Effective possession in Ecuadorian legislation and guarantees for heirs

Abstract

Introduction. The process of effective possession in Ecuador, crucial for the transfer of assets to heirs, exhibits deficiencies that impact equity and justice in the administration of successions. The lack of transparency, inaccuracies in property descriptions, and the complexity of identifying heirs have exposed issues in current practice. Objective. To analyze the effectiveness of the application of effective possession in Ecuadorian legislation, focusing on the guarantees available to heirs and evaluating whether these are adequate in practice. This is broken down into the identification of relevant legal provisions and the assessment of their application by notaries and competent authorities. Methodology. A case analysis was conducted where the rights of heirs have been violated, using a review of the current legislation, including the Constitution of the Republic, the Civil Code, the Notarial Law, and the Regulation of the Integral Notarial System of the Judiciary. Current practices were examined to identify deficiencies and areas for improvement. Results. The study revealed problems in the management of effective possession, such as a lack of transparency in transactions, inaccuracies in property descriptions, complexity in determining heirs, and the absence of uniform standards in notarial procedures. These deficiencies negatively impact equity and justice in the succession system. Conclusion. A reform is necessary to address the identified deficiencies. It is proposed to amend the Notarial Law by creating a supplementary article. This article will establish specific notarial requirements and procedures for the preparation of the act of effective possession as part of succession management and the verification of their rights. Additionally, it will introduce criteria for the creation of a centralized registry of heirs, an automatic update system for the cadastral registry, and methods to ensure the verification of the legitimacy of inheritance claims. These reforms aim to enhance transparency, equity, and legal certainty in the Ecuadorian’s succession system. The implementation of these measures could improve transparency and fairness in the protection of their rights, consolidating a more just and effective succession system in Ecuador. General area of study: Civil Law and Succession Procedures. Specific area of study: Protection of Heirs' Rights in the Process of Effective Possession in Ecuador. Type of study: Original articles.