Inheritance from grandparents, in Brazil, is directed straight to the grandchildren in the case where the heirs’ father died before the succession — also known by the term: predeceased father.
In cases such as this, the assets inherited by representation do not come to form part of the estate of the deceased father. Accordingly, these assets cannot be used to settle debts left by the father.
This understanding was established by the courts in granting a special appeal and ruling extinguished a monitory action which, in the absence of assets left by the deceased father, sought to satisfy the debt incurred by him with the inheritance received by his children directly from the grandmother.
The rapporteur of the heirs’ special appeal, Justice Marco Aurélio Bellizze, explains: “This estate inherited by representation never formed part of the debtor’s estate, such that what is sought is to attribute to the children of the predeceased and defaulting debtor the patrimonial liability for his debts, which is absolutely unfeasible under Brazilian law.”
According to the Justice, inheritance by representation has the purpose of repairing the harm suffered by children by reason of the death of their parents, enabling the legal summoning of grandchildren, in the descending line, or of nephews and nieces, in the collateral line, to participate in the inheritance of the grandparents or of the uncles and aunts.
“The estate inherited by representation, however, does not vest in the name of the predeceased heir, as the literal wording of the name of the institute might suggest. On the contrary, the heir by representation, although subject to a proportion of participation in the hereditary estate different from others, participates in the probate in his own name and, as already emphasized, by express legal summoning,” he explained.
For this reason, Justice Bellizze concluded that it would not be possible for the creditor to seek payment of the debt by reaching the estate transmitted directly to the deceased’s children, on pain of violation of Article 1,792 of the Civil Code.
“This is because the patrimonial liability of the heirs is legally limited to the extent of the debtor’s inheritance and, in the specific case, it is undisputed that the father left no assets to be inventoried,” the Justice concluded in extinguishing the monitory action.
Read the ruling.
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Source: STJ
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