When the former is Family. Succession - LEGITIMATE-(Dr. Alejandro Cabral) OUTLINE ON legitimate succession or intestate By: DR . Alejandro CABRAL (Appointed Lawyer and Professor at the Faculty of Law, UNR)
In the previous edition under the title WILLS IN ARGENTINA, developed the theme concerning the so-called probate.
In this issue we will address basic and legitimate succession generically or intestate, ie when there is no provision probate, wills.
Art. Argentine Civil Code 3279 (CCA) defines succession as "the transfer of assets and rights that make up the estate of a deceased person, the person who survives, to which the ACT or the testator called for it. The call to receive the estate is named heir in this Code, prescribe the referenced legislation.
It should be mentioned that henceforth use the term "cause" for purposes of identifying the deceased.
speak of legitimate succession (or intestate or intestate), when the call comes from the law. And this is itself, which establishes an order of succession. A contrario, probate is the basis in the will of the deceased, expressed as a valid will.
Art. CCA 3282 states that "The succession or inheritance law, opens both legitimate succession as in probate, since the death of the author of the succession, or the presumption of death in cases prescribed by law." The note by the author of the article alluded to the Argentine Civil Code states that Dalmacio Velez Sarsfield "death, the opening and the transmission of heredity are caused in the same instant. There including the smallest interval of time are indivisible. " Hence, it is considered that the heirs immediately succeed to the deceased, with retroactive effect as of the death of the author of the succession (art. 3415 CCA).
At this point it is valid to ask, who is a probate? And the answer is given that the judicial process whose purpose is the transmission of the inheritance of the deceased-called cause, to his successors, whether they are called by law or by will.
In our province, Santa Fe, both the Intestate Succession and in the Probate, are governed by the same procedural steps, and it will always require the declaration of heirs, to Unlike other provinces that require the order approving the Testament.
in inheritance proceedings are competent to deal with them, the judge of the last domicile of the deceased (section 3284 CCA). This rule is of public order, and then the competition can not be extended, even with the agreement of all concerned. And even the same Supreme Court of Justice's Office ruled in the case Himmelspach, CARLOS EMILIO S / SUCCESSION that even if the deceased left only one heir, the succession should be promoted in the place of last domicile of that, ergo the cause (SCJ, 07.18.1968, JA, 1968-V-341).
Another point stressed is that in our law, like all modern law is not an heir but he wants to be. While inheritress acquired inheritance from the time of death of the person to inherit, until there is an acceptance (whether express or implied) of the estate, not consolidating as heir. It is from the acceptance of inheritance, which is fixed in the same property (art. 3344 CCA).
Art. CCA 3357 states that "Even after nine days since the death of one whose estate is concerned, can not attempt any action against the heir to accept or repudiate the inheritance. The judges, at the request of interested, meanwhile, make the necessary steps for the safety of property. " This standard includes a long-standing institute, the period of "mourning and weeping" established for the first time in 115, Justinian Ninth. According to the doctrine Fornieles, the deadline agreed to pain, and is said to have been imposed by Justinian, moved by the hardness of a creditor who seizes an heir when he returned from the funeral of his child, and debts.
Now, it happens with the Intestate Succession? It is argued that the legitimate succession preceded in time the Probate.
Our right-of-organized civil-oriented computing based on linear relationship, and on that basis will arrange the order of hereditary calling.
The enactment of Law 23,264 has substantially changed the composition of the orders and the system of priority in our Code.
The current art. CCA 3545 states that "The Intestate Succession correspond to the descendants of the deceased, their ascendants, the surviving spouse, and collateral relatives within the fourth degree, in the order and according to rules established in this Code. There being no successors, the goods correspond to the national or provincial. "
So such that the order of succession would be: First: progeny; Second, the Ancestors, Third: the spouses, which concurs with the ascending and descending, and excludes the side; Fourth collateral.
Within a line, the nearest degree relative excludes the more remote degree (art. 3546 CCA) except the right of representation. For example, in the collateral line, Brother (2 grade) excludes the cousin (4 th grade).
happen
forms are, says Fornieles out-standing in its own right is presented to collect the inheritance by virtue of being the closest relative in the line to which it belongs. The child or children of cause it inherited in its own right, being in the first grade of a straight line down, which is the most privileged. And succeed by right of representation is to collect the inheritance that would have touched a predeceased ancestor, whose place it occupies.
Art. CCA 3588 states that "the absence of those entitled to inherit under the above provisions, the decedent's property, whether real or personal property which is situated in the territory of the Republic, whether alien or citizen of Argentina, under the Treasury , provincial or national levels as rigieren regardless of the laws in this regard "
I reported above is a mere description more generic features of the Intestate Succession, and in future issues we will develop and study together, with more detail the various legal institutions that make up the Probate and make your interest.
