Vacíos legales en la partición de bienes hereditarios en la sucesión intestada.

Abstract

Pursuant to the legal rules in force, there are different ways of acquiring ownershipof real and personal property. These modes can be through public, private, onerous, gratuitous, unilateral, bilateral contracts, among other classifications. However, in the present work, a particular way of acquiring ownership is analyzed: the adjudication. Specifically, it examines the adjudication that takes place from the partition of the assets coming from the hereditary succession. The hereditary succession, according to Navarro (2022), is an act or set of legal acts that begins with the death of a person and gives rise to the birth of the right to inheritance. Previously, succession is the fact by which a person replaces another person in his rights, assets and obligations. The heirs designated to receive the inheritance are, inthe first place, the children. In their absence, the ascendants (parents, grandparents, great-grandparents) together with the surviving spouse (if any) are called to inherit. If there areno descendants or ascendants, the siblings of the deceased will inherit. And if there are nosiblings, the nephews and nieces of the deceased will inherit together with the State, to theextent or percentage established by law. If there are none of the above, the State will be the heir, limiting the right to inherit up to the fourth degree of consanguinity. Once the succession has been opened and the inventory of assets and heirs has been established, the heirs proceed to the acceptance of the inheritance. This acceptance can be express or tacit, and the heirs can only accept the totality of the inheritance, including assets and liabilities. Subsequently, an inventory of the assets is made with the help of a qualified expert, which will be approved by the judge. The purpose of this inventory is to value the assets so that the heirs are not liable for debts exceeding the totalvalue of the inventory. Finally, the last step in the hereditary succession is the partition of the hereditary assets. This partition can be done judicially, after approval of the inventory, or extrajudicially, carried out before a Notary Public. In both cases, it is necessary to have the presence and acceptance of all the heirs who have the free administration anddisposition of the inherited assets. However, this process, although well organized from the legal point of view, presents legal gaps or loopholes that have been identified in this degree work. The analysis, explanation and corroboration of these legal deficiencies allow us to suggest possible solutions for their eradication. One of the main legal loopholes identified refers to the extrajudicial partition ofXIII inherited assets. In this case, the Notary Publics, as the legal representatives, do not have the necessary tools to verify the information presented by the heirs requesting the partition and adjudication of the assets belonging to the estate. The present degree work analyzes the process of adjudication of inherited assets, focusing on the partition of the same. Although this process is regulated in our Ecuadorian legislation, the author of this work has identified legal gaps that require attention from the academy. It is essential to address these deficiencies in order to ensure a more efficient and secure process of partition and adjudication of inheritance assets.