Renouncing an inheritance in Malta: debts and deadlines
In Malta an heir steps into the shoes of the deceased: possession of the estate passes to the heir by operation of law, subject to the obligation of discharging all the liabilities of the inheritance (article 836 of the Civil Code, Cap. 16). An heir who accepts purely and simply therefore answers for the deceased's debts with his or her own property as well. The law offers two ways out. No one is bound to accept an inheritance (article 846), so you may renounce it; or you may accept it under the benefit of inventory, which limits your liability to the value of what you inherit (articles 847 and 890).
Renunciation is never presumed. It must be made by a declaration filed in the registry of the court of voluntary jurisdiction or by an act of a notary public, and it takes effect against third parties only once registered in the Public Registry (article 860). Acceptance, by contrast, can be implied from conduct, and an heir who holds the estate's property for three months without an inventory loses the right to renounce altogether (article 869).
This guide explains how to decide between renouncing and accepting with inventory, how each is done, what happens to your share afterwards, and the mistakes that turn a reluctant heir into an unconditional one.
Key facts
Deadline
An heir in actual possession of property of the inheritance forfeits the right to renounce three months after the opening of the succession, or after learning of it, unless the inventory rules have been complied with (articles 869 and 881 of Cap. 16). Once the inventory is completed there are forty days to renounce or accept (article 883). Any interested person may ask the court to fix one month, extendable by another month, for the heir to declare; silence then counts as renunciation (article 868). The right to demand an inheritance lapses after ten years (article 845); minors and interdicted persons keep the benefit of inventory until one year after majority or the end of the interdiction (article 885).
What to do
Find out what the estate contains before you touch it. Ask a notary to search for wills in the Public Registry and the Notarial Archives, and to run searches against the deceased's name for hypothecs, privileges and transfers of immovables. Collect bank statements, loan and guarantee documents, tax and utility arrears, and any judicial letters or court acts served on the deceased. Debts secured on the home, personal guarantees for a company and pending lawsuits are the usual reasons for renouncing.
While you are investigating, limit yourself to what the Code treats as neutral: funeral arrangements and acts of mere preservation or provisional administration do not imply acceptance, provided you do not assume the status of heir (article 852(1)). Do not sign anything “as heir”, and do not withdraw, sell or share out assets.
Understand what counts as acceptance, because it cannot be undone. Acceptance is express if you assume the status of heir in a public deed or a private writing; it is implied if you perform an act which necessarily shows an intention to accept and which you could only perform as heir (article 850). Donating, selling or assigning your rights of succession implies acceptance, and so does a renunciation in favour of only some co-heirs, or a renunciation in favour of all of them for a price (article 853). A gratuitous renunciation in favour of all the co-heirs on whom your share would devolve anyway does not (article 854).
Once you have accepted, you can impeach the acceptance only if it resulted from violence or fraud (article 858(1)). Acceptance also operates retroactively from the day the succession opened (article 849).
Check whether the three-month clock is running against you. If you have the actual possession of property of the inheritance – you live in the deceased's house, hold the car, the jewellery or the contents – you must make up an inventory within three months from the opening of the succession or from the day you knew the inheritance had devolved on you (article 881). If you do not, you forfeit the right to renounce and are deemed a pure and unconditional heir, even if you claim to hold the property under another title (article 869).
An heir who is not in possession and has not intermeddled is under less pressure: the times start to run only from a day fixed by the court when a claim is brought, and if no claim is brought the inventory may be made for as long as the right to accept has not lapsed (article 884).
Choose between renunciation and the benefit of inventory. Renounce when the debts clearly exceed the assets, or when you want nothing to do with the estate. Use the benefit of inventory when the position is uncertain or there may be a surplus: you are then not liable for the debts beyond the value of the property you succeed to, your own property is not mixed with the estate, and you may free yourself by giving up the estate's property to the creditors and legatees (article 890). The testator cannot prohibit it (article 877).
For some heirs there is no choice. An inheritance devolving on a minor or on a person under tutorship or curatorship can be accepted by the parent, tutor or curator only under the benefit of inventory (article 848).
Make the renunciation in the form the law requires. It is made either by a declaration filed in the registry of the court of voluntary jurisdiction of the island where the deceased resided at the time of death – the Civil Court (Voluntary Jurisdiction Section) in Malta or the Court of Magistrates (Gozo) in its voluntary jurisdiction – or by a declaration in an act of a notary public (article 860(2)). A letter to the bank, to creditors or to the other heirs is not a renunciation.
If you are a child or the spouse of the deceased and the succession is testate, decide now whether to reserve the reserved portion: an heir who renounces a testate succession forfeits all rights to the intestate succession, but may make a reservation in respect of the reserved portion in the act of renunciation itself (article 861). Renouncing does not deprive you of a legacy left to you (article 862(2)).
Have the renunciation registered in the Public Registry. The declaration is not operative with regard to third parties until it is registered there by a note under article 330(2) of the Civil Code (article 860(3)). The schedule of fees in the Public Registry Act (Cap. 56) provides a fee for every declaration to renounce an inheritance; where a notary receives the act, the notary files the note. Until registration a creditor of the estate may still treat you as a potential heir.
Keep an authenticated copy of the declaration and proof of registration, and send copies to creditors who write to you. If a creditor sues before you have decided, remember that during the time for making the inventory and deliberating you are not bound to assume the status of heir, although you may be sued as curator de jure of the inheritance (article 886).
If you opt for the benefit of inventory, follow the procedure in the Code of Organization and Civil Procedure (Cap. 12). File a note in the court of voluntary jurisdiction declaring that you accept with the benefit of inventory, or that you will not accept before an inventory is made (article 541 of Cap. 12; article 878 of Cap. 16). You then swear before the registrar to describe the estate faithfully (article 542). The inventory must list movables, money, debts due to the deceased, rights of action, immovables and all liabilities, with an expert valuation of movables unless the court dispenses with it (article 543); it is published by a notary on a day fixed by the court, with the interested parties summoned (articles 544 to 546).
The declaration is ineffectual without the inventory (article 879 of Cap. 16), and the expenses of the inventory are borne by the inheritance (article 902).
Know what happens after you renounce. You are considered never to have been an heir (article 862(1)). On intestacy your share accrues to your co-heirs, and if you are the sole heir the succession devolves on the person next in degree; nobody takes as your representative, but if you are the sole heir in your degree, or all co-heirs renounce, your children take in their own right (articles 863 and 864). Your children may therefore need to renounce in turn, and for minors the parents must act within the rule in article 848. In a testate succession the share goes to the co-heirs or the heirs-at-law under the rules on accretion (article 865).
A renunciation is not always final: you may still accept as long as your right has not lapsed by prescription and no other heir has accepted, without prejudice to rights acquired by third parties (article 867).
What to watch out for
- Staying in possession for three months without an inventory. An heir holding property of the inheritance who neither renounces nor makes up the inventory in time is deemed a pure and unconditional heir and becomes liable for the debts with his or her own assets (articles 869 and 882).
- Taking or hiding assets. An heir who misappropriates or conceals property belonging to the inheritance forfeits the right to renounce and remains an unconditional heir despite any renunciation (article 870); fraudulently omitting property from the inventory forfeits the benefit of inventory (article 889).
- Renouncing “in favour of” one sibling. A renunciation in favour of one or some co-heirs, even gratuitous, implies acceptance (article 853(2)(a)). You become an heir, with the debts, and the transfer may be treated as a donation. Only a gratuitous renunciation benefiting all those to whom the share would devolve is neutral (article 854).
- Renouncing to defeat your own creditors. Creditors prejudiced by the renunciation may ask the court for authorisation to accept the inheritance in your place; the renunciation is annulled in their favour, to the extent of their claims (article 866).
- Forgetting the next in line. After your renunciation the inheritance, and its debts, may devolve on your children or more remote relatives (articles 863 and 864). If they are not warned, they can be caught by the same deadlines.
- Losing the reserved portion by oversight. Without an express reservation in the act of renunciation, a child or spouse who renounces a testate succession gives up the reserved portion as well (article 861).
Legal basis
Frequently asked questions
Do I inherit my parent's debts in Malta?
Only if you accept the inheritance without the benefit of inventory. The heir takes the estate subject to the obligation of discharging all its liabilities (article 836 of the Civil Code), so an unconditional heir can be pursued on his or her own property. If you renounce, you are treated as never having been an heir (article 862). If you accept under the benefit of inventory, you are not liable beyond the value of the property you inherit (article 890).
How do I renounce an inheritance?
By a declaration filed in the registry of the court of voluntary jurisdiction of the island where the deceased resided at death, or by a declaration made in an act of a notary public (article 860(2) of the Civil Code). The declaration must then be registered in the Public Registry to be effective against third parties (article 860(3)). Renunciation is never presumed: silence, a verbal statement or a letter to creditors is not enough.
Is there a deadline to renounce?
There is no single fixed deadline, but several traps. If you are in actual possession of estate property, you lose the right to renounce after three months unless you comply with the inventory rules (article 869). After an inventory is completed you have forty days (article 883). A creditor or other interested person may also have the court fix one month, extendable by one more, for you to declare; if you stay silent, the inheritance is deemed renounced (article 868).
What is acceptance with the benefit of inventory?
It is acceptance preceded or followed by a formal inventory of the estate drawn up under the Code of Organization and Civil Procedure. The heir declares it by a note in the court of voluntary jurisdiction (article 878 of the Civil Code; article 541 of Cap. 12). Its effect is that the heir is not liable for debts beyond the value of the estate, keeps his or her own property separate and may hand the estate over to the creditors and legatees (article 890).
Can I renounce the inheritance and keep a legacy or a gift?
Yes, within limits. Renunciation does not deprive you of the right to demand a legacy bequeathed to you (article 862(2) of the Civil Code). An heir who renounces may also retain a donation received from the deceased, or claim a legacy, to the extent of the disposable portion (article 916). If you later claim the reserved portion, what you received is imputed to it under article 620(4).
Who inherits if I renounce?
On intestacy your share accrues to your co-heirs; if you were the sole heir, the succession passes to the person next in degree. No one takes by representation of an heir who has renounced, but if you were the only heir in your degree, or all co-heirs renounce, your children succeed in their own right, per capita (articles 863 and 864). Under a will, the share passes to the co-heirs or heirs-at-law under the accretion rules (article 865).
Can a minor child renounce or accept an inheritance?
A parent, tutor or curator can accept an inheritance for a minor only under the benefit of inventory (article 848 of the Civil Code), so the child's own property is never exposed to the deceased's debts. A minor is not deemed to have forfeited the benefit of inventory until one year after reaching majority (article 885). Whether a renunciation on the child's behalf needs court authorisation should be confirmed with a notary or the court registry before filing.
Can I change my mind after renouncing?
Sometimes. An heir who has renounced may still accept, provided the right of acceptance has not lapsed by prescription and the inheritance has not already been accepted by other heirs (article 867(1) of the Civil Code). The late acceptance cannot prejudice rights acquired in the meantime by third parties, for instance through acts validly made with the curator of the vacant inheritance (article 867(2)). The reverse is much harder: acceptance can be impeached only for violence or fraud (article 858).
I paid for the funeral. Have I accepted the inheritance?
No. Arrangements made for the funeral and acts of mere preservation or provisional administration do not imply acceptance unless you have also assumed the status of heir (article 852(1) of the Civil Code). If you renounce within the time allowed, lawful expenses you incurred up to the renunciation are at the charge of the inheritance (article 888). Selling the deceased's property, by contrast, generally requires leave of the court if it is not to count against you (article 887).
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