INCIDENCIA DE LA POSESIÓN EFECTIVA EN LA SEGURIDAD JURÍDICA DE LA TRANSMISIÓN HEREDITARIA EN ECUADOR

Abstract

Inheritance transmission begins upon the death of the deceased, as established by the Código Civil. This event gives rise to subsequent procedures required to produce documents, registrations, and legal actions concerning estate assets. Within the documentary succession process, effective possession records the heirship claimed by the appearing parties, provides public notice, and facilitates later formalities. By itself, however, effective possession does not materially confer heirship upon any person. A legal problem arises because the notarial proceeding relies on a sworn declaration, uses the formula “sin perjuicio de terceros,” and lacks prior notification from the Registro Civil concerning other persons potentially entitled to inherit. Within this context, the general purpose of this research is to study, analyze, and explain the impact on legal certainty arising from prior review within effective possession proceedings for inheritance transmission in Ecuador. A qualitative, analytical, comparative-law, and using doctrinal legal methodology will be applied to examine jurisprudence, the legal framework, and also applicable provisions. This research will show that granting notaries authority in order to authenticate declarations under Article 18 of the Ley Notarial and the good faith principle, without requiring official data exchange, may infringe Article 82 of the Constitución de la República del Ecuador. Finally, alternatives are proposed in order to verify the universality of heirs through prior Registro Civil certification or direct institutional connectivity before the notarial act is formally issued and registered.