Any person entitled to succeed to an inheritance is able to accept or renounce his share thereof.
The heirs inherit the legal identity of the deceased, which grants them the right to receive all of the property which was not addressed in the will. Heirs are also entitled to collect any debts owed to the deceased. Conversely, the heirs are responsible for settling any obligations or debts which would have been left by the deceased, to ensure that all of the legal commitments made by the deceased are fulfilled.
Prior to accepting an inheritance, the heirs must carefully evaluate whether it is in their best interest to do so. If they suspect that the deceased’s estate carries more debt than assets, they should consider accepting the inheritance with the benefit of inventory. This option allows the heirs to avoid personal liability for the deceased’s debts. Without proper precautions, the heirs may end up responsible for settling the testator’s outstanding debts.
Criminal responsibility ends with the death of the individual. Heirs or relatives cannot be charged with criminal offences allegedly committed by the deceased nor can they be punished for crimes for which the deceased was convicted. Despite this, the heirs are still obligated to address any civil claims that may be brought against the deceased, including those arising out of criminal offences.
Albeit no one can be forced to accept an inheritance, once an heir does accept it, the decision is final and they cannot later renounce it, even if they discover that the estate has more debts than assets.
Once accepted, an inheritance has retrospective effects, meaning that it is considered to be effective from the date the succession opened (ie. from the date of death of the testator) and not from the date of the acceptance of the said succession.
A potential heir must avoid unintentionally accepting an inheritance. Acceptance can be express through written documentation or implied through actions indicating intent, such as taking possession of the testator’s property. Actions such as funeral arrangements, property preservation or provisional administration do not count as acceptance.
Article 860(1) of Chapter 16 of the Laws of Malta[1] introduces the concept of renunciation by declaring that the renunciation of an inheritance cannot be presumed. Essentially what this translates to is that if there is the intention of renouncing one’s share of an inheritance, this cannot be made tacitly and must be expressed. In fact, article 860(2)[2] provides that renunciation of an inheritance can only be made by a declaration which is to be filed in the registry of the court of voluntary jurisdiction of the island in which the deceased resided at the time of his death or alternatively a declaration made by an act of notary public.
If an heir renounces to a testate succession,[3] they would also be forfeiting any rights to an intestate succession[4]. Consequently, an heir who has renounced cannot later claim ownership of assets omitted from the will by arguing that their renunciation applied only to the designated property specified in the will only.
However, despite this renunciation, an heir may still assert his right to the legally reserved portion of the estate. Moreover, an heir who has been granted a specific legacy retains the right to receive that particular bequest, even if they have renounced to the inheritance as a whole.
If an heir renounces to the inheritance, their share will pass onto the substitute heir, if one is provided for in the will. If no substitute heir is specifically nominated in the will, the inheritance will pass on to the co-heirs. In the absence of co-heirs, the inheritance will pass onto the next eligible person according to the rules of intestacy. Until someone accepts an inheritance, it is considered to be vacant. If no one accepts the inheritance, anyone may request to the court to appoint a curator.
An heir cannot renounce to an inheritance to evade creditors. If an heir renounces with the intention to avoid debts, the creditors may ask the court to accept the inheritance on the heir’s behalf. The court may then direct that the inheritance be used to settle the debts.
The general rule is that renouncing to an inheritance is irrevocable. However, an heir who has previously renounced may still later accept the inheritance under certain conditions. This is not allowed if: (i) The right to accept has expired through prescription; or (ii) The inheritance has already been accepted by other heirs.
To compel the heirs to decide on accepting or renouncing to the inheritance, any interested party may request the court to establish and set a deadline for the heirs to make a declaration. If the heirs fail to respond, the inheritance will be considered renounced.
Finally, an individual entitled to inherit who has taken actual possession of the property must renounce their right to the inheritance within 3 months from the date of death of the testator (ie. The opening of the succession) or from when they became aware of the inheritance. This however does not apply if the heirs accepted the inheritance under the benefit of the inventory.
For more information or assistance related to Succession law in Malta please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Civil Code.
[2] Chapter 16, Laws of Malta.
[3] Testamentary succession is when the testator has drawn up a will to express how he wishes to dispose of his property.
[4] Intestate Succession is when the testator does not draw up a will during his lifetime. In such cases, inheritance devolves upon the heirs according to law.