What is an estate in abeyance?
An estate in abeyance is the situation in which an estate remains from the moment of the deceased person’s death until it is accepted by the heir. During this period, the estate has no definitive holder: there is a pool of assets, rights and obligations that does not yet firmly belong to anyone, while the person called to inherit decides whether to accept or renounce the inheritance.
Contents
Origin and legal basis
The Spanish Civil Code does not expressly define the estate in abeyance, but its existence follows from the succession system. Although succession rights are transferred from the moment of the deceased person’s death (Article 657 of the Civil Code), acquiring the status of heir requires acceptance (Article 988 of the Civil Code). Between these two moments —the opening of the succession and acceptance— the estate remains “in abeyance”.
Article 1934 of the Civil Code also refers to this situation by stating that limitation periods produce effects both in favour of and against the estate before it has been accepted and during the time allowed to make an inventory and deliberate.
Procedural capacity
Although it does not have legal personality of its own, an estate in abeyance may be a party to legal proceedings. The Spanish Civil Procedure Act recognises the capacity to be a party of asset pools or separate estates that temporarily lack a holder (Article 6.1.4 of the Civil Procedure Act).
Therefore, an estate in abeyance may sue or be sued, for example, by the deceased person’s creditors.
Administration of an estate in abeyance
During the abeyance period, it is necessary to preserve and administer the assets. This management may correspond to:
- The executor appointed by the testator, if any.
- The administrator appointed by the court in judicial inheritance division proceedings.
- The persons called to inherit, who may carry out acts of preservation and administration without this amounting to tacit acceptance (final paragraph of Article 999 of the Civil Code).
Duration and risks
The estate in abeyance ends when the heir accepts the inheritance —at which point it becomes an accepted inheritance— or when, after all those called to inherit have renounced it, the destination of the estate is determined.
A prolonged period of abeyance creates risks: deterioration or loss of assets, accrual of debts and taxes —such as Inheritance Tax, whose filing period runs from the date of death— and possible claims by creditors.
For this reason, it is advisable to resolve acceptance or renunciation as soon as possible and, where necessary, request the appointment of an administrator.
Practical summary
| Question | Answer |
|---|---|
| When does an estate in abeyance exist? | From the deceased person’s death until the inheritance is accepted or renounced. |
| Does it have legal personality? | No, but it may act in court as a separate estate without a definitive holder. |
| Who administers it? | The executor, a court-appointed administrator or the persons called to inherit through acts of preservation. |
| When does it end? | When the inheritance is accepted or when the destination of the estate is determined after renunciation. |
| What risks does it involve? | Deterioration of assets, debts, pending taxes and creditor claims. |