LAS DEUDAS DE UNA HERENCIA CONCURSADA Y SU PROYECCIÓN EN LA PRÁCTICA JUDICIAL.

Abstract

We have become so accustomed to seeing individuals or legal persons declared bankrupt that we find it startling indeed that a set of property or assets might be the «subject» of bankruptcy proceedings. The Bankruptcy Act of 9 July 2003 refers to this very peculiar situation quite early, in article one on the «subjective prerequisite,» the second paragraph of which states, «An estate may be declared bankrupt if not accepted unconditionally». This rule stems from the dominant opinion in Spanish civil law, which is that unconditional acceptance immediately causes the assets and liabilities of the estate to combine with those of the accepting heir, whereupon the heir takes on unlimited liability. The heir, therefore, becomes the subject of bankruptcy, not the estate itself. This paper takes a critical look at the consequences of this, the majority opinion on bankruptcy. It also analyzes how other issues related with an estate in bankruptcy impact bankruptcy proceedings, such as legal standing to apply for estate bankruptcy and the effects an estate bankruptcy application has on the powers of the heirs or estate administrators to handle the assets and liabilities of the estate.