The judicial estate inventory process is a special legal procedure involving the listing of assets following a person’s death and the subsequent opening of their estate or following the divorce of a couple when there is no agreement on the division of joint assets.
Thus, this procedure can serve several purposes:
a) To terminate the joint ownership of the estate and proceed with the division of assets;
b) To list the assets that make up the estate and serve as a basis for any potential liquidation, where a division of assets is not necessary;
c) To divide assets following a declaration of absence (when a person disappears and it is unknown whether they are alive or dead, and there is no news of them for a certain period, it is possible to declare their absence judicially, and under certain conditions, even declare their presumed death);
d) To divide the joint assets of a dissolved marriage.
Let us consider the following example: A, a widower, passes away and leaves as heirs his three children, B, C and D, the latter being single and already living in the deceased father’s house (the “deceased’s estate”). Although most of the items in the house already belonged to the couple formed by the parents of B, C and D, no division had been made when the mother died, and the assets remained in the family home.
It so happens that D, who continued living in the property, refused to allow the other siblings access to the assets belonging to the house, which should have been divided among the three of them, even going as far as changing the locks.
In cases like this, or similar ones, it is not only necessary to initiate an inventory process to list and assign a monetary value to each asset to be divided, but it is also advisable to request seizure proceedings in relation to those assets.
Seizure proceedings make sense when there is a “well-founded fear of loss, concealment or dissipation of assets, whether movable or immovable, or of documents,” as would be the case for B and C regarding D. It is a precautionary measure that depends on a main action, in this case, the estate inventory process.
In this specific case, the purpose of seizure proceedings is to identify the assets over which the applicant claims rights, while also ensuring their preservation. The assets remain “held” until they are allocated in the main action — in this case, the division of the estate.
When the main action is an inventory process, seizure proceedings can continue to be useful until the effective division takes place, as it is only then that the rights of each interested party to the assets are formally determined.
The existence of an inventory that lists and values the assets does not eliminate the relevance of seizure proceedings. Such proceedings remain justified whenever there is an ongoing risk of loss, concealment or dissipation of assets, and judicial protection is necessary to ensure their preservation until the division is completed and each heir’s rights are established.
Thus, seizure proceedings, as a special precautionary measure, prove to be essential in situations where one heir prevents the others from accessing the estate assets, acting as if those assets belong solely to them. In such cases, there is a risk that the assets may deteriorate, be concealed or even disappear before the division takes place. Seizure proceedings therefore become indispensable to protect the inheritance rights of all heirs, ensuring the preservation of the estate until its full and final division.
In cases of preliminary or incidental seizure proceedings in judicial separation or divorce actions, the law does not require the allegation or proof of a well-founded fear of loss, concealment or dissipation of assets. This requirement is therefore waived to allow the measure to be granted. This waiver is based on the idea that, given the inherently contentious nature of such actions, it is reasonable to presume the risk of less transparent conduct regarding the assets, which could exacerbate disputes between the parties.
At Belzuz Abogados, S.L.P. Law Firm you can rely on legal advice from experienced lawyers to ensure that the law is respected and that all parties’ rights are fully protected.