Libro Tercero Título III. De la sucesión intestada

Intestate succession takes place:

1°.When there is no will;

2°.When the condition imposed on the institution of heir fails or the instituted heir dies before the testator, or is incapable of inheriting, or repudiated the inheritance; except in the cases of substitution, representation and accretion in accordance with this Code;

3°.When in the will there is no instituted heir and the testator has not disposed of all his property in legacies; and,

4°.When the testator has failed to dispose of any one or some of his property.

In the cases of subsections 3 and 4 of the preceding article, intestate succession proceeds only with respect to the property of which the testator did not dispose.

To regulate intestate succession, the law only considers kinship ties; not the sex of persons, nor the nature nor the origin of the property.

In intestate succession, inheritance is in one's own right and by right of representation.

Those who succeed in their own right inherit per capita, that is, each takes in equal shares the portion that the law assigns to him.

Those who succeed by right of representation inherit per stirpes, as expressed in Article 932.

The relatives of the deceased and, in the absence thereof, the State and the universities of Guatemala, in equal parts, are called to intestate succession, according to the rules determined hereinafter.

The nearest relative in degree excludes the more remote, except for the right of representation in cases where it must take place.

In the case of the succession being partly intestate and partly testamentary, liquidation shall first be carried out in order to pay the liabilities of the inheritance, and the intestate property and the testamentary property shall thereafter be partitioned separately, always respecting the will of the testator.

Biological or adoptive children inherit from their parents in equal shares, but do not retain succession rights with respect to their former family.

If there are several relatives of the same degree and one or more of them renounces or is unable to inherit, their share shall accrue to the others of the same degree, saving the right of representation.

The law calls to intestate succession, in the first place, the children, including adopted children, and the surviving spouse who has no right to community property gains; who shall inherit in equal shares.

Nevertheless, the surviving spouse whose right to community property gains is less than the hereditary share that would correspond to such spouse in the absence of community property gains shall have the right to have an amount equivalent to said share completed, the difference being deducted from the hereditary estate.

In the absence of descendants, the nearest ascendants and the spouse shall succeed in equal shares, and when there is only one of those parties, it shall take the entire inheritance.

In the absence of those called to succeed, pursuant to the preceding article, collateral relatives up to the fourth degree shall succeed.

The provisions of the preceding articles shall be understood without prejudice to the rights of representation and maintenance.

The separated spouse shall have no part whatsoever in the intestate inheritance of his or her wife or husband, if by judgment he or she has been declared guilty of the separation.

The divorced spouse shall have no share in the intestate inheritance of his or her former spouse.

The succession of persons whose de facto union has been legalized is governed by the preceding provisions.

The surviving man or woman occupies the first place, together with the children.

The inventory and the administration account having been approved, the executor must immediately make the partition of the inheritance.

A partition may be suspended only by virtue of express agreement of the interested parties and for a term not exceeding three years.

No co-heir may be compelled to remain in undivided ownership of the hereditary property, not even by express order of the testator.

Any co-heir who has free disposition of his property may request, at any time, the partition of the inheritance.

For incapacitated persons and absentees, partition must be requested by their lawful representatives.

Heirs under condition may not request partition until such condition is fulfilled.

The co-heirs of the conditional heir may request the partition by adequately securing the right of the latter in the event the condition is fulfilled; and until it is established that it has failed or can no longer be fulfilled, the partition shall be deemed provisional.

The partition shall be considered provisional in the case of the preceding article, only as to the part in which the claimant's right consists, and as to the bonds with which it has been secured.

The legatee of an aliquot part of the inheritance may request partition; the legatee of genus or quantity may request delivery of the legacy.

The creditor of an heir or of a legatee of an aliquot share who has attached the right that they have to the inheritance and who has obtained a judgment of sale may request partition, provided that payment cannot be made with other property.

The assignees, whether of the heir or of the legatee of an aliquot part, may also request it.

If before the partition is made one of the heirs dies, leaving two or more heirs, the latter shall proceed jointly and under the same representation, it being sufficient for one of them to request the partition.

Regarding the partition of the property of an absentee, once the presumed death has been declared, the procedure shall be in accordance with the provisions of this chapter.

The owner of the property may make the partition thereof by inter vivos act, provided that the rights of persons who must be supported are respected and secured.

When the partition of property is made, the heirs must secure, for the benefit of those entitled to maintenance, the portions or shares to which they are entitled; and without that requirement the partition shall not be registered. In such case, the registrars shall make, on its own initiative, an annotation on the property of the inheritance, which shall be cancelled when the maintenance and the pensions owed are secured.

If any of the heirs is absent and has no legitimate representative, the judge, at the request of any capable person or of the Public Prosecutor's Office, shall proceed to appoint a representative for him in the terms established in the provisions on absence.

When there are absent persons, minors or incapacitated persons, the partition must be judicially approved.

Undivided co-ownership of property shall be governed by the rules of the community of property, if the interested parties have not agreed on the rules for administering and governing it.

When the heirs are of legal age and there are no absent or incapacitated persons, they may divide the property as they see fit, without judicial intervention.

The heirs must reciprocally reimburse each other for the rents and fruits that each one has received from the hereditary property, the useful and necessary expenses, and the damage caused by malice or negligence.

Debts contracted during the undivided co-ownership shall be paid preferentially.

The debts of a person shall be paid from the property left by such person upon death. The remainder is the hereditary estate to be distributed among those entitled thereto.

The expenses of the last illness, funerals and mourning shall be deducted from the hereditary estate.

The expenses of the partition shall be deducted from the common fund; those incurred for the particular interest of any heir or legatee shall be charged to their share.

A partition legally made confers on the coheirs exclusive ownership of the property adjudicated to them.

The co-heirs are reciprocally obligated to indemnify each other in case of eviction of the distributed property.

The warranty obligation shall cease only in the following cases:

1.When, in making the partition among adult heirs, it was expressly agreed; and

2.When the eviction arises from a cause subsequent to the partition or was caused by the fault of the person suffering it.

Whoever suffers eviction shall be indemnified by the co-heirs, in proportion to their hereditary shares.

The share that must be paid to the person who loses his part in whole or in part by eviction shall not be that which represents his original holding, but that which corresponds, with the deduction made from the total of the inheritance.

If any of the co-heirs who must indemnify is insolvent, the share with which he was to contribute shall be divided among the others, including the one who lost his share through eviction.

Those who pay for the insolvent shall retain their action against him, for when his fortune improves.

If a credit is adjudicated as collectible, the co-heirs are not liable for the subsequent insolvency of the debtor; and they are only liable for the debtor's insolvency at the time the partition is made.

For uncollectible credits adjudicated as such, there is no liability.

The heir whose hereditary property is attached, or against whom a final judgment is rendered by reason thereof, has the right to request that his co-heirs post security for the liability that may result to them; and otherwise, that they be prohibited from alienating the property they received.

Partitions made extrajudicially may only be rescinded in the cases in which contracts in general may be rescinded.

Partitions made judicially may not be rescinded except in cases of warranty or other legal cause, in accordance with the preceding chapter, which deals with the effects of partition.

The partition shall be voidable if it was made with preterition of any person who held title to inherit at the time of opening the succession; but only where fraud or bad faith on the part of their co-heirs has intervened.

If no fraud or bad faith has intervened, or if title to the intestate inheritance is acquired after the partition, the partition shall not be rescinded, but the pretermitted heir shall have the right to the share of the value of the property that would have corresponded to him, its value to be determined by expert appraisal.

The partition made with a false heir is void insofar as it relates to him, and insofar as his participation prejudices other interested parties.

If, once the partition has been made, any property omitted therein should appear, a supplementary division shall be made, in which the preceding provisions shall be observed.