It is a well-known fact that settling an estate takes time, partially due to the necessity to carry out the administrative and legal formalities and the division of assets.
In some cases, the heirs and/or legatees of the deceased do not agree with each other and can't reach an agreement, either on the composition of the estate or on its division.
The disagreement then inevitably becomes a cause of blockage of the estate, which can prevent any progress from being made for months or even years, if there is litigation.
It is also possible to face a deadlock when the estate is particularly complex and requires financial expertise to reconstitute the assets, as is often the case in an international context.
Thus, heirs and/or legatees cannot claim their share of the deceased's estate, let alone enjoy it, for an undetermined period.
Is there a solution?
Fortunately, the situation is not inextricable: heirs do not have to wait for the division of the estate to start benefiting from a part of their inheritance and/or legacy.
They can obtain an advance on their inheritance share.
What are the conditions to apply for an advance on the inheritance?
The advance on the inheritance is allowed under Monegasque case law which requires several conditions to be met to implement it.
The essential existence of joint ownership of the estate
An application for an advance on the inheritance is only possible when the heirs hold the inheritance assets in joint ownership.
It means the heirs indistinctly own the assets, and their share is not materially individualized.
The advance must not exceed the foreseeable rights of the claimants
Since the goal is to provide heirs with a provision based on their rights in the estate before its settlement, the advance they request must not exceed their foreseeable rights.
Hence, for the application to be admissible, the amount requested by way of the advance cannot exceed what the heirs are likely to obtain in the context of the division of the estate.
The presence of cash in the undivided estate
Furthermore, even if the claim does not exceed the foreseeable rights of the claimant heir, for such a claim to have any chance of success, the undivided estate must have available funds.
Indeed, to make the advance, no asset should be divided. Thus, the said advance can only be in cash.
Therefore, to obtain an advance on their share, the heirs must ensure that part of the estate's assets is cash flow and not only real estate or securities portfolios.
How can an heir or a legatee claim an advance of their inheritance share?
The request for an advance on the inheritance can happen in amicable terms, provided that all the heirs and/or legatees agree on the principle of the advance and on the amount requested by those who initiated it.
If the amicable route is not conclusive, the judicial proceedings are open to the heir or the legatee, who can address this claim in the context of the liquidation and division of the estate proceedings.
Even though they cannot speed up the settlement of an estate that is dragging on, the heirs and/or legatees may apply for an advance on their inheritance share, which enables them to move forward and start benefiting from their share.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
