Everyone is allowed and free to dispose with its assets in case of death. In the event one did not leave a last will, testament or lifecare contract, probate proceeding will be conducted and the property will be divided among the heirs in accordance with the law.
Are you completely free to dispose with your assets or the heirs are protected in case being left without any asset? You can find the answers below.
FORMS OF INHERITANCE
In the Republic of Serbia these are following forms of inheritance:
1. Inheritance by law
This form of inheritance can be used only if there is no other form of inheritance applicable,
more precisely if:
- The deceased has not left a testament or if the testament is recalled later, or if it is null and void;
- The legal heir designated in the testament does not want to inherit or is not allowed to inherit, and there is no substitute designated in the testament;
- The testament is destroyed, lost or hidden, and if the court cannot determine its existence, form or content;
- The deceased disposed only with part of his property in its last will;
- Only the legatee is designated in the testament and only part of the property is disposed in last will.
Inheritance by law means legal heirs are grouped into hereditary orders. The relatives from the first order inherit first, and if none of them cannot or do not want to inherit assets, then relatives from the second order inherit, etc.
This form of inheritance is the most common in the Republic of Serbia.
Legislative in the Republic of Serbia also recognized the forced heirship. This institute is imperative and can be applied only if the deceased makes a testament in which disposes with assets portions which are protected and saved for the legal heirs.
It is important to point out that, under strict legal conditions, it is possible to exclude heirs from the forced heirship with testament provisions, in which case the legal heir will not inherit any of assets.
2. Inheritance based on Last Will and Testament
Testament is an unilateral, strictly personal and recallable statement in which the deceased disposes with its assets in case of death, and also makes some other statements in regard with his death. The intention to constitute a last will must be serious and real, with free will.
A testament has to be composed following strict formal rules determined by law, otherwise it does not have legal effect. Also, testament may be deposited with the competent authority.
In addition to the mentioned forms of inheritance, the Inheritance Act of the Republic of Serbia also governs other ways to dispose with assets in case of death.
FOREIGN CITIZENS AND INHERITANCE IN SERBIA
The Inheritance Act of the Republic of Serbia provides that foreigners, under the condition of reciprocity, inherit assets in Serbia under the same conditions as domestic citizens (find out more about reciprocity in our blog Buying property in Serbia).
If you live abroad, your presence is not necessary during the probate proceeding nor in case of making the last will. It is possible to engage an attorney at law from Serbia to represent you in probate proceedings in Serbia, and you can also certify the inheritance statement abroad in the manner described below.
At the moment of death, the assets of the deceased passes to heirs. Heirs can give inheritance statement, otherwise they have to receive the summons for hearing abroad, which could be time-consuming. The heirs also can give a statement refusing to accept the assets from the deceased, which will produce some tax implications as this statement is considered as gift deed.
If you live abroad, you can certify the power of attorney, as well as the inheritance statement before Embassy of the Republic of Serbia in your country. It is necessary to personally approach the consular department of the embassy in your country, with the text of the power of attorney and/or inheritance statement.
After the certification, it is recommended to deliver the power of attorney and the inheritance statement to the Attorney at Law in the Republic of Serbia, who will further represent you in the probate proceeding in Serbia, without your presence.
Agreements on Assignment and Distribution of Property during Lifetime
During lifetime an ancestor is allowed to dispose with its assets and divide it among descendants. All descendants, who are allowed to inherit according to the rules of inheritance by law, has to agree with this disposal in order for agreement to be valid. This agreement will be valid even if one of descendants gives its consent later or if such descendant dies before the ancestor, and in some other cases as well. It should be emphasized that the assets subject to this agreement is not the subject of probate proceeding. This agreement has to be in writing and certified by notary public, otherwise it is null and void.
The Life Care Contract
This contract oblige the one party to, first of all, take care during lifetime and, afterwards, bury the other contracting party in case of death, while the other one who is taken care of is obliged to transfer ownership rights on some of its assets to the first party. Obligation to take care of someone includes providing food, clothes, taking care for the elderly, covering medical expenses, etc. This agreement also has to be in writing and certified by notary public, otherwise it is null and void.
It is important to point out that this agreement is complex and that in practice it causes long-lasting court proceedings. Thus we strongly recommend you to consult an attorney at law in Serbia, before making your decision.
THE PROBATE PROCEEDINGS
The probate proceedings may be run by the court, while the probate court may pass it to the notary public, which is the most common situation in practice.
Costs of the probate proceedings
The probate procedure is necessarily followed by expenses. Here below is a summary of all costs that will incur due to the probate proceedings.
- Costs before the notary public
It consists of fee for composing the death certificate and, if the court decides for notary public to run this process, there is also fee determined by the official notary tariff.
Inheritance tax liability arises on the day the court enacts final decision is probate proceeding. There are also benefits and discounts on taxes, precisely prescribed by law.
- Attorney’s fees
If you have decided to engage an attorney at law, you should consider additional fees.
Since inheritance law is very complex area, we advise you to engage an attorney at law who has professional knowledge in the field of inheritance law, each time you decide to make a last will, any agreement or initiate probate proceeding.