Considerations regarding the Retransmission of the Inheritance in the New Civil Code

By Schin, George Cristian; Ciucă, Liviu Bogdan | Contemporary Readings in Law and Social Justice, July 1, 2017 | Go to article overview

Considerations regarding the Retransmission of the Inheritance in the New Civil Code


Schin, George Cristian, Ciucă, Liviu Bogdan, Contemporary Readings in Law and Social Justice


1.Introduction

According to Civil Code (article 957-962), a person must fulfil three conditions in order to be able to inherit: to have succession capacity, to have succession vocation and not to be unworthy in order to inherit. Consequently, in establishing the inheritors in case of succession file instrumentation, the notary public analyses in first place if the persons that pretend a right to inheritance fulfil the first condition, namely if they have succession capacity. A person has succession capacity (has the capacity to collect an inheritance) if it exists at the moment the succession procedure is started.

2.The Applicable Regulation

Accordingly, there are distinguished three situations where a person can collect the inheritance (according to the correlation between the person's existence and the moment of the death of the person that leaves the inheritance):

In own name - the inheritor pretends hereditary rights due to the personal quality as legal or testamentary inheritor;

By succession representation - the legal inheritor (not the testamentary one also, as the succession representation is specific only to the legal inheritance) - representative - pretends the hereditary rights of his/her ascendant - represented - deceased at the date the inheritance procedure is started, goes up in his/her place, rank and rights;

By retransmission - the legal inheritor (in own name or by representative) or testamentary inheritor, surviving for a short period to the deceased, obtains the succession of the latter and cumulated with its own, leaves to its own legal or testamentary inheritors (Deak and Popescu, 2013: 73.) In practice, it would project as follows: Deceased A, departed on 14.01.2012, has as persons with rights to inheritance B - the surviving wife - and their two children C1 and C2. The surviving wife B had deceased on 17.08.2013 (as could be noticed, the deadline for the succession option provided by article 1103 paragraph (1) Civil Code expired) and has as persons with rights to inheritance C1, C2 (in common with the deceased husband A) and C3 (from the first marriage). For the first succession, the one of A, there will be established what persons with rights to inheritance have accepted the inheritance. The two children, C1 and C2 will personally declare that they have accepted the succession, and for B (alive at the date the succession for A was started), her inheritors, respectively C1, C2 and C3, will declare that she had accepted tacitly her husband's inheritance. For the second succession, the one of B, all three children declare that they accept the succession. In the estate, it is comprised a real property, common for the two spouses, A and B. Accordingly, in the succession of the first deceased, A, it is comprised the share of 1/2 from the real property, and the inheritors are A - the surviving wife - with a share of 2/8 and C1 and C2 - the descendants - with a share of 3/8 each. In the succession of the deceased B, there will be registered in the estate the share of 1/2 (common good share) + 2/16 (2/8 from 1/2, share inherited from A), resulting a share of 10/16. The inheritors are C1, C2 and C3, with a share of 1/3 each. Finally, the share held from the real property, by each inheritor, will be the following: C1 - 3/16 (the share of 3/8 from 1/2 inherited from A) + 10/48 (share of 1/3 from 10/16 inherited from B), resulting a share of 19/48, C2 - 3/16 (share of 3/8 from 1/2 inherited from A) + 10/48 (share of 1/3 from 10/16 inherited from B), resulting a share of 19/48 and C3 - 1/3 from 10/16 (share inherited from B), resulting a share of 10/48.

The retransmission of inheritance operates even if the inheritor - deceased within succession option term of one year - did not exercise this right (did not accept, but neither did it give the inheritance up). …

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