Possibilities of Disinheritance after the statutory Acceptance of the Inheritance

Legal Insight

April 2019

George Kefalas, LL.M. (mult.), Μ.Sc.

Summary: Few people have the legal knowledge necessary to know precisely the procedures under which they inherit. A significant number of people are unaware, for example, that in order not to become an heir they must renounce the inheritance or that this renunciation must be made within a certain time limit. The consequence of this is that persons often face claims from creditors of the deceased because of an inheritance which they are not even aware that they have accepted. I wonder what a son can do who, because he thought his deceased father had nothing in his name, thought that if he did not accept the inheritance he had no obligation under it, and suddenly the bank asks him to pay a staggering amount for his father's loan? The following is a brief summary of the possibilities available to this heir. 

1.Introduction

According to the inheritance law in force in Greece, from the moment of the death of the deceased, his heirs acquire his inheritance immediately and without any other procedural action. If for some reason an heir does not wish to acquire the deceased's estate (e.g. because the deceased had large debts), then he or she must make a declaration of renunciation of the inheritance within a period of four months, which starts from the moment the person in question learns that he or she is the heir of the deceased. If he does not make a declaration of renunciation within that four-month period, he shall be deemed to have accepted the succession, with the result that he acquires both the assets of the deceased and any debts of the deceased. 

The above provisions are little known to the average trader. There are quite a few who consider that, since they do not go through any procedure to accept the inheritance, this automatically means that they renounce it and therefore have no responsibility for the debts of their deceased relative. This misconception, combined with the fact that in recent years, particularly due to the economic crisis, many inheritances have become over-indebted (e.g. because the deceased heir's father was a guarantor on loans that have not been repaid), often creates very dangerous situations for heirs.

What can an heir do in such a situation? The possible solutions are set out below:

2. The heir does not know that he is inheriting

The first lifeline for an heir who has unwittingly inherited the deceased's debts because the above-mentioned four-month period has elapsed without renouncing them is to claim that he did not know that he was an heir. A person's ignorance of his right to inherit may be due to several reasons. In particular:

a) The heir is unaware of the very facts that make him or her an heir. Thus, for example, the heir may be unaware of the death of the deceased himself or of the existence of a will under which he inherits, or he may be unaware that the original heir for some reason did not accept the inheritance and therefore the inheritance goes to him. These cases are common, particularly where the inheritance eventually goes to a distant relative (e.g. the nephew of the deceased) and where there is no frequent contact between members of an extended family. In this context, the judgment of the Thessaloniki Multi-Member Court of First Instance No. 7110/2018 held that the four-month period for disinheritance had not commenced as regards the claimant's brothers and sisters, who had not been informed that the deceased's children and grandchildren had previously disinherited the estate, while the fact that they maintained formal family relations with each other did not negate the brothers' ignorance of the disinheritance of the other family members. 

b) The heir is unaware of the system of inheritance, i.e. he is unaware that on the death of the deceased he himself acquires the inheritance. The ignorance here lies not in the facts, as in the above case, but in the law of succession itself, which provides that on the death of a person his property automatically passes to his heirs. This case is hardly accepted by the courts, because most people are well aware that once the deceased person dies, he is inherited by his heirs. It may, however, be accepted in respect of persons who could have no knowledge of this. 

In both the above cases it is accepted by our courts that until such time as the heir knows that he inherits, the four-month period of disclaimer does not run. Therefore, the heir should, as soon as he learns of the critical facts that make him an heir, if he does not wish to inherit, hasten to submit the declaration of disclaimer to the competent Magistrate's Court.  

3. The heir is not aware of the legal provisions on the acceptance and renunciation of the inheritance

The situation is different when the heir knows that he is an heir, but is unaware that he must renounce in order not to receive the inheritance and that the renunciation must be made within a certain (four-month) period. 

In this case, the heir is in fact ignoring the provisions mentioned in the introduction. Therefore, once four months have elapsed since the heir learned of the inheritance, the heir is deemed to have accepted the inheritance. The only solution now is, within six months of learning the relevant legal provisions - i.e. that he must renounce the inheritance if he does not wish to do so, and within four months - to bring an action in the competent court for annulment of the acceptance of the inheritance (which follows from the fact that it was not renounced within the four-month period). The ground for annulment would be that if he had been aware of the relevant legal provisions, i.e. the obligation and the time limit for renunciation, he would not have allowed the four-month period to pass without action, but would have made a timely renunciation of the inheritance. Thus, the decision No. 11/2018 of the Volos Court of First Instance accepted the claim of the heiress, the daughter of the deceased, who was a primary school graduate and had never consulted a lawyer on inheritance issues, and annulled the fictitious acceptance of the inheritance, considering that she was unaware of the system of renunciation provided for by the Civil Code. 

Usually this ignorance on the part of the heir is removed when creditors of the inheritance are turned against him (e.g. the bank from which the heir's deceased father had taken a loan notifies the heir by way of an ex parte or payment order and asks him to repay the loan), in which case - logically - the heir turns to a lawyer who enlightens him in this respect. The specific factual circumstances are always decisive. By way of illustration, the Supreme Court's decision no. 827/2017, referring to the Court of Appeal's judgment, accepted that any average prudent person receiving a claim from a creditor of the estate would not neglect, but would address a lawyer. In so ruling, it rejected the appellant's allegations of ignorance of the provisions relating to disinheritance. 

It would be difficult, however, for a lawyer, a notary or a law student or a person who had, in the past, renounced other inheritances to plead ignorance of those provisions. Typical is the decision No. 506/2017 of the Patras Court of Appeal, which held that the relative ignorance of the plaintiffs, a retired former electrician and a landlady, was justified because "due to their professions they lacked legal training".

Consequently, when the heir becomes aware of the obligation and the time-limit for renunciation, he must, within six months from the time he acquired that knowledge, bring an action seeking the annulment of the implied acceptance of the inheritance. Once he has succeeded in having the implied acceptance annulled by the court, he must then submit a declaration of renunciation of the inheritance to the competent Court of Justice. 

4. Ignorance as to the assets and liabilities of the estate does not justify the cancellation of the acceptance

Particular attention should be paid to the following: If the heir accepts the inheritance, either by submitting a declaration of acceptance or because he did not submit the required declaration of renunciation in due time, he cannot seek the annulment of this acceptance on the grounds that he did not know the exact amount of the assets (assets) or liabilities (debts) of the inheritance. Thus, for example, if a person accepts the inheritance, believing that the deceased, e.g. his father, had no debts, and then a creditor comes forward claiming that the deceased owed him money, the heir cannot seek to have the acceptance of the inheritance annulled because he did not know the specific debt. The only avenues of recourse for the heir in question are those mentioned immediately above.

5. Instead of an epilogue

Often persons suddenly find themselves debtors because they were unaware that they had inherited a debt or because, despite the fact that they knew about it, they were unaware that, in order not to be liable, they had to file a declaration of renunciation of the inheritance owed to them in time (in particular within four months from the moment they learned of their status as heirs). In such cases, the creditors of the estate will rush to recover their debts from the heirs in question, unless the latter take the steps set out above and succeed in releasing themselves from the inheritance which is undesirable to them.