One of the great guarantees provided by the Civil Code regarding something as natural as death, is the disposition of the assets of the deceased (i.e., the deceased) to his loved ones who accompanied him during his lifetime and/or those who share a blood relationship, affinity or civil relationship with the deceased. This is not only to prevent the assets of the deceased from being dispersed without any owner, but also to protect the family circle of the deceased or those who have the right. Therefore, in order to make this transfer of assets effective, it is necessary to initiate a succession process, so that these assets are assigned to the legitimate heirs; this being done in front of a Family Judge or through a Notary, presenting a previous agreement on how these heirs will assign the liabilities and assets of the deceased.
From the above, it is easy to assume that, if the assets of the deceased are involved in the middle of a succession process, this would mean that they cannot be subject to purchase-sale because it would be understood as an affectation of the succession process and of the rights that are also shared by the other heirs (if applicable). However, the Civil Code provides in its Article 1857 that for the perfecting of the sale of goods such as real estate, easements or also inheritance rights, it is necessary to perfect the transaction by means of a Public Deed, so it is possible to carry out such procedure.
However, it is necessary to take into account these particularities of this possibility, since they go beyond the fact of just buying the property, signing a Public deed and then disposing of the property as lord and owner.
Once the deceased leaves this world, he or his heirs acquire possession of these assets left by the deceased, however, according to Article 757 of the Civil Code, this does not mean that he or his heirs immediately acquire the disposition of these assets, since this must be made effective through the decision of a Family Judge or the work of adjudication of the assets before a Notary.
The foregoing makes it clear that, as long as the respective adjudication has not been made, the way in which these assets will be disposed of can be agreed among the heirs. Here is then where we get into the matter, since it is possible that there is only one heir, there are three properties left by the deceased and he wants to dispose of one of these for sale before the formalization of the respective work of adjudication of the property or ruling by a Judge.
For the specific case, the law provides for what is known as the figure of assignment of Inheritance rights, which is nothing more than the provision given by the legislator to the
citizen to be able to assign to a third party, in whole or in part, his rights as heir to the inheritance, which, as mentioned above, is perfected with a Public Deed. Once this assignment of
inheritance rights is perfected, it gives this third party the right to initiate or participate in the work of partition or adjudication before the Family Judge or Public Notary who carries out the succession process, in order to be able to acquire the disposition of the real estate, as provided in Article 757 of the Civil Code, previously mentioned.
However, this procedure acquires another nuance when there is more than one heir involved in the inheritance. For this particular case, the procedure is the same, with the exception that, even when an heir is disposing of his part of the inheritance, it is important that in the public deed there are the signatures of all the heirs or that they have granted a special power of attorney to one of the heirs, in order to represent them within the process, so that such assignment of inheritance rights is effective. Likewise, if this purchase-sale of these inheritance rights occurs, the proceeds of such sale or assignment must be distributed among all the heirs.
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About the author:
Samuel Fuentes, is a lawyer from the Universidad Jorge Tadeo Lozano, he is part of the legal team of Gestiones Empresariales López & James Colombia and specializes in the areas of Criminal Law, Human Rights and labor settlements.