Inheritance: how to find out if there are debts to pay and how to negotiate?

Inheritance: how to find out if there are debts to be paid and how to negotiate?

By Fabiana Holtz

Image: Freepik

São Paulo – The discussion about the division of an inheritance (also called (estate) always raises a noisy and often technical debate about what is fair or not in the sharing. Dealing with taxes, basic bills such as rent, water, electricity, credit installments and telephone, among other more complex debts at a time as delicate as the loss of a loved one can seem insoluble and exhausting.

The fastest way to carry out this process is often to count on the help of specialized legal professionals. The answer to this question lies in the hands of the inventor.

Without an inventory, the obligation to prove that the debt exceeds the inheritance falls on the heirs, teaches Samantha Teresa Berard Jorge, lawyer specializing in family and succession law, estate and succession planning at Briganti Advogados. Having professional help also helps to avoid mistakes or fraud attempts, which can make it difficult to release the estate.

According to the lawyer, transfers made to “empty” the inheritance, simulated donations or fake shares can be annulled if they are discovered. “And this has a direct impact on the division of assets already registered in the name of the heirs”, he explains.

How to negotiate inherited debts?

The inventory, who will be one of the heirs appointed to closely monitor the inventory, with the help of a lawyer (to be hired), must lead the negotiations of these debts and direct their payment. Depending on the situation, judicial authorization may be required for agreements.

Once appointed, the executor becomes responsible for managing the estate and is authorized to seek information about assets and any debts left by the deceased from public bodies and financial institutions.

If there are resources available in the deceased person's accounts, these amounts can be used to pay off the estate's debts, in some cases with judicial authorization.

An heir does not have the risk of losing their own assets due to an inherited debt, and a bank cannot ask to block the heir's assets to pay off an estate debt.

This is because legally the heir's assets have no relation to the inheritance, in accordance with article 1,792 of the Civil Code, which deals with the principle of responsibility.

Otavio Pimentel, partner at PHR Advogados and specialist in Family and Succession Law, highlights that this article guarantees that the heirs will only be affected by the estate's debts up to the limit of what is inherited.

In theory, the assets will be used to pay off these debts and, if there are more debts than assets, there will be nothing left for the heirs.”

It is also possible for the inventor to make these payments with their own resources. In this case, he records the expenses in the inventory accounts and can be reimbursed later by the estate, says Pimentel.

What type of debt can ‘consume the inheritance’?

According to André Pizarro, lawyer at Peluso, Guaritá, Borges e Rezende (PGBR) Advogados, specialist in tax and family law, as a rule all debts left by the deceased can be inherited and must be paid up to the limit of the estate.

They are part of the list of debts that can be paid off with the inheritance:

• Financing (except real estate with specific insurance)
• Credit card debts and bank loans
• Open taxes (IPTU, IPVA, Income Tax)
• Condominium debts
• Accounts and contractual obligations in general

These debts are paid by the estate during the inventory, even before sharing among the heirs.

Debts related to future alimony are automatically settled upon death – except alimony debts already due before death, which form part of the estate.

In what situations does the debt expire and not enter inventory?

According to lawyer Pedro Brito, the general statute of limitations for debts is 10 years – Disclosure

The general limitation period is 10 years, but the law sets other counts and periods for different types of credits, explains Pedro Brito, partner in the Corporate and Real Estate Law practice at Maneira Advogados.

According to him, it is first necessary to analyze each debt individually.

"For example, a rental debt, if not collected within three years, cannot be claimed against anyone and should not be included in the inventory. A labor debt not collected within two years, in the same way, should not be part of the universe of obligations to be paid with the inheritance", he explains.

What about when the family is low-income?

Regarding the payment of fees to lawyers, it is important to know that for this it is possible to determine a percentage of the inheritance that will be allocated to the professional. In certain situations of greater social vulnerability, the Public Defender's Office may be called. The family can also request a Legal Aid Board to have access to a lawyer.

It is also possible to renegotiate this type of debt at traditional fairs such as Serasa Limpa Nome, in a practical and quick way. The bank fairs and Serasa are considered quite accessible in the opinion of the experts consulted by VIVA. There, the executor can approach banks or trading platforms to obtain aggressive cash discounts using the estate's own money. And banks have a great interest in closing agreements to avoid waiting years for the end of a judicial inventory.

https://viva.com.br/dinheiro/heranca-como-descobrir-se-herdei-dividas-e-onde-negociar.html