LEGAL BLOG
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You will inherit even if you do not want to!
How do we protect ourselves from inheritance debts?
March 1, 2019
Since March 1, 2019, the Moldovan legislator has also pleased us with new regulations in the field of inheritance, among which we highlight:
- exclusion of the 6-month deadline for acceptance of inheritance;
- mandatory identification of all heirs;
- disinheritance of any successor by will;
- introduction of a 3-month period for refusing the inheritance;
- insolvency of the inheritance;
But what does this mean for all of us, for the beneficiaries of this law?
It represents a 180-degree turnaround of everything that means receiving/accepting succession.
Previously, to inherit you had to express your intention and take certain actions, for example, filing a declaration with a notary or entering into possession.
Moreover, these actions had to be carried out no later than 6 months after the opening of the succession, otherwise the person was deprived of the right to inherit, for which there were legal proceedings to reinstate the missed deadlines.
Previously, to inherit you had to express your intention and take certain actions, for example, filing a declaration with a notary or entering into possession.
Moreover, these actions had to be carried out no later than 6 months after the opening of the succession, otherwise the person was deprived of the right to inherit, for which there were legal proceedings to reinstate the missed deadlines.
Whether or not you want to receive an inheritance, you will receive it by force of law if you are the successor.
Now the situation is different and the law has created a presumption of inheritance without the need for acceptance. In other words, whether or not you want to receive an inheritance, you will receive it by force of law if you are the successor.
What is wrong with that? It is as if we are relieved of the need to meet a deadline, avoid the risk of missing the deadline and the need for reinstatement, etc.
But here let us not forget that along with the received property the heir also receives the debts of the defunct (dead person), and in the situation where the debts prevail over the received ones, the payment of the debts is made from the account of the one who inherited and in this case we have an unfavourable result - the person forcibly receives foreign debts to be paid.
What is the solution in such cases?
Of course, on the one hand the legislator has provided a time limit for refusal. However, the forced nature of the succession is diminished by the provision of a three-month period within which the person may refuse the succession. In this way, you will already have to show your intention to refuse by submitting a declaration to the notary, which is a 180-degree change from what was previously the case.
On the other hand, what do we do if we cannot refuse the succession, the circumstances being sufficient for this case?
On the other hand, what do we do if we cannot refuse the succession, the circumstances being sufficient for this case?
Insolvency of the
inheritance
inheritance
One of the novelties of the law is the so-called - insolvency of the inheritance. What is this and how do we use it?
In the Republic of Moldova, insolvency is more often assimilated with the term bankruptcy. It is mainly used for companies that have reached an economic impasse and are unable to pay existing debts. Thus, a complex procedure is used with the participation of the court, which is most often directed to the sale under the control of creditors of the company's assets and the distribution of the resulting money proportionally to all creditors.
This institution was created to help heirs who have inherited more debts (liabilities) than income (assets) and wish to protect their own patrimony from foreign creditors.
The current law basically obliges heirs who have received an inheritance and find insufficient assets from which to cover the debts of the defunct to submit an application for insolvency of the inheritance.
The penalty for failure to comply with the legal provisions is simple - the heir will be liable with his or her own assets for the foreign debts inherited.
The current law basically obliges heirs who have received an inheritance and find insufficient assets from which to cover the debts of the defunct to submit an application for insolvency of the inheritance.
The penalty for failure to comply with the legal provisions is simple - the heir will be liable with his or her own assets for the foreign debts inherited.
In order to avoid such unfavourable effects, we need to be aware of the following aspects.
The time limit for applying for insolvency of the inheritance estate
Although the law does not provide for an express deadline for the heir to file the application, it uses the phrase "without delay", which implies that as soon as possible after the acceptance of the succession, the heir must file an application with the court, based on the results of the inventory of the debtor's estate.
On the other hand, at least one heir cannot file the creditor's application to the inheritance if two years have elapsed since the acceptance of the inheritance.
On the other hand, at least one heir cannot file the creditor's application to the inheritance if two years have elapsed since the acceptance of the inheritance.
Designation of a special person to administer the inheritance estate
Similar to general bankruptcy proceedings, heirs are to nominate an authorized administrator, that person who specializes under current legislation in the administration of out-of-court and court-ordered liquidation proceedings for legal persons and entrepreneurs. It is a relatively new profession for the Republic of Moldova, obtaining a complex status since 2014.
The designation of the authorized administrator is an important step for the heir, because any action related to the inventory, evaluation, sale of assets and this person will carry out payment of claims.
The designation of the authorized administrator is an important step for the heir, because any action related to the inventory, evaluation, sale of assets and this person will carry out payment of claims.
Court participation
Although we are accustomed to the idea that inheritance is something that only takes place with the participation of the notary, once the procedure has started, a significant part of the actions are carried out in the courts with the participation of the specialized insolvency courts. At the moment, each court has judges specialized in insolvency matters.
Increase of expenses on account of legal proceedings
An important aspect is the increase of expenses due to the need to cover the costs of the insolvency process.
What is to be taken into account by the heirs is the need to bear additional expenses for the process where included, as appropriate:
Ordinary court costs;
Inventory, storage expenses;
Evaluation expenses;
Expenses related to sale, organization of auction;
Remuneration of the administrator of the proceedings, etc.
It should be noted that these expenses take priority over other payments and will reduce even payments to the defunct creditors.
What is to be taken into account by the heirs is the need to bear additional expenses for the process where included, as appropriate:
Ordinary court costs;
Inventory, storage expenses;
Evaluation expenses;
Expenses related to sale, organization of auction;
Remuneration of the administrator of the proceedings, etc.
It should be noted that these expenses take priority over other payments and will reduce even payments to the defunct creditors.
How do we act?
Steps to take:
If we have "received" an unwanted inheritance by missing the deadline for renouncing or we are unable to renounce, we must start insolvency proceedings no later than two years after accepting the inheritance.
We choose the appropriate authorized administrator.
We reserve additional funds to cover additional expenses.
We take appropriate measures to preserve the inherited assets and make the best possible use of them.
If we have "received" an unwanted inheritance by missing the deadline for renouncing or we are unable to renounce, we must start insolvency proceedings no later than two years after accepting the inheritance.
We choose the appropriate authorized administrator.
We reserve additional funds to cover additional expenses.
We take appropriate measures to preserve the inherited assets and make the best possible use of them.
Moldova, mun. Chișinău
str. București 31
str. București 31
Contacte
gheorghe.macovei@macovei.legal
Moldova, mun. Chișinău
str. București 31
str. București 31
Contacte
gheorghe.macovei@macovei.legal