What is an action to claim an inheritance?

Question

José Manuel Alburquerque · Accepted Answer

It is the claim by which the true heir asks the court to recognise them as such and to order whoever holds the assets of the estate to hand them back, whether that person claims to be the heir or has no title at all. There is no need to prove that the deceased owned each asset. It is used, for example, when a later will comes to light that appoints another heir or when a sibling keeps the whole estate as if they were the only heir. In Catalonia it does not become time-barred, although whoever holds the assets may eventually acquire some of them through the passage of time. What it is for The action to claim an inheritance (“acción de petición de herencia”) protects a person's status as heir. The “Código Civil de Cataluña”, the Catalan Civil Code, allows it to be brought against whoever holds all or part of the estate, whether they claim to be the heir or have no title at all. It can also be brought against that person's heirs and against anyone who has acquired the whole estate or a percentage of it from them, for example by buying it. The heir asks the court to declare that they are the heir and to order whoever holds the assets to return them as a whole. It is used, for example, in these cases: A later will comes to light that appoints other people as heirs. The will under which someone else took the estate is annulled. A child of the deceased whom nobody knew about claims their share of an estate left without a will, which their siblings had already divided among themselves. A sibling keeps the whole estate and behaves as if they were the only heir. It is not the right route in every case. If your brother acknowledges that you are an heir but does not want to divide the estate, the right course is to apply for division of the estate. And a child to whom the will leaves only the forced share (“legítima”) is not an heir, so what they claim is their forced share. What is recovered If the court rules in the heir's favour, whoever had the assets must return them to the true heir. The accounts of what they have received and spent in connection with them, such as the rent from a flat, are settled according to whether they acted in good or bad faith, that is, whether or not they knew that the estate was not theirs. If they have already sold an asset to a buyer who paid for it in good faith, the buyer normally keeps it. If it is a property, it also depends on when the sale took place and on what was recorded at the “Registro de la Propiedad”, the Land Registry. Where the buyer keeps it, the seller must hand over to the true heir the price or whatever they bought with it. If the buyer has not yet paid, the heir can claim the price directly from the buyer. To prevent such sales while the proceedings last, it is advisable to ask for the claim to be recorded at the Land Registry. That way, anyone who later buys a property from the estate will not be able to argue that they knew nothing about it. How to bring the claim Before suing, the law generally requires an attempt to reach an agreement. The claim is filed with the court through a lawyer and a court agent (“procurador”). Whoever brings it must prove that they are an heir and that the assets they are claiming formed part of the estate, without having to prove that the deceased owned each of them. Their status as heir is normally proved with the will or with the declaration of heirs. If a will has to be annulled first for them to be the heir, both can be sought at the same time, but the challenge to the will has its own time limit. In Catalonia the action does not become time-barred, but whoever possesses the assets as owner may eventually acquire them by acquisitive prescription (“usucapión”), which means becoming the owner through the passage of time. In most of the rest of Spain, the Spanish Civil Code (“Código civil”) does not regulate it in detail, but the courts allow it with similar content.