The assets of the deceased prior to acceptance are called ‘unclaimed inheritance’ and constitute a separate asset waiting for an owner. After acceptance, the inheritance goes entirely to be part of the assets of the heir (or heirs), unless there is an acceptance with the benefit of inventory, in which case it remains separate. The unclaimed legacy requires three conditions:
● missing acceptance of heredity;
● that the named is not in possession of the assets of the estate;
● that a trustee of heredity has been appointed.
When the first two conditions occur, the Court of the district where the succession was opened may also officially appoint a trustee of heredity who proceeds by using the powers defined by the Civil Code. The curatorship has a cost that falls on the assets of the estate. The procedure occurs in the following way:
a) when the inheritance has a consistency that justifies the receivership (unlikely the Court will appoint a guardian for a legacy of a small sum of money);
b ) when there is “uncertainty in identifying the subject’s owner” or and any known creditors;
c) in the event that the assets of the deceased requires active and urgent management, for example, because it is a company that was managed by the deceased;
d) if the inheritance is already the subject of litigation;
e) of action of one or more named or third parties (creditors).
The trustee is liable:
● to proceed with the inventory of heredity. Occasionally a deed is necessary in order to know how much is “in the fund”. This may be necessary because the deceased has left a tangle of economic relations that would make a very complicated investigation in this sense, or because in some cases, even when the inheritance consists of only loans (and therefore there are no debts), to regulate the value of which can be complicated;
● to exercise this right and to promote their reasons (for example, built-in or reminder of expired loans or those about to mature);
● to respond to the demands brought against the legacy;
● to administer the legacy;
● to deposit the money which is in the inheritance or is derived from the sale of movable or immovable property (which form part of the deceased’s estate) with the postal office or at a financial institution designated by the Court;
● to give an account of its administration (headed by the Court, but also to potential heirs who take over).
After his appointment, the possessive actions
and measures to fulfill the protective acts on the inheritance pass to the trustee: unlike the named, the trustee (as well as possibly the executor) not only has the power to act but also the duty. In fact, the trustee manages the inheritance assets on behalf of the inheritor (or any future heirs), even against the will expressed by one or more named persons. As this may provide the payment of the debts of the estate and legacies. It will then be the Court which divides the proceeds from the settlement between the heirs, once legal disputes have been resolved. The sale of real estate may be authorized by the Court by order only in cases of necessity or evident usefulness. The powers of the trustee shall cease if the inheritance is accepted.
Unclaimed inheritance is distinguished from inheritance lying vacant. In the cases when there are no more people who could possibly accept the inheritance, the inheritance goes to the state.