Understanding the Foundations of Inheritance: Navigating Legal Preconditions
In the intricate realm of inheritance, a set of pivotal conditions lay the groundwork for the transfer of assets and responsibilities from one individual to another. These legal prerequisites, known as assumptions for inheritance, create the framework within which the process unfolds. By comprehending these fundamental elements, individuals can gain insights into the intricate tapestry of inheritance law and probate proceedings. This article delves into the core preconditions that underpin the inheritance process, shedding light on the significance of each facet in shaping the destiny of estates and legacies.
Assumptions for Inheritance
Assumptions for inheritance are the conditions (legally relevant facts) that must occur for inheritance to take place, or for there to even be a possibility of discussing the inheritance in the probate proceedings.
There are four basic assumptions for inheritance:
- That the death of the testator has occurred
- The existence of an estate
- The existence of heirs
- That there is a basis for invoking the inheritance.
Death of the Testator
The testator can only be a natural person. At the moment of the testator’s death, the estate transfers from the testator to the heirs, so it is crucial to determine the exact moment of death. Determining the moment of death is important because depending on that moment, different rules apply regarding the circle of heirs, the order of inheritance, statutes of limitation, and the composition of the estate. The moment of death is not always easy to determine, and sometimes it is even impossible (for example, in the case of co-victims – individuals who died in the same tragic event, such as a plane crash, and could be heirs to each other).
Sometimes, the death of a specific person cannot be determined with certainty, and therefore declaring a missing person as deceased has the same effect as death.
Existence of an Estate
The estate represents the set of rights and obligations of the testator that are capable of being inherited (not all rights are inherited, usually those related to personal matters, e.g., the right of preemption).
Rights and obligations that are suitable to form the estate are mainly property rights and obligations, but also some public law rights, such as building permits, claims under contract law, and others.
Existence of Heirs
Whether someone is an heir is a necessary condition for that person to have experienced the moment of the testator’s death and to have been designated as an heir by law or will. These rules are more precisely regulated by the rules of representation.
Our law also recognizes the legal fiction that a conceived but unborn child (nasciturus) is considered already born, provided, of course, that it is born alive, and thus fulfills the condition to be an heir, and is considered to have inherited at the moment of the testator’s death.
Basis for Invoking Inheritance
The Law on Inheritance allows only two bases for invoking inheritance: by operation of law and by virtue of a will.
In what proceedings can the right to inherit from the testator be realized?
The legal right to inherit is realized in non-litigious proceedings under the jurisdiction of the basic court.
In the panorama of legal complexities and familial legacies, the assumptions for inheritance serve as guiding stars, illuminating the path for both testators and heirs. Through the lenses of these preconditions – the occurrence of the testator’s passing, the existence of an estate, the presence of heirs, and the foundation for invoking inheritance – a clearer understanding emerges, facilitating informed decisions and prudent planning. As the wheels of the probate process turn, these assumptions stand as the pillars of justice, ensuring the rightful passage of resources, obligations, and memories. So, whether one stands as the architect of their legacy or awaits their role in the journey of inheritance, the significance of these preconditions remains unwavering, shaping the destiny of estates in the tapestry of time.