Taxation of capital gains from real estate sales in an unaccepted estate

The management of a deceased person's assets before the heirs formally accept the inheritance raises doubts about who should bear the tax burden of the operations carried out. The Dirección General de Tributos (DGT) has recently clarified the treatment of capital gains derived from the sale of real estate when the estate is still in a state of unaccepted inheritance (herencia yacente).

What the DGT has resolved

The inquiry focused on determining the taxation of the capital gain generated by the sale of real estate carried out by the executor while the estate remains unaccepted. The criteria establish that capital gains from the transfer of real estate in an estate are assigned according to ownership during each period.

Specifically, gains exigible from the date of death until the moment of acceptance of the inheritance are attributed to the members of the unaccepted estate. This attribution is carried out through the income attribution regime, where the gain is assigned to the legatees in proportion to their share of participation in the unaccepted estate.

What this means for you

If you are an heir or a legatee, this criterion implies that the tax responsibility for a sale carried out by the executor does not fall solely on the estate as an abstract entity, but is transferred directly to the beneficiaries.

The key lies in the participation. The capital gain produced in this time interval will be distributed among the legatees according to their percentage of participation in the inheritance. This directly affects the calculation of the Personal Income Tax (IRPF) for each of the parties involved, based on the regulations of Law 35/2006 and the General Tax Law (Ley General Tributaria).

What should be done

In the event of the sale of assets from an inheritance that has not yet been accepted, it is necessary to precisely identify the share of participation of each legatee. The correct determination of these shares is fundamental for the application of the income attribution regime and to avoid discrepancies with the Tax Administration in the IRPF declaration. It is recommended to assess the legal status of the inheritance and the exact moment of the transfer of assets to ensure compliance with current regulations.