Disposition of proprery in case of death
Do you want to leave all your property or part of them to a specific person or a specific heir in the event of your death? Do you want to exclude the second or all other heirs? Wondering what the best option for you is?
To decide which legal act meets your needs the best, you first need to know that there are a number of legal options that can regulate property relations in the event of death.
The best known legal act is a will. A will is a one-sided legal act in which you dispose of your own property in the event of death. A will can be made by any mentally capable person aged 16 or older. The legal effects of the disposition made by the will are postponed until the moment of death. What is important to emphasize is that the disposition of property by virtue of the will is subject to the restrictions imposed by the Inheritance Act. The Inheritance Act protects legal heirs and allows them to claim the reserved portion if they believe that the testamentary disposition violated the part that belongs to them by law.
As for the form of wills, the Inheritance Act provides for several valid forms of wills and divides them into private: handwritten (one written and signed by the testator, and it is useful to indicate the place and date of making it) or a written will with the presence of witnesses (regardless of who drafted the document, the testator declares that it is their will in the presence of two witnesses at the same time, signs it in front of them and has the witnesses sign it), and public (compiled by an authorized person at the request of the testator). The Inheritance Act also recognizes the concept of will in extraordinary circumstances due to which the testator is not able to make a will in any other valid form. Such a will may be made in the presence of two witnesses at the same time and shall cease to be valid 30 days after the cessation of the extraordinary circumstances in which it was made.
However, in practice there are also cases where a foreign will is used in probate proceedings before a domestic court. For a foreign will to be used in domestic proceedings, it must meet certain preconditions provided by the Private International Law Act, i.e. the so-called EU Inheritance Regulation (No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession) and the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions of 5 October 1961, all depending on the country of origin, for which it is best to consult a law firm.
Lifetime maintenance contract and contract for support until death
Although these contracts seem similar and do not reveal the differences between them at first glance, it is important to know how they differ, given that the legal consequences of these contracts are completely different. In the case of a lifetime maintenance contract, one party (the maintenance provider) undertakes to support the other party (the maintenance recipient) until their death, and the other party declares that they give the first party all or part of their property, with the acquisition of property and rights delayed until the death of the maintenance recipient.
On the other hand, a contract for support until death is a contract in which one party (the support provider) undertakes to support the other party (the support recipient) until their death, and the other party undertakes to transfer all or part of their property during their lifetime. Thus, the support provider acquires the property or rights that are the subject of the contract, during the lifetime of the support recipient, i.e. after that property or rights are transferred in the manner prescribed by law.
These two contracts are regulated by the Civil Obligations Act, which stipulates that they must be drawn up in writing and certified by a court, or executed as a notarial deed by a notary public or drawn up in the form of a notary act.
The existence of these contracts is also important for the probate procedure because it significantly affects the estate of the deceased and limits the rights of heirs with regard to the property included in these contracts. Contact us for more information on the impact of these contracts and the possibilities of terminating them.
Deed of gift with the establishment of the right of usufruct
A person can dispose of their property during their lifetime with a deed of gift, thus transferring the ownership of that property or right to another. In doing so, it is possible to stipulate a lifelong right of usufruct on the gifted property. For example, one can reserve the right to reside in and use the real estate gifted to another by virtue of a deed of gift. Such deed of gift should be concluded in writing and executed as a notarial deed by a notary public. The established right of usufruct is entered in the land registry as an encumbrance of the real estate.
The contract on the assignment and distribution of property is a less-known legal act and, the same as the will, it is provided for by the Inheritance Act. This contract allows the ancestor to distribute part or all their property to their children and other descendants. Such a contract is valid only if all the children and other descendants of the assignor who are legally called to inherit have agreed to it. The assignor may include their spouse in the assignment and distribution, and then it is necessary for the spouse to agree to it. This contract must be drawn up in writing and certified by a court, executed as a notarial deed by a notary public, or concluded in the form of a notary act.
To decide whether a contract of assignment and distribution is a better option for you than, for example, a will or a deed of gift, you should consult a lawyer for each individual case. Only with a full insight into the situation of the party and their wishes is it possible to determine which legal act would be most suitable.
Therefore, if you want to dispose of your property and you are not sure which way would be the most appropriate for your situation and wishes, contact us with confidence for legal advice.