Many queries come to the studio in relation to how “avoid succession”, Clients usually want to transmit their entire assets during their lifetime to their forced heirs, which is often not the best option.
According to our law, there is no absolute freedom to freely transfer all the assets that a person owns. When a person has forced or legitimate heirs and makes donations, they may eventually be subject to judicial review at the time of the donor’s death. In the event that these acts affect the legitimate hereditary portion since it cannot be altered, as it is established by law.
Are there advantages between donations and succession in economic terms, speed and security?
In both cases, there are advantages and disadvantages. The main debate is how to make a donation without entailing possible legal action by one of the heirs against the person who was the beneficiary of the donation.
Although donating assets while alive is permitted by law, the truth is that it contains exceptions. When a client tells us the idea of “Donate all your assets while you are alive to avoid succession”, we have to consider certain particular questions. In our country, the general rule, known as Protection of the Legitimateleads us in practice to question the client in order to know if he has children/parents and/or spouse, given that they are known “forced heirs” with the purpose that said donation cannot be judicially attacked.
These circumstances enable us to be able to advise the client, if it is advisable to make the donation, if any heir sees affected his legitimate portion of the inheritanceyou can initiate the pertinent legal actions to claim the part that would have corresponded to you.
What changes did Law 27,587 introduce to the donation regime and how do they affect donors and donees?
Law 27,587 has had in mind the protection of third-party sub-acquirers of registrable goods in good faith and for consideration who purchase goods whose antecedents come from a donation.
The new regime made it possible to eliminate the risk of purchasing a property acquired as a result of a donation made to a forced heir, and for the remaining co-heirs to eventually claim its restitution, which was previously known as “observable titles.” Therefore, if a person wants to buy a property that comes from a donation, and it is done in good faith and for consideration, he will not have to fear any legal action against him. This generated great progress by releasing many properties that were out of the real estate market due to this situation.
In relation to the scope of forced heirs, the sanction of the new law regulated the scope of the actions that exist between them, such as the collation action and the reduction action. The first is what each heir has against the other co-heirs to maintain equality between them, that is, to bring the monetary value of the donation to the mass of the inheritance. What the new law establishes is that only Money. The second, seeks to preserve the legitimate rights of the heirs against any person; Therefore, it will result in the property being returned to the succession, resolving the real right of ownership in the head of the donee.
It should be noted that current regulations allow 1/3 of the assets to be freely donated, without this being able to be reached by any legal action by the forced heirs, with the assets being evaluated at the time of the DONOR’s death.
What precautions should be taken when making a donation to avoid future problems with heirs?
At the time of completing the legal act, precautions must be taken, such as if a mother or father donates to a child who has two, the child who does not receive the donation could sign the deed to agree, renouncing to initiate any type of action. legal, as long as the latter has been compensated in the same act or previously.
There is still a long way to go in terms of donations and inheritances, which always leads to debate about the conflict of interests that has been present for decades between the freedom to dispose of personal assets, as opposed to equitable distribution based on protection. of the family. –
By: Dr. Lucia Bruñini.
by CEDOC
