Everything You Need to Know About Inheritance
Guide on Inheritance Procedure in the Republic of Serbia
There are two ways of inheritance in Serbian law – inheritance on the basis of law and on the basis of a will. In this text, we will explain in detail both bases of inheritance, pobate procedure, and at the same time we will refer to the agreements that exist in inheritance law.
- I) Legal inheritance
This type of inheritance is regulated by the provisions of the Law on Inheritance (“Official Gazette of the RS”, No. 46/95, 101/2003 and 6/2015, hereinafter: the “Law”), while the inheritance procedure itself is regulated by the provisions of the Law on Extra-Judicial Procedure (“Official Gazette of the SRS”, No. 25/82 and 48/88 and “Official Gazette of the RS”, No. 46/95 – other law, 18/2005 – other law, 85/2012, 45 / 2013 – other law, 55/2014, 6/2015 and 106/2015 – other law).
Who is the deceased and who are the legal heirs?
A deceased (de cuius) is a person who has passed away and whose property acquired during his life at the time of his death becomes his/her legacy. The latter represents the subject of inheritance.
The deceased is inherited by: his descendants, his adoptees and their descendants, his spouse, his parents, his adoptive parents, his siblings and their descendants, his grandparents and their descendants and his other ancestors. It is inherited by hereditary orders, so that the heirs of the closer hereditary order exclude the heirs of the further hereditary order from the inheritance, while the Republic of Serbia is the last legal heir.
- The first hereditary order
The first line of inheritance consists of the deceased’ s descendants and his spouse. The deceased’ s children and spouse inherit in equal parts. However, when there is a deceased’ s child to whom the deceased’ s spouse is not a parent, and the spouse’ s property is greater than the part which would belong to him/her when the inheritance would be divided into equal parts, then each deceased’ s child can inherit up to twice as much as the spouse. This situation is possible if the court, after considering all the circumstances, assesses that the same is justified.
If the deceased’ s child cannot or will not inherit, his share is inherited in equal parts by his children (grandchildren of the deceased), and when one of the deceased’ s grandchildren cannot or will not inherit, his part is inherited in equal parts by his children (grandchildren of the deceased) and so on, as long as there are descendants of the deceased.
When the deceased has no offspring, the spouse does not inherit in the first hereditary line, but in the second hereditary line.
- The second hereditary order
The second hereditary order consists of the deceased’ s spouse and the deceased’ s parents and their offspring. The deceased’ s spouse inherits half of the inheritance, and the other half is inherited in equal parts by the deceased’ s parents.
If the deceased’ s spouse cannot or will not inherit, the deceased’ s parents inherit the whole inheritance in equal parts.
If the deceased’ s parent cannot or will not inherit, his share is inherited in equal parts by his children (brothers and sisters of the deceased), his grandchildren and great-grandchildren and his further descendants, according to the same rules that apply when the deceased is inherited by his descendants. If the deceased’ s parent has no offspring and cannot or will not inherit, his share is inherited by the other deceased’ s parent, and if he/she cannot or will not inherit as well, his/her descendants inherit everything that would belong to the parents.
If the deceased’ s parents have no offspring, and they cannot or will not inherit, the spouse inherits the entire inheritance.
- The third hereditary order
The third line of inheritance consists of the deceased’ s grandparents and their descendants. The deceased’ s paternal grandparents (father line) inherit half of the inheritance in equal parts, and the other half is inherited by the maternal grandparents (mother line), also in equal parts.
If any of these ancestors cannot or will not inherit, his part is inherited by his children, his grandchildren and his further descendants. If the grandparents of the same lineage do not have offspring and cannot or will not inherit, their part is inherited by the grandparents of the other lineage, their children and grandchildren and their further descendants.
- The fourth hereditary order
The fourth line of inheritance consists of the deceased’ s great-grandparents. The deceased’ s great-grandparents inherit half of the inheritance on the father’ s side, and the other half is inherited in equal parts by the deceased’ s great-grandparents on the mother’ s side.
If one of these ancestors cannot or will not inherit, his share is inherited by his/her spouse, if he/she is the ancestor of the deceased. If a pair of ancestors of the same lineage cannot or will not inherit, their share is inherited by another pair of ancestors of the same lineage. If the great-grandparents of one lineage cannot or will not inherit, their part is inherited by the great-grandparents of the other lineage.
- Other hereditary orders
After the deceased’ s great-grandparents, the inheritance is inherited by his/her further ancestors, according to the rules under which his great-grandparents inherit.
- The Republic of Serbia as the legal successor
If the deceased has no other legal heirs, the Republic of Serbia inherits the deceased. The Republic of Serbia cannot renounce the inheritance. The legacy that the Republic of Serbia inherits becomes state property.
- II) Inheritance status of the deceased’s spouse in certain cases:
- a) When does the spouse lose the right of legal inheritance:
The spouse loses the right of legal inheritance:
1) if the deceased had filed a lawsuit for divorce and after his/her death it is determined that the lawsuit was well-founded;
2) if his marriage with the deceased was annulled after the deceased’ s death, and for reasons that were known to the spouse at the time of the marriage;
3) if the spouse’ s community of life with the deceased was permanently terminated by his/her fault or in agreement with the deceased.
- b) Increase of the hereditary part of the spouse in the second hereditary order
When the deceased’ s spouse is invited to inherit with the heirs of the second hereditary order, and the spouse has no necessary means of subsistence, the spouse may, within one year of the deceased’ s death, demand lifelong enjoyment (fruitful use) of all or part of the inheritance which other heirs have inherited. If the value of the inheritance is so small that its division would lead to scarcity, the spouse may claim the entire inheritance to become his/her property. The spouse and other heirs can always change the lifelong enjoyment into a life annuity by agreement, and if the circumstances due to which the spouse received a lifelong enjoyment or annuity change, the court may cancel the lifelong enjoyment or annuity, if other heirs request it.
- c) Reduction of the hereditary part of the spouse in the second hereditary order
When the spouse is invited to inherit with the heirs of the second hereditary order, and more than half of the deceased’ s inheritance consists of his/her separate property, the other heirs may, within one year of the deceased’ s death, request a reduction of the spouse’ s hereditary part to a quarter of the inheritance, if the community of life between the deceased and his/her spouse did not last long.
III) Inheritance status of the deceased’ s parents in certain cases
- a) Increasing the hereditary part of the parents
Just like the deceased’ s spouse, when the deceased’ s parents are invited to inherit with the deceased’ s spouse and do not have the necessary means of subsistence, the deceased’ s parents may, within one year of the deceased’ s death, demand lifelong enjoyment of all or part of the inheritance, and if the value of the inheritance is so small that by dividing it the parents would fall into scarcity, the deceased’ s parents may claim the entire inheritance to become their property.
- IV) Can the heritage be inherited against the will of the deceased – the notion of necessary heirs
Necessary heirs are the deceased’ s: descendants, adoptees and their descendants, spouse, parents, adoptive parent, siblings, grandparents and other ancestors. An adoptive parent from incomplete adoption, the deceased’ s siblings, his grandparents and his other ancestors are necessary heirs only if they are permanently incapable of earning for a living and do not have the necessary means of subsistence. The necessary heir can only be the heir who is invited to inherit according to the legal order of inheritance.
Necessary heirs have a part of the inheritance which the deceased could not dispose of and which is called a necessary part.
The necessary part of the descendants, the adoptee and his descendants and the deceased’s spouse is half, and the necessary part of the other necessary heirs is one third of the share that would belong to each of them according to the legal order of inheritance. If the necessary heir cannot or will not inherit, his necessary part does not add to the other necessary heirs.
The necessary heir is settled after the deceased’ s creditors and before the delivery recipients (legatees). The necessary heir is not liable for the debts of the deceased up to the value of the necessary part.
The necessary part is violated if the value of the deceased’ s testamentary dispositions and presents made to the necessary heir or to the person which is coming to the inheritance instead of the necessary heir is less than the value of the heir’ s necessary part. The necessary part can be expressed in monetary value, which is the rule, but at the request of the necessary heir, the court may decide that the necessary part shall be a certain part of the things and rights that make up the inheritance. This applies only if the deceased does not determine the nature of the necessary part in the will. All testamentary heirs and delivery recipients jointly and severally owe monetary equivalent of the necessary part to the necessary heir, in proportion to the part of the inheritance each of them received, unless otherwise follows from the will. When that is insufficient, the necessary heir may request a supplement of the monetary equivalent, in accordance with the rules for returning gifts. When the necessary part is injured, testamentary dispositions are reduced, and gifts are returned if it is necessary to settle the necessary part. If the necessary part is violated by the will, the payment of the monetary equivalent of the necessary part may be requested within three years from the day of the proclamation of the will. If the necessary part is injured by gifts as well, a supplement of the monetary equivalent may be requested within three years from the death of the deceased.
However, there is an exception from the necessity of the necessary heirs’ inheriting regardless of the will of the deceased, which occurs when the necessary heirs are disinherited, i.e. excluded from the inheritance or deprived of the inheritance, in both cases by the will of the deceased.
- a) Exclusion of necessary heirs
A deceased may completely or partially exclude from the inheritance a necessary heir who, by violating a legal or moral obligation, has committed a serious offense against the deceased (if he/she insulted or rudely treated the deceased, if he/she intentionally committed a crime against the deceased, his/her child, adoptee, spouse or parent, or if he/she indulged in idleness and dishonest life).
Exclusion must be made by will, expressed in an unequivocal manner, and it is desirable for the cause of exclusion to be stated. The cause of the exclusion must exist at the time of the deceased’ s death. Proving the grounds for exclusion charges the person who is pointing out the exclusion. In the case of exclusion, the excluded person loses the inheritance to the extent that he/she is excluded, while the rights of others who can inherit are determined as if the excluded person died before the deceased.
- b) Deprivation of necessary heirs
If the descendant who is entitled to the necessary part is over-indebted or is a spendthrift, the deceased may deprive him/her in whole or in part of the necessary part by a will in favor of the descendant of the deprived. Deprivation is valid only if, at the time of the decedent’ s death, the deprived person has a minor child or a minor grandson of a previously deceased child, or if the deprived person has an adult child or an adult grandson of a previously deceased child, and they are incapable of earning for a living.
- V) Inheritance based on a will (testament / last will)
About testament in general
A will is a one-sided, personal and always revocable statement of the will, made by a person capable of that, by which he/she distributes his/her property in the event of death, in the form prescribed by law. A will can be expressed by a person who has reached the age of fifteen and is capable of reasoning.
Loss of the ability to reason after a will has been made does not affect its validity. Exceptionally, when the circumstances that were the testator’ s decisive motive at the time of the will changed significantly, the court may, at the request of the interested person, invalidate certain provisions of the will or the entire will if the testator could not do so by himself due to the loss of reason. The interested person may file this request within three years from the day of the proclamation of the will.
The testator’ s will to make a testament must be serious, real and free, and the intention to make a will must be determined and unconditional. The key thing is that the will must be made in the form and under the conditions determined by the Law.
For this reason, it is advised that, if possible, the testator compiles a court or notary will, because they provide the greatest certainty that the legal form shall be complied with, and thus the chances of annulling this type of will are the lowest. However, if the circumstances of the case or the situation requiring urgent action make it impossible to draw up a court will, or a will in the form of a notarial deed, it is important to know the rules for the composition of other types of wills, so that the wills drafted in other circumstances would be in accordance with the Law, i.e. valid.
- A personal will (Holographic will)
A testator who knows how to read and write can make a will by writing and signing it with his own hand. For the validity of a personal will, it is not necessary to indicate the date when it was made, but it is desirable. The most important thing in the case of this form of will is that the same is written entirely by the testator’ s hand, using the linguistic terms and writing style that the testator normally uses, and that in the end the testator signs it himself, since the basic thing that provides a certain level of credibility to this will is the testator’ s handwriting, i.e. the fact that the testator himself wrote it with his own hand. The most common mistake that occurs in this case is that the testator types the will on a typewriter or computer, and then only signs it in his own handwriting. Such a will would be null and void, since it is not a “personal will“. If the testator wants to type his will on the computer, for easier readability, in that case it is necessary to choose another form of will – written will in front of witnesses.
- Written will in front of witnesses
A testator who knows how to read and write can make a will by declaring in front of two witnesses that he has already read what has already been made in writing, that the latter represents his/her last will, and then sign the will in his own handwriting. Witnesses sign the will at the same time, and it is desirable to indicate their capacity as witnesses. Therefore, in this case, it is not relevant how the will has been made (whether the testator wrote it by hand, or typed it on a computer, or hired a third person (usually an attorney at law) to draft a will according to the testator’ s words and requests), but it is necessary for the testator to do all three actions enumerated above in the presence of two witnesses, who will sign the will in their own hand as well, with an indication of their characteristics.
- Judicial will
A court will is made according to the rules that apply to the compilation of documents. According to the testator’ s words, the will can be made by a judge, since the judge has previously determined the testator’ s identity. After the testator reads and signs such a will, the judge confirms at the will that the testator read and signed it in his/her presence. When the testator is unable to read the will made by the judge, the judge reads it to the testator in the presence of two witnesses, and then the testator, in the presence of the same witnesses, declares it to be his will and then signs the will or puts his right index fingerprint on the will. Witnesses sign the will at the same time, and the judge is obliged to confirm at the will that all these actions have been done.
Keeping a will in court
The testator may entrust his personal will, written testimony in front of witnesses and court will to the competent court for safekeeping in an open or closed envelope. The court will make a record of the receipt of the will and put the will in a separate envelope that will be sealed and kept in court.
- Consular will
A consular representative or a diplomatic representative of the Republic of Serbia who performs consular affairs may make a testament to a testator abroad, according to the rules that apply to compiling a court testament.
- International will
An international testament is valid regardless of the place where it was made and where the testator’ s property is located, regardless of the testator’ s citizenship, residence or domicile, if the will is made in the form of an international testament as follows:
An international will must be made in writing, but the testator does not have to write it in his own handwriting. The same can be done in any language, by hand or in some other way.
Authorized persons to act when compiling an international will are: a judge, consular representative or diplomatic representative of the Republic of Serbia who performs consular affairs, ship captain, troop commander and other military elder of his or higher rank, or someone else in the presence of one of those military elders, as well as every military elder of a separate detachment, or a notary public.
In the presence of two witnesses and a person authorized to compile an international will, the testator declares that his will has been made in writing and that he is familiar with its contents. The testator is not obliged to acquaint witnesses or an authorized person with the contents of the international will.
In the presence of a witness and an authorized person, the testator signs the will or, if he has previously signed it, acknowledges that and confirms the signature as his own. If the testator is not able to sign, he communicates the reason to the authorized person, who notes it on the will. The testator may request that the other person, acting on his behalf, sign him on the will, and the authorized person will record the latter on the will. Witnesses and the authorized person put their signatures on the will at the same time in the presence of the testator. Signatures must be placed at the end of the will. When a will consists of several sheets, the testator must sign each sheet or, if he is unable to sign, the will may be signed by another person on his behalf, or by an authorized person. Each will sheet must be numbered.
The date of drawing up an international will is the date under which it was signed by the authorized person. The authorized person drafts that date at the end of the will. When an interpreter is required to compile an international will, this is determined by an authorized person as well. The interpreter must meet the requirements for witnesses to an international will. If there is no mandatory regulation on keeping a will, the authorized person asks the testator if he wants to give a statement on keeping a will, and the place where the testator intends to keep a will is noted in the certificate issued by the authorized person.
The authorized person shall enclose a certificate in the international will, on the form prescribed by the relevant international convention. The certificate is drawn up in two copies, one of which is kept by an authorized person, and the other is handed over to the testator, as a proof that he has made an international will. The certificate of the authorized person is taken as sufficient proof of the formal validity of the writ as an international will, until proven otherwise.
An international will may be revoked in the same way as other forms of will, according to the provisions of the Law.
If the international will does not meet the legal criteria for its validity, but meets the criteria for the validity of another type of will, then the will will be considered valid according to the rules that apply to that other type of will.
- Ship’ s will
The testator may make a testament on a ship owned by the Republic of Serbia, according to the rules that apply to compiling a court testament, and the testament made in this way ceases to be valid thirty days after the testator’ s return to the Republic of Serbia.
- Military will
During mobilization or a war, a will to someone who is on military duty may be made by a troop commander and other military elder of his or higher rank, or someone else in the presence of one of those military elders, as well as every military elder of a separate detachment, according to the rules applicable to court will. The will made in this way ceases to be valid after the expiration of sixty days from the day of the end of the war, and if the testator is demobilized sooner or later than that – after the expiration of thirty days from the day of his demobilization.
- Oral will
A testator may express his last will orally in front of three witnesses present at the same time if, due to exceptional circumstances, he/she is unable to make a written will. An oral will shall cease to be valid upon the expiration of thirty days from the date of cessation of the circumstances in which the will was made.
The witnesses in front of which the testator orally expressed his last will are obliged to compile the testator’ s statement in writing without delay and to submit it to the court as soon as possible, or to repeat it orally before the court, stating when, where, and on what occasions the testator expressed his last will. However, the performance of this duty is not a condition for the validity of the oral will.
- Notarized will
A notarized will is made by a public notary in the form of a notarial record.
Testamentary witnesses must be literate, of legal age and of full business capacity, except in the case of oral testament, when witnesses do not have to be literate. In addition, witnesses of international will and written will before witnesses must also know the language in which the testator declares that the will is his, and witnesses of oral and judicial will must also know the language in which the will is made.
A testamentary witness cannot be a person who is a blood relative in the direct line to the deceased, a collateral relative up to the fourth degree of kinship, an in-law relative up to the second degree of kinship, a relative by adoption, a spouse, ex-spouse, extramarital partner, ex-extramarital partner, guardian, ex- guardian, ward or former ward. This does not apply to oral testaments.
- VI) When the will is invalid and the procedure of impeachment of the will:
An invalid will can be null and void or voidable.
- a) The nullity of a will
The nullity of a will will exist in one of the following cases:
- if its content is contrary to the imperative regulations, public order or good customs;
- if the testator is a person who has not reached the age of fifteen and a person who is completely deprived of legal capacity due to inability to reason;
- when the will is falsified.
Partial nullity of a will
This implies that the will is in part (i.e. in terms of certain provisions), and not in its entirety, null and void. The nullity of a provision of a will does not entail the nullity of the will itself if the will can survive without the null provision or if that provision was not the decisive motive for which the will was made.
Which provisions are considered null and void?
In general, the provisions limiting further disposal of property by the testator’ s heirs, the so-called creation of “dead hand goods“, and provisions by which property is left to authorized persons which were in charge for drawing up the will or to the testamentary witnesses or their family members, and specifically the following provisions:
- by which the testator determines the heir to his heir or delivery recipient;
- by which the testator forbids his heir or delivery recipient to alienate the thing or right that the testator left to him;
- which prohibits or restricts the division of inheritance;
- those provisions of judicial, consular, international, ship, military and notarial will by which something is left to the judge, public notary or to the authorized person, as well as to the spouses, ancestors, descendants and brothers and sisters of those persons;
- those provisions of written testament before witnesses, judicial, consular, international, ship, military and notarial testament by which something is left to testamentary witnesses, as well as to the spouses, ancestors, descendants and brothers and sisters of those witnesses;
- those provisions of oral will which leave something to testamentary witnesses, their spouses, ancestors, descendants and relatives in the collateral line up to the fourth degree of kinship, as well as to the spouses of all those persons.
The court monitors the nullity ex officio and it can be invoked by any interested person. The right to claim nullity is not extinguished, provided that it does not affect the rules on maintenance, acquisition from non-owners and obsolescence of claims. A null and void will is considered as a will that has never been made.
- b) Voidable will
A testament made:
- by a person who at the time of its compilation was incapable of reasoning (testamentary incapacity);
- under the influence of coercion, threats and fraud or in delusion about the facts that prompted the testator to make a will. The voidability of testamentary provisions made under the influence of the aforementioned do not entail the voidability of the remaining part of the testament, if the testament can survive without the voidable provision or if that provision was not the decisive motive for the testament;
- which is not made in the form and under the conditions determined by the Law.
The annulment of a will due to voidability can be requested only by a person who has a legal interest in it, since the court does not monitor this type of nullity ex officio, but only upon the objection of the party expressed in the court procedure. The annulment of the testator’ s will due to testamentary incapacity and defect of the testator’ s will may be requested within one year from the day of learning about the existence of the cause for the testament voidability (subjective deadline), and no later than ten years from the date of proclamation of the testament (objective deadline). The annulment of a will against an unscrupulous person may be requested within twenty years from the day of the proclamation of the will. The annulment of a voidable will due to violation of the form and non-compliance with the conditions determined by the Law may be requested within one year from the day of learning about the will existence, and no later than within ten years from the day of proclamation of the will. In any case, a subjective deadline of one year cannot begin to run before the will is declared.
VII) What happens in case of destruction, loss or concealment of a will?
A will that is destroyed, lost or hidden after the death of the testator, or before his death but without his knowledge and will, produces the effect of a valid will if the person concerned proves that the will existed, that it was destroyed, lost or hidden, that it was made in the form prescribed by the Law and if he/she proves the content of the will.
VIII) Can a will be revoked?
The testator can always revoke the will in whole or in part, by a statement given in any form in which the will can also be made, while a written will can be revoked by the simple destruction of this written document. When the testator does not explicitly revoke the testament made earlier, the provisions of the earlier testament remain in force if they are not contrary to the provisions of the later testament. If the testator destroys the later testament, the earlier testament is in force unless something else arises from the circumstances.
- IX) Contracts in Inheritance law
- a) The following contracts are null and void according to the legislation of the Republic of Serbia:
- Inheritance contract – a contract by which someone bequeaths his property or part of it to the other contractual party or to a third party.
- A contract of future inheritance or delivery – a contract by which someone disposes of the future inheritance he/she hopes for, as well as any contract of inheritance which belongs to a third party who is still alive.
- A contract on the content of a will – a contract by which the testator undertakes to include or not to include any provision in the will or to revoke or not to revoke any provision from his will.
Null and void contract will produce no legal effect ex tunc, i.e. it is considered that this type of contract has never been concluded, and therefore cannot be enforced through the court.
- b) Permitted contracts in Inheritance law are as follows:
- Contract on the assignment and distribution of property for life;
- Lifetime support contract.
- Contract on the assignment and distribution of property for life
This contract is concluded exclusively between the ancestor and his descendants, not third parties, and eventually the assignor of the property may include his/her spouse in this contract, if the spouse agrees, and then the spouse has the same position as the assignor’ s descendants.
More precisely, the contract transfers and distributes the property of the ancestor, during the life of the ancestor, to his descendants. The contract is valid only if all the descendants of the assignor who will be invited to inherit the assignor’ s inheritance by law gave consent with the agreed assignment and distribution of the ancestor’ s property, and if some of them did not give consent for the assignment and distribution of property, he/she could give it later. The contract is also valid if the descendant who did not give consent dies before the assignor or renounces the inheritance or is unworthy of inheritance, and does not leave offspring. When one of the descendants who became the heir did not agree with the assignment and distribution, the parts of the property that were transferred to the other heirs are considered as a gift.
The contract must be concluded before a notary public, in the form of a notarized (solemnized) document. During the confirmation (solemnization) of the contract, the public notary is obliged to warn the contractors in particular that the ceded property does not enter into the assignor’ s inheritance and that his/her necessary heirs will not be able to settle from it, which the public notary notes in the confirmation clause. Otherwise, the contract is null and void.
The contract can cover only the assignor’ s property that exists at the time of assignment and distribution, in whole or in part, while the provision of the contract that provides for the distribution of future goods that will be found in the assignor’ s inheritance at the time of his/her death is null and void. When the assignor dies, his/her inheritance consists of goods that are not covered by the contract of assignment and distribution, as well as goods that he subsequently acquired.
Upon assignment and distribution, the assignor may, for himself or his spouse, or for both, or for anyone else, retain the right to enjoy all or some of the transferred goods, may contract a life annuity in kind or in monetary funds, life support or any other compensation. When the enjoyment or life annuity is agreed for the assignor and his spouse together, and one of them dies, the enjoyment or annuity belongs in its entirety to the other until his/her death, unless otherwise agreed or if nothing else arises from the circumstances.
As we have already mentioned, the assignor can also include his spouse in the contract, if the spouse agrees, and then the spouse has the same position as the assignor’ s descendants. When the spouse is not covered by the assignment and distribution contract, his/her right to the necessary hereditary part remains intact, and the parts of the assignor’ s property that were distributed to his descendants are considered a gift made to these descendants by the assignor. In any case, the contract between the descendants remains in force.
The descendants between whom the assignor has divided his property are not liable for his debts unless otherwise agreed, while the assignor’ s creditors may contest the contract under the conditions for refuting free dispositions.
Revocation of this contract by the assignor is possible and permissible – the assignor may request that the descendant return to him everything he/she received if the descendant showed gross ingratitude towards the assignor. The assignor has the same right if the descendant does not give him or someone else the support determined by the contract on assignment and distribution, or does not settle the assignor’ s debts. In other cases of non-execution of encumbrances determined by the contract on assignment and distribution, the court, taking into account the importance of encumbrances for the assignor and other circumstances, decides whether the assignor has the right to return of the given goods or the right to request forced execution of encumbrances. The descendant who has returned the received may request the necessary hereditary part after the death of the assignor.
- Lifetime support contract
This contract obliges the recipient of support to transfer the property of precisely determined things or some other rights to the provider of support after his/her death, and the provider of support undertakes to support the recipient as compensation for that and to take care of him/her for the rest of his/her life, as well as to bury him/her after death. The support recipient by contract may include only things or rights existing at the time of the contract conclusion. Unless otherwise agreed, the support obligation includes, in particular, the provision of housing, food, clothing and footwear, appropriate care in sickness and old age, the cost of treatment and benefits for everyday normal needs. The claims of the support recipient cannot be transferred to another person.
The lifetime support contract must be concluded before a public notary, in the form of a notarized (solemnized) document. When confirming (solemnizing) the contract, the public notary is obliged to warn the contractors in particular that the property that is the subject of the contract does not enter into the inheritance of the recipient of support and that his/her necessary heirs cannot settle from it, which the public notary notes in the confirmation clause. Otherwise, the contract is null and void. Upon concluding the contract, the provider of support may secure his/her right from the contract by enlisting this right in the public book.
A special case of nullity of a contract will exist in a situation when the provider of support is a natural or legal person who, within his/her profession or activity, takes care of the recipient of support (medical staff, hospitals, various agencies, etc.), if the prior consent of the competent guardianship authority (center for social work) is not given with regards to this contract.
Termination of the contract on lifetime support:
- a) due to disturbed relationship
If the mutual relations of the contractors are disturbed for any reason so much that they become unbearable, each of them can request that the court terminate the contract. If the court pronounces the termination, the recipient of support is obliged to pay compensation for the received benefits and services. If the termination is due to the fault of one party, the other party is entitled to fair compensation.
- b) due to changed circumstances
If after the conclusion of the contract the circumstances change so much that its fulfillment becomes significantly more difficult, the court may, at the request of one or the other contracting party, re-arrange or terminate their relations. The court may transform the recipient’ s right to support into a lifetime annuity if the parties agree.
Annulment of the contract on lifelong support
If, due to the illness or age of the recipient of support, the contract did not represent any uncertainty for the provider of support, at the request of the legal heirs of the recipient of support, the court may annul the contract on lifelong support. The legal heirs may request the annulment of the contract within one year from the day of learning about the contract, and no later than within three years from the day of the death of the recipient. The one-year period cannot begin to run before the support recipient’ s death.
What happens when the support recipient outlives the support provider?
If the support provider dies before the support recipient, the support provider’ s obligations after his/her death may pass to his/her spouse and descendants who have been invited to inherit, if they agree to do so. If they do not agree to the extension of the lifetime support contract, the contract is terminated and they cannot claim compensation for the previously provided support. If the spouse and descendants of the support provider are unable to assume the contractual obligations, they can claim compensation from the support recipient in court proceedings, and the court will determine that compensation at its discretion, assessing the property status of the support recipient and those who were authorized to extend the contract.
- X) Acquisition of inheritance and inheritance statement
At the time of the deceased’ s death, the inheritance passes by force of law to his/her heirs. At the same time, the heirs acquire the right to renounce the inheritance. The right of the heir to claim the inheritance does not become obsolete, provided that the rules on maintenance, acquisition from non-owners and obsolescence of claims are not affected.
- a) Renunciation of inheritance
The heir may renounce the inheritance with a statement given before a public notary / court until the end of the first instance probate procedure. The heir may renounce the inheritance only in his/her own name. It is considered that the heir who renounced the inheritance was never the heir. If the declaration of renunciation of inheritance is given under a condition or a deadline, it will be considered a declaration that is invalid (as if it has never been given). Renunciation of inheritance cannot be partial and the same is irrevocable. However, an heir who has renounced the inheritance may request the annulment of the declaration of renunciation if the renunciation is the result of a defect of will (coercion, threats, fraud or delusion). An inheritance cannot be waived by an heir who has already explicitly or tacitly received the inheritance. In addition, the renunciation of inheritance that is not open is null and void. Finally, when the heir dies before the end of the first-instance probate procedure, and does not renounce the inheritance, the right of renunciation passes to his/her heirs.
Most often, the renunciation of the inheritance is done in favor of another heir. A waiver in favor of a certain heir is considered a statement of acceptance of the inheritance with the simultaneous assignment of the inheritance. Upon receipt of the assigned part, the rules regulating the matter of the gift apply to the relationship between the assignor and the recipient.
- b) Acceptance of inheritance
Inheritance acceptance can be tacit and explicit.
Tacit acceptance of inheritance will exist in the following cases:
- the heir has not renounced the inheritance until the end of the first-instance probate procedure;
- if the heir has already disposed of all or part of the inheritance. However, measures taken by one heir only for the purpose of preserving the inheritance and measures of its current management are not considered acceptance of the inheritance.
The explicit acceptance of the inheritance is given in a form of an inheritance statement. If this statement is made under a condition or deadline, the condition or deadline will be deemed nonexistent. Inheritance acceptance cannot be partial. The declaration of acceptance of the inheritance is irrevocable. However, the heir who received the inheritance may request the annulment of the statement of acceptance if the acceptance is the result of a defect of will (coercion, threats, fraud or delusion).
Form of the inheritance statement according to the law:
An inheritance declaration by which the heir has accepted or renounced the inheritance must meet the following conditions:
- must be signed by the heir (declarant) or his representative;
- the signature on the statement, as well as on the power of attorney (if the statement on behalf of the heir is given by his representative) must be certified before a public notary;
- the statement should state on what basis the heir has accepted or renounced the inheritance (i.e. whether the statement refers to the part that belongs to the heir by law or on the basis of a will, or the statement refers to the necessary hereditary part);
- the heir may give a statement of renunciation of the inheritance before the probate court and before any other court with real jurisdiction. The heir may also give this statement with the same legal effect before the consular representative or diplomatic representative of the Republic of Serbia who performs consular affairs.
- XI) Scope of the heir’ s liability for debts of the deceased
The heir is liable for the deceased’ s debts up to the value of the inherited property. The heir who renounced the inheritance is not liable for the debts of the deceased. When there are several heirs left behind the deceased, the co-heirs are jointly and severally liable for the decedent’ s debts, each up to the value of their inheritance part, regardless of whether the inheritance has already been divided or not. The same applies in case of testamentary inheritance – the debts among the co-heirs are divided in proportion to their hereditary parts, unless otherwise follows from the testament.
XII) Probate proceedings
The probate procedure determines who is the deceased, who are his/her heirs, the property that makes up the inheritance, as well as the debts of the deceased. In order for the probate procedure to be initiated, it is necessary for the fact of death of a certain person to occur. The probate procedure is initiated ex officio as soon as the court finds out that a person has died. The probate court will usually find out about the death of a person by receiving a death certificate, a public document proving the death of that person issued by the competent registrar. However, probate proceedings can also be initiated by interested persons who can inform the court that a person has died, in order for the court to initiate the procedure ex officio.
The procedure is initiated by the court ex officio as soon as the court finds out that someone has died in the area of its jurisdiction. It is also possible for the interested party, heir or creditor of the deceased to submit to the court evidence of the deceased’ s death and thus propose the initiation of probate proceedings.
The registrar registers the death in the register of deaths and is obliged to submit the excerpt from this register to the court within 30 days. The court issues a decision entrusting the public notary to compile the death certificate and submit it to the court within 30 days.
Upon the invitation of the public notary, the relatives of the deceased submit basic information about the deceased, about the property that constitutes his/her inheritance and about the persons who could be invited to inherit.
Procedure in case of a will
When compiling the death certificate, the public notary will check whether there is a written will or an oral will left after the deceased, and, if there is, the will left by the deceased will be submitted to the court together with the death certificate.
When the court determines that the person who left the will has died or has been declared dead, the court will open his/her will without damaging the seal, read it and make a record of it. This will be done regardless of whether the will is valid by law or not, and regardless of whether there are several wills or just one will. The opening and reading of the will will be done in the presence of two adult citizens, who can also be heirs. Heirs, legatees and other interested persons may attend the proclamation of the will and request a transcript (photocopy) of the will. The court with which the will is found or to whom it is submitted will open and read the will even though another court or foreign authority is competent to discuss the inheritance.
The court shall make a record of the proclamation of the will. If, during the opening of the will, it was noticed that the seal was damaged or that something in the will was erased, crossed out and corrected, or if anything else suspicious is found, it must also be stated in the minutes. The minutes shall be signed by the recorder and witnesses. The court will put a confirmation of its proclamation on the declared will, indicating the date of proclamation, as well as the number and dates of other found wills, if any.
If the deceased made an oral will and there is a document signed by the witnesses, the court will declare the content of this document according to the provisions that apply to the proclamation of a written will. If there is no such document, the witnesses before whom the oral will has been declared will be heard separately on the content of the will, and especially on the circumstances on which its validity depends, and the minutes of the hearing of these witnesses will be announced according to the provisions for written will.
If the written will has disappeared or has been destroyed independently of the deceased’ s will, and there is no dispute between the interested parties about the previous existence of the will, the form in which it was drawn up, the manner of disappearance or destruction, and the content of the will, the probate court will hear all interested parties and, according to their proposals, organize the presentation of necessary evidence, and the minute stating all the above facts and evidence which the court has determined will be promulgated according to the provisions that apply to the proclamation of a written will. If the inheritance or a part of it, if there was no will, would be inherited by the Republic of Serbia, the agreement of the interested persons on the previous existence of the will, on its form and content is valid only with the consent of the competent public attorney. If there are persons among the interested persons who are not able to take care of their own affairs, such an agreement will be valid only with the consent of the guardianship authority.
Proceedings of the probate court upon receipt of the death certificate
If, after receiving the death certificate, the probate court determines that the law of the Republic of Serbia is applicable to inheritance, the probate court may issue a decision entrusting the implementation of the probate procedure to a public notary, precisely to the one who made the death certificate, if there are no obstacles.
In practice, this is the most common case, so it is advisable to get acquainted with the fee for the services of a public notary in probate hearings. They are determined in accordance with the Tariff of the Public Notary as a Court Commissioner in the Probate Procedure (hereinafter: the “Tariff”). Based on this Tariff, the costs in the probate procedure are determined in a fixed amount, in the amount of 3 points for each party participating in the procedure. The value of the point is 150 dinars without VAT.
The public notary is entitled to one award for undertaking all actions in one probate procedure. The basis for calculating the award is the value of the inheritance. The value of the inheritance is determined on the basis of an assessment of the market value of the property and the rights that make up the inheritance, reduced by the decedent’ s debts. The value of the inheritance is assessed by a public notary and, exceptionally, by the court, when requested by the heirs, legatees or creditors of the deceased, or when the heirs or their whereabouts are unknown, when the heirs are persons who, due to minor age, mental illness or other circumstances are unable to take care of their own affairs, when the inheritance should be inherited by the Republic of Serbia or in other justified cases.
A tabular presentation of the value of the public notary’ s award in relation to the value of the inheritance is given in Article 8 of the Tariff, as follows:
|Inheritance value in Serbian dinars||Public Notary’ s Award expressed in points|
If the value of the inheritance exceeds 10,000,000 dinars, the award of 300 points is increased by 20 points for every new 1,000,000 dinars of the inheritance value, provided that the total award cannot exceed 400 points. If more than three parties participate in the procedure for discussing the inheritance, the award is increased by 10 points for the fourth and each subsequent party, but up to a maximum of 50% of the award calculated in the above manner.
What happens when there is no property left behind the deceased?
When the deceased did not leave any property or he/she left only movable property, the probate court will suspend the probate proceedings. In the second case, the court will act in this way only if none of the persons invited to the inheritance requests the hearing to be held.
Invitation of interested persons probate hearing
To determine the relevant matters with respect to the inheritance, the probate court will determine a hearing to which all interested persons are invited. The content of this invitation is explicitly determined by the law. If it is not known whether the deceased has an heir, the court will invite the persons claiming the inheritance to apply to the court within one year from the publication of the announcement. This announcement will be posted on the notice board of the court, published in the “Official Gazette of the Republic of Serbia“, and in another way if necessary. The court will proceed in the same way if a temporary guardian is appointed for the heir, because the heir’ s whereabouts are unknown and the heir has no proxy, or because the heir or his legal representative are abroad and both do not have a proxy in the Republic of Serbia, so the summons is not served. After the expiration of this deadline, the court will discuss the inheritance on the basis of the statement of the appointed guardian and the data available to the court.
In the probate procedure, the court will discuss all issues related to the inheritance, and especially about the right to inheritance, the size of the inherited part and the right to a legacy. These rights are decided by the court, as a rule, since the court takes all the necessary statements from the interested persons. The court will decide on the rights of persons who did not come to the hearing and were duly summoned according to the information at the court’ s disposal, taking into account their written statements which the court received until the moment of rendering the decision. When discussing the inheritance, interested persons may make statements without the presence of other interested persons, and it is not necessary in any case to give those persons the opportunity to express their views on the statements of other interested persons. If the court suspects that the person who claims the right to inheritance by law is the only or closest relative of the deceased, the court will hear persons which, according to the court’ s beliefs, could have an equal or stronger right to inheritance, and the court will invite those persons by an announcement in the manner described above.
Termination of the probate proceedings and referral to litigation
The court shall suspend the probate proceedings and instruct the parties to initiate litigation or proceedings before the administrative body, if the parties dispute the facts on which some of their rights depend, and in particular if the following is disputable: the right to inheritance, especially the validity or content of the will, the relationship between the deceased and his/her heir, who is inheriting the deceased by the Law; the facts on which the merits of the request of the surviving spouse and descendants of the deceased who lived with the deceased in the same household depend, referring to separation of household items which serve to meet their everyday needs from the deceased’ s inheritance, the facts on which the size of the inherited part depends, especially the inclusion of certain things and rights in the inherited part; the facts on which the validity of the necessary heirs’ exclusion depends, or the facts on which the validity of the reasons for unworthiness to inherit depends, as well as the fact on whether a person has renounced the inheritance.
If in the mentioned cases there is no dispute about the facts, but about the application of the law, the probate court will not suspend the procedure, but will discuss legal issues within this procedure.
However, if the heirs dispute either the facts or the application of the law, the court will always suspend the probate proceedings and instruct the parties to initiate litigation or proceedings before the administrative body in the following cases: if there is a dispute between the heirs as to which property enters the inheritance; if there is a dispute between the heirs regarding the request of the descendants of the deceased who lived in the community with him/her, requesting for a part that corresponds to their contribution in increasing the value of the deceased’ s property to be separated from the inheritance as the descendants’ direct property.
When the court determines which persons have the right to inherit, the court will announce those persons as heirs by the decision on inheritance. If in the probate procedure all the heirs agree on the division and the manner of division, the court will include this agreement in the decision on inheritance. The decision on inheritance will be delivered to all heirs and legatees, as well as to other persons who pointed out the request from the inheritance during the procedure, considering the existence of the right to appeal this decision (in case the heirs did not waive this right by a statement at the hearing). The final decision on inheritance will be submitted to the competent administrative body.
Inheritance claims after the decision on inheritance becomes final and the court proceedings in these cases
If, after the decision on inheritance becomes final:
- new property of the deceased is found, and that property was not known to belong to the inheritance at the time of the decision, the court will not hold the probate hearing again, but will distribute this property with a new decision based on the previously issued decision on inheritance, and if the inheritance was not discussed earlier, the court will discuss the inheritance only if the found property consists of real estate. If the found property consists of movable property alone, the court will discuss the inheritance only at the request of the interested persons. In this regard, if any of the heirs has previously renounced the inheritance, and property is found that at the time of the decision was not known to belong to the inheritance, the court will summon this heir to give an inheritance statement. If this heir now declares that the inheritance with regards to the newly found property is accepted, the court will act as in the case when a new heir appears.
- the will is found, the court will declare it and submit it to the probate court, and will keep its transcript. The probate court will not discuss the inheritance again, but will inform the interested persons about the proclamation of the will and warn them that they can exercise their rights based on the will in civil proceedings (litigation).
- a new heir who did not participate in the already held probate procedure appears, the probate court will not discuss the inheritance again, but will instruct that person that he/she can exercise his/her right in the civil procedure.