The belief is widespread that once a person dies, the debts he maintains are with him and, at the same time, there are many creditors who fear the death of their debtor believing that they will lose the possibility of collecting if that happens. Reality, on the other hand, is clear and categorical in our Law: debts are inherited. For better or for worse, it benefits some and harms others, it is an incontestable fact in our system that, nevertheless, has some nuances and can generate some doubt: Are all debts inherited? Who will the creditor claim now? Is the way in which the heir has accepted the inheritance indifferent? What happens if you reject it?
Let’s dig a little deeper into this interesting matter:
I. Obligations after death. Debts are inherited.
What happens to the debts of a person after his death?
Our Civil Code is quite clear when it indicates what is included in the inheritance of a person. Thus, article 659 says that ” the inheritance includes all the assets, rights and obligations of a person, which are not extinguished by his death.”
Article 659 says that ” the inheritance includes all the assets, rights and obligations of a person, not extinguished by his death “
Therefore, let’s begin by underlining that ” all ” expression. Indeed, upon the death of a subject, if he left obligations pending compliance, they are integrated into his inheritance and will correspond to his heirs, provided they accept the inheritance.
And we do not make this nuance regarding the acceptance of inheritance lightly: Spanish law gives us the following possibilities when the death of our deceased occurs and we are called to succeed him:
1º- We can accept the inheritance purely and simply : In this case we consent that the part that corresponds to us in the inheritance of the deceased passes entirely to our patrimony, with its assets and rights, but also with all its obligations, with which the creditors that were of the deceased may address us regarding the obligations of which we have become holders as a result of the acceptance of the inheritance.
2º- The second possibility is to reject the inheritance in full : If we opt for this possibility, none of the assets of the deceased that we would have received by inheritance, pass to our heritage but, likewise, we do not assume any of the obligations that would have left pending none of the charges that will weigh on the goods that he left at his death. In these cases, the debts are inherited by increasing the part of the inheritance that corresponds to the other co-heirs who, if they accept, will be the ones who must be liable for the burdens that such assets and rights entail.
3º- Finally, the Civil Code provides a third option, which is to accept the inheritance for the benefit of inventory or use the right to deliberate : This is the right that the law grants to the call to inheritance to inventory the heritage ( goods, rights and obligations) left by the deceased and, in view of the result, decide whether or not to accept the inheritance (right to deliberate); or the right of the heir to accept his share of the inheritance, once satisfied the debts of the deceased that had corresponded to him with assets of the same inheritance (acceptance for the benefit of inventory).
This third option is, therefore, a very interesting possibility not to compromise personal assets, when it is suspected that the deceased’s assets may not be sufficient to meet the burdens that the inheritance incorporates. The successor will have a term of thirty days from knowing his heir quality to make this decision and must formalize it before a notary.
Are all debts inherited?
For the purpose of answering this question, we must turn our attention to Article 659 CC: ” the inheritance includes all the assets, rights and obligations of a person, not extinguished by his death.”
This final sentence of the transcribed precept is already letting us understand that there are some obligations whose fulfillment corresponds to a specific person and that, disappearing, this obligation loses its raison d’être and vanishes.
We refer to those cases in which an obligation to make a personal agreement was agreed, in other words, a person agreed to receive a benefit from another, hiring it precisely in accordance with its qualities, so that such benefit cannot be carried out by a third party. and, if that provider dies, the obligation disappears with him.
It is also the case of obligations that arise as a result of a criminal conviction, for which only the convicted person is responsible, and therefore liable.
there are some obligations whose fulfillment corresponds to a specific person and that, disappearing, this obligation loses its raison d’être and vanishes.
Likewise, another very personal obligation would be the one derived from the provision of food, which corresponds only to certain persons determined with respect to others, legally established: spouses, parents, children and, where appropriate, siblings.
II. Possibilities of the creditor after the death of the debtor.
Should the creditor give up his credit once the debtor dies?
Based on what we just saw, the answer would be negative. We already know that the debts are inherited and that in the inheritance that corresponds to the successors of the person obligated to pay, the corresponding obligation will also be included, so that, once the death has occurred, the creditor may go against the heir to collect the due.
In the event that the partition of the inheritance has not yet been made, the creditor may object to it being carried out until the amount owed to it is satisfied or the payment is secured.
In the event that the partition of the inheritance has not yet been made, the creditor may object to it being carried out until the amount owed to it is satisfied or the payment is secured, as well as to prosecute that correspond against the hereditary community.
In the event that the inheritance is accepted for the benefit of inventory, whose characteristics we have already explained, the creditor may be charged with the assets that have been awarded to the heirs without, however, being able to be directed against the personal assets of the heir.
What options, then, does the creditor have to collect when the debtor dies?
Consistent with the above, we already know that debts are inherited and we can reassure any creditor who has doubted that he will be able to collect, in view of the fact that his debtor has died. Assuming that the heirs accept the inheritance purely and simply, he will have the same possibilities of action to attempt the recovery, which he faced with the deceased deceased. Already in our post “Tips to collect debts quickly and efficiently” we review what are the best methods to achieve recovery, by judicial or extrajudicial means (take a look to remember it).
The conclusion we obtained is that the possible extrajudicial actions that are traditionally used for claiming debts are tiring and have little effectiveness. In many cases, they even degenerate into the hiring of companies that carry out activities on the verge of legality and that ultimately end up being expensive and dangerous.
The possible judicial actions, which usually refer to the trial, also do not offer much more security, proving to be a longer and more costly process than was desirable and which, in many cases, is also ineffective in obtaining materially the amount due, even when there is a favorable sentence. It is the problem that we explain in our post “Lack of effectiveness of the monitor to recover unpaid”.
Finally, our proposal always involves innovating and resorting to the mechanisms that are most up to date with the reality of companies and professionals. Henry Tyfo is the company that has managed to transfer the most effective system for the prevention of delinquencies and collection of defaults that exists in our system, such as that of delinquent files, but opening its use to any company, autonomous or even private, and adapting its operation to new technologies and the Internet era.
Henry Tyfo is the company that has managed to transfer the most effective system for the prevention of delinquency and collection of defaults that exists in our system, such as that of delinquent files, but opening its use to any company
However, remember that if the heir has accepted the inheritance for the benefit of inventory, you can only try to collect the same assets that make up the estate. That means that if the goods are insufficient to satisfy the payment of the total debt, you will have to settle for the amount up to which the goods have been achieved. Also, if there are several creditors, you will have to share with them what there is. It is true that, in these cases, we may be talking about loss of part of the debt, but it also assures us of receiving a more or less fast and certain amount with respect to a debt that, perhaps, we did not expect to collect anymore.