Does taking possession of inherited assets mean tacit acceptance of the inheritance?

The taking possession of inherited assets only equates to tacit acceptance if certain actions are carried out.
Tacit acceptance of the inheritance occurs when the person called to the inheritance performs an act that necessarily presupposes their intent to accept and that they would have no right to perform except in the capacity of an heir, under Article 476 of the Civil Code.

On this point, the case law has intervened in several rulings, and in clarifying the applicability of the provision in Article 476 of the Civil Code, it has identified a series of acts, the performance of which by the person called to the inheritance unequivocally implies acceptance of the inheritance.

Regarding the behavior of the person called to the inheritance who takes possession of the inherited assets, it is necessary to specify the boundary beyond which the mere act of possession determines their unequivocal intent to accept the inheritance and, therefore, to become an heir.

The relevant legal reference is Article 485 of the Civil Code, which expressly states that the person called to the inheritance, who is in possession of the inherited assets in any capacity, must, within three months from the opening of the succession or from notification of the devolved inheritance, draw up an inventory and, within a further 40 days, decide whether to accept or renounce the inheritance. If they fail to do so, they will be considered an heir pure and simple.

Therefore, in light of the above, the mere assumption of possession of the inherited assets by the person called to the inheritance, in any capacity, is not considered by itself a conclusive action that would result in tacit acceptance of the inheritance.

In fact, the mere taking possession of the inherited assets is not an unequivocal act, as it does not necessarily imply the intent of the person performing it to accept the inheritance and assume the status of an heir. The action could simply be aimed at the mere preservation of the inheritance. However, if the behavior of the heir continues for the time strictly necessary for the preservation of the inherited assets, what the case law calls "presumed acceptance of the inheritance" occurs. In this regard, the law imposes an obligation on the person called to the inheritance who is in possession of the inherited assets, which consists of drawing up an inventory within three months from the opening of the succession or from the notification of the devolved inheritance.

If this obligation is not fulfilled, it is presumed that the behavior is not aimed at the mere preservation of the inherited assets but is indicative of conclusive behavior that shows the unequivocal intent of the person called to the inheritance to assume the status of heir.

“The taking possession of inherited assets does not lead to tacit acceptance of the inheritance, since it does not necessarily imply the intent to accept. However, if the person called to the inheritance, in possession or joint possession of even a single inherited asset, does not prepare the inventory within three months from the beginning of the possession, they will be considered an heir pure and simple; this obligation not only conditions the ability to accept with the benefit of inventory but also the ability to effectively renounce the inheritance with regard to the creditors of the deceased.”
(Among many, see Cass. civ. Section VI, Order no. 15690 of July 23, 2020 Rv. 658781)

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