renouncing indebted inheritance must be done by the parents of the minor children legally and on time, so that they do not unjustly shoulder the unbearable liabilities of the inheritance that were not created by their fault.
Unfortunately, in the case of the renunciation of inheritance by a minor, the knowledge of the citizens is either incomplete or incorrect. As a result, minor children are at a disadvantage in inheriting large amounts of debt due to untimely or no renunciation of the inheritance on their behalf by their parents. In particular, we were especially impressed by a phone call that our Law Firm recently received by a client who had the wrong idea that her children had the right to renounce their grandfather's inheritance, as she (the lady) renounced it when they reached the age of eighteen.
Who has the right to renounce the inheritance on behalf of the minor!
The renunciation of inheritance, when it comes to a minor child, must be done by his parents, after they have secured a special permit for this purpose through a court order.
The debt of the inheritance is a slow-burning bomb and that's why parents need to get rid of this problem for their children as soon as possible.
Court jurisdiction for the renunciation of the minor's inheritance!
The application for the issuance of a court order is submitted by the parents of the minor to the secretariat of the locally competent Magistrate's Court, which is the one in the region of the minor’s residence, in order to follow the non-contentious procedure. After all, permanent residence of an individual is considered the main residence in a certain place (article 51 of the Civil Code). A minor who is under parental responsibility has as residence the place of his parents or the parent who carries out the parental responsibility himself (article 56 § 1 cit. A of the Civil Code).
Serving the application for the waiver of the minor's inheritance to the Public Prosecutor of Misdemeanours:
Upon submission of the application, a court date shall be set by the secretariat, which provides the depositor with as many copies of the application are required for the proper completion of the procedure (2 copies are sufficient). A copy of the application, with the appointment document for the hearing attached at the end of the application by the Registry of the Magistrates' Court, as well as an order for service, must be served by the parents through a court enforcement officer to the Public Prosecutor of Misdemeanours, who has the same local jurisdiction with the Magistrates' Court where the application has been filed. The service must be made within the time limit set by the Magistrates Court and is indicated on the appointment of the hearing document attached at the end of the application. The report of service issued by the court enforcement officer must be submitted, among other documents, during the hearing of the application in court, otherwise the discussion of the application is declared inadmissible by the issued decision.
Deadline of renunciation of inheritance when it comes to a minor!
The renunciation of the inheritance, both for adults and minors, can and should be done within the exclusive term provided by the provision of Article 1847 of the Civil Code, which stipulates that this period is usually four months, with the exception of two cases in which the period is one year. In particular: a) if the deceased had his last residence abroad or b) if the heir learned of his inheritance right (namely, he learned that he became an heir) when he resided abroad.
Start of deadline for the renunciation of inheritance:
According to the provision of §1 of Article 1847 of the Civil Code, the time limit for renunciation of inheritance begins when the heir has learned his inheritance right and reason, while in the case of inheriting by will (namely if the heir inherits due to a will) the term begins after the publication of the will. If the inheritance is transferred to a person incapable of a legal act, the knowledge of inheriting and its reason are determined based on his legal representative. In particular, in the case of a minor who is under parental responsibility, the element of knowledge, in order for the exclusive period of waiver to begin to run, is determined based on his parents. This means that the four-month period begins when the minor's parents have learned that their child has become an heir.
Suspension of the four-month deadline!
The question arising at this point is, what happens if from the filing of the application for a permit to renounce the inheritance to the Magistrates' Court to its discussion and the issuance of a decision, a period of more than four months has elapsed from the beginning of the renunciation deadline. In this case, it is considered that the parents of the minor are prevented from exercising their right to renounce the inheritance on behalf of their minor child due to force majeure.
The time intervening since the legal representative of the minor, who is incapable of legal action, submitted a relevant application to the court for the issuance of a waiver permit until the issuance of the final decision of the court is a matter of force majeure. For this period, the completion of the four-month period for renunciation of the inheritance is suspended.
Non-compliance with the four-month period
If the four-month period has elapsed, then it is considered that the inheritance was accepted by the children. Any renunciation of inheritance after the expiration of the four-month period is invalid.
Annulment through court decision of the fictitious acceptance of inheritance due to a substantial erroneous belief!
As we have seen above, a minor may become the permanent heir of the inheritance due to the fact that his parents have not met the requirement of the four-month deadline for its renunciation, through the procedure described above. This acceptance of the inheritance is fictitious since it is not really due to the will of the minor to become an heir, but due to the expiration of the four-month period required for the renunciation of the inheritance. In this case, even afterwards, there is the possibility of cancelling the acceptance of the minor's inheritance if the expiration of the four-month period is due to a substantial erroneous belief of his parents. The erroneous belief is substantial when it refers to a point so important to the whole legal action that, if the person were aware of the real situation, he would not have attempted the legal action.
In particular, according to Article 1857 cit. b’ par. 1, c’ and d’ of the Civil Code, the acceptance of the inheritance due to an erroneous belief is judged in accordance with the provisions on legal actions. The provisions of this article also apply to inheritance acceptance caused by the neglect of the time limit for renunciation. According to articles 140 and 141 of the Civil Code, if a person makes a legal commitment and his statement does not agree with his will, due to an essential wrongful belief, he has the right to request the annulment of the legal commitment.
These provisions stipulate that the acceptance of the inheritance, which results from the neglect of the period of waiver, may be infringed by the heir, when the acceptance, implied by the law, does not agree with his will due to a substantial erroneous belief. This means that ignorance or incorrect knowledge of the situation shaped his will to such an important point that if the heir knew the true situation, in this respect, he would not allow the renunciation period to expire. The incorrect knowledge or ignorance, which creates the disagreement between will and declaration, when substantial, establishes a right to infringe the statement due to error. This error may also be caused due to ignorance or misinformation of the aforementioned legal provisions for acceptance of inheritance.
Jurisdiction of the court for annulment of the acceptance of inheritance due to substantial erroneous belief:
The legal action is brought before the Multi-Member Court of First Instance, which convenes in accordance with the regular procedure. The legal action is a non-monetised dispute and, according to the more correct view that supports an expansive interpretation of the provision of Article 155 of the Civil Code, is exercised against the person that has the most legal interest on his renunciation of the inheritance. In other words, the legal action is brought against the next successor in line that will acquire the right to inherit if the plaintiff’s acceptance of the inheritance, due to an erroneous belief, is annulled. The opposite view argues that the relevant legal action for annulment of the acceptance of the inheritance is directed against the creditors of the deceased and other heirs. This view, on the one hand, does not rely on the law, and on the other hand, it creates excessive difficulty for the plaintiff to turn against a large and often unspecified number of creditors of the deceased. In addition, the creditors may be protected by the exercise of third-party proceedings (Articles 583 et seq. of the Code of Civil Procedure) against the decision accepting the annulment of the acceptance.