Czech law of succession is regulated particularly in Civil Code No. 89/2012 Sb.
The law considers succession right to mean the right of a specific subject to a decedent’s estate, or possibly to the proportionate part of this decedent’s estate, during which time the decedent’s estate consists of all the deceased’s assets, apart from the rights and duties bound exclusively to his/her person, unless these have been acknowledged or enforced as a debt before a public authority.
An inheritance is considered to mean the decedent’s estate or its part in relation to the heir.
Who is the decedent?
The decedent is considered to be a natural person upon his/her death.
How is the decedent able to dispose of his/her property mortis causa?
The decedent may decide about the fate of his/her estate by making a disposition mortis causa, which may be (i) a testament, (ii) an inheritance contract, or (iii) a codicil. If the decedent does not do so, then the group of heirs is governed by the so-called statutory succession.
Who is an heir?
Heirs can be either natural persons, or legal persons existing on the date of the decedent’s death, or originating within one year of the date of the decedent’s death.
An heir is a person with succession rights, i.e., the right to at least a proportionate part of the decedent’s estate. Any natural person may be an heir, regardless of their age or capacity.
Who is a so-called forced heir?
In the words of the law, so-called forced heirs are primarily the decedent’s children. If these for some reason do not inherit, then their children are forced heirs. Forced heirs are entitled to a so-called forced share of the decedent’s estate. Forced heirs who are minors must inherit a minimum amount that is equivalent to at least ¾ of their statutory inheritance share. However, forced heirs who are adults must inherit at least ¼ of their statutory inheritance share.
One must remember that the decedent cannot restrict the forced share to which the forced heir is entitled, with the exception of valid disinheritance. Such actions would be considered ostensible and would be disregarded.
The forced heir’s entitlement to a forced share does not include the right to a share of the decedent’s estate, only to a sum of money equal to the value of his/her forced share.
Grounds for inheritance
Czech law differentiates three so-called grounds for inheritance on the basis of which the decedent’s estate can pass to the heir. This concerns inheritance on the basis of a testament, on the basis of an inheritance contract or by law. If the heir does not inherit on the basis of an inheritance contract, or on the basis of a testament, he/she inherits by law. However, if there is no statutory heir, or if this heir does not acquire the inheritance, the legatees become heirs according to the share of the value of their legacy.
Renunciation of succession right
A succession right may be renounced in advance by a contract with the decedent; unless stipulated otherwise, renunciation also has effect against the descendants. If a person renounces his/her succession right in favour of another, such renunciation is only valid if this person becomes an heir.
The agreement on renunciation of a succession right must be in the form of a public instrument; the rights and duties arising from such an agreement may be extinguished if the parties do so in writing.
Refusal of inheritance
The heir may also refuse the inheritance after the decedent’s death, however, the same only applies to a contractual heir if this is not precluded by the inheritance contract. If the heir refuses the inheritance, he/she is considered to never have acquired the inheritance.
Refusal to inherit requires an express declaration before a court of law. Inheritance may be refused within one month of the date the court notifies the heir of his/her right to refuse inheritance and of the consequences of such refusal; if the heir’s only residence is abroad, the time limit for refusal of inheritance is three months. If there are serious grounds for this, the court shall appropriately extend the heir’s time limit to refuse inheritance. The right to refuse inheritance expires upon elapse of the time limit for refusal of inheritance
Refusal of inheritance is disregarded if the heir’s actions alone make it obvious that he/she wishes to accept the inheritance. An expression of will whereby the heir withdraws his/her previous declaration that he/she refuses inheritance, does not refuse it or that he/she accepts the inheritance, is also disregarded.
Waiver of inheritance
An heir who has not refused inheritance may waive it in favour of another heir before a court during succession proceedings; if such refusal is made by a forced heir, he/she also waives his/her right to the forced share, which is also effective against his/her descendants. However, if the other heir does not consent to the waiver of inheritance, such waiver of inheritance is disregarded.
A disposition mortis causa is a testament, inheritance contract or clause.
In Czech succession law a testament is defined as a revocable expression of will by the decedent, whereby a decedent personally leaves to one or several persons at least a share in his/her decedent’s estate and possibly also a legacy, to be received upon his/her death.
If the day, month and year the testament was made are not clear and if the decedent made several contradictory testaments, or if the testament’s legal effects otherwise depend on determination of the time it was made, the testament is invalid. A testament must be interpreted so that it accommodates the decedent’s will to the maximum possible extent.
The words used in a testament are interpreted according to their usual meaning, unless it is proven that the decedent was in the habit of attributing a special meaning of his/her own to certain expressions.
The testament, as a disposition mortis causa, always has precedence over inheritance by law.
The decedent may also execute a testament in which he/she only disposes of part of his/her estate; in such cases the fate of the remainder of the decadent’s estate will be governed by the statutory succession of heirs
The most popularly used forms of testament include a testament by means of a private instrument (i.e., written in the decedent’s own hand), a testament by means of a public instrument (i.e., it was written on a computer, for example), or in the form of a notarial deed. However, the Civil Code also regulates specific cases of so-called concessions for execution of a testament.
1) Testament by private instrument
The decedent may execute the testament in writing without witnesses by writing the entire testament in his/her own hand and personally signing it.
2) Testament by public instrument
A testament not executed by the decedent in his/her own hand, which must be signed by the decedent personally and the decedent must declare before two simultaneously present witnesses that the document contains his/her last will and testament.
Witnesses are present during the making of a testament in such a manner that they are able to confirm that the decedent and the person making the testament are one and the same person. The witness shall sign the document containing the testament; the witness shall typically attach a clause referring to his/her capacity as a witness and containing information allowing his/her identification, to his signature.
A person lacking legal capacity or command of the language or method of communication used to make an expression of will may not be a witness.
An heir or legatee has no capacity to testify about anything left to him/her by the decedent. Likewise, a close person or an employee of the heir or legatee has no capacity to be a witness; in order for the provisions of a testament made in the favour of any such person to be valid, they must be written in the decedent’s own hand or confirmed by three witnesses. This applies analogically to a person designated by the decedent as the executor of the testament or the person acting as the writer, reader, interpreter or official in the making of the testament.
The person who has acted as the writer, witness, reader, interpreter, depositor or official during the making of a testament or any other legal action which is subject to the same requirements as the testament under this Act, is required to refrain from disclosing the content of the decedent’s will, unless it is obvious that the decedent wished otherwise; if such a person breaches this duty, he/she shall compensate the decedent for the harm thereby caused.
3) Testament in the form of a notarial deed (public instrument)
The decedent may express his/her last will in a public instrument, which is considered to be a notarial deed.
Clauses of lesser importance
Clauses of lesser importance may also be given in the testament. The decedent may include a condition, determination of time or mandate in the testament. However, these may not by directed towards obvious harassment of the heir or legatee as a result of the decedent’s manifest arbitrariness, nor may they be clearly contrary to public order. Clauses of lesser importance which are incomprehensible are also disregarded.
The Civil Code considers a clause of lesser importance, whereby a decedent obliges a person to enter into marriage or refrain from entering into a marriage, as inadmissible. The decedent may also designate the executor of the testament or administrator of the decedent’s estate in his/her testament.
The decedent uses an inheritance contract to designate the other contracting party as the heir. This contract must be executed in the form of a public instrument. If it is not in the form of a public instrument it is invalid, or may possibly be valid as a testament if it otherwise meets all the requirements of a testament.
Analogically to a testament, the inheritance contract is registered in the Notarial Records of Legal Actions In The Case of Death administered by the Notarial Chamber of the Czech Republic, which grants the contract an element of reliability, because this concerns a legal action that can be safely traced upon the decedent’s death.
An inheritance contract may only be concluded by an adult decedent who has full legal capacity. An inheritance contract is also limited as to the extent of property it can concern. Disposition of the decadent’s entire estate is not permitted under an inheritance contract. A quarter of the decedent’s estate must always remain vacant so that the decedent may make disposition thereof according to his/her specifically expressed will (either in the form of a testament or clause). If the decedent wishes to leave this remaining quarter to the contractual heir, he/she may do so in his/her testament.
It is important to state that the inheritance contract does not prevent the decedent from disposing of his/her property at will while he/she is alive. However, if the decedent makes a disposition mortis causa or enters into a donation contract that is not compatible with the inheritance contract, the contractual heir may invoke the ineffectiveness of such legal actions.
An inheritance contract concluded between spouses
This special provision concerns conclusion of an inheritance contract between spouses. Divorce does not extinguish the rights and duties arising from an inheritance contract, unless stipulated otherwise. After a divorce, each of the former spouses may claim cancellation of the inheritance contract by a court of law. However a court shall dismiss such an application if it is aimed against a person not at fault for the breakdown of the marriage and who disagreed with the divorce.
A codicil is another case of disposition mortis causa, by which the decedent may allocate a legacy, impose a condition on an heir or legatee, or determine a time or impose an order. A codicil cannot be used to designate a person as an heir, because a codicil is not grounds for inheritance. In practice, this most usually concerns specific supplementation of a testament by an attachment.
A codicil does not have to be made at the same time as the testament or inheritance contract, it may also be made separately.
The decedent may allocate a legacy by ordering a person, most often the heir, in a disposition mortis to surrender a bequeathed thing to a legatee. This may concern a movable or immovable thing. A legatee may only be a person with capacity to inherit. A legacy therefore establishes the legatee’s claim to the handing over of a specific thing or a claim to establish the legatee’s right to a specific thing. The legatee claims the right to a legacy directly against the heir. The legatee thereby differs from the actual heir, whose right to an inheritance is confirmed by a court of law.
The legatee has a different status to the actual heir. With regard to the fact that the legatee is not an heir, he/she is not liable to creditors for debts arising from the estate.
Legacies are charged to all heirs in proportion to their shares, with the exception of cases when the decedent specifically orders an individual co-heir or legatee to carry out a legacy. At least one-quarter of the value of the inheritance must also be left free from charge with legacies for each heir. And if the decedent charges the heir in excess, the heir is entitled to a proportionate reduction of the legacy.
Where there is no succession of heir under an inheritance contract or testament, statutory succession of heirs to the decedent’s estate or part thereof arises.
If there is no statutory heir or if he/she does not acquire the inheritance, legatees become heirs in proportion to the value of their legacies.
Czech succession law recognises six classes of heir.
Where no heir inherits even under statutory succession of heirs, the inheritance shall devolve to the state in the form of so-called escheat.
A family relationship is a relationship between two natural persons based on a blood tie or on the basis of adoption. Family relationships in the direct line (a relationship between an ancestor and a descendant) and family relationships in the collateral line (other family relationships between a person and persons with a common ancestor) are recognised. The closeness of the family relationship is based on the level, or how many births there are between two relatives in the direct line and how many births there are to the closest common ancestor in the collateral line.
A particularity of Czech succession law is so-called multiple family relationships, i.e., several family relationships, which means that if someone is a relative of the decedent on more than one side of the family, this person has succession rights from each side, which he/she would hold as a relative from that particular side.
First class of heirs
The decedent’s children and spouse inherit in the first class of heirs, each of them equally.
If any of the children does not inherit, his/her share is inherited equally by his/her children; the same applies to more distant descendants of the same ancestor.
Second class of heirs
If the decedent’s descendants do not inherit, the second-class heirs include the spouse, the decedent’s parents and also those persons who lived with the decedent in a common household for at least one year before his/her death and, as a result, cared for the common household or were dependent in maintenance on the decedent.
Second class heirs inherit equally, however, the spouse shall always inherit at least half of the decedent’s estate.
Third class of heirs
If neither the spouse nor any of the parents inherit, the decedent’s siblings and those persons who lived with the decedent in a common household for at least one year before his/her death and, as a result cared for the common household or were dependent in maintenance on the decent, inherit in the third class of heirs equally.
If one of the siblings does not inherit, his/her share of the inheritance is inherited by his/her children equally.
Fourth class of heirs
If no heir in the third class inherits, the decedent’s grandparents inherit in the fourth class equally.
Fifth class of heirs
If none of the fourth-class heirs inherits, only the grandparents of the decedent’s parents inherit in the fifth class. The grandparents of the decedent’s father are entitled to half the inheritance and the grandparents of the decedent’s mother are entitled to the other half. Both pairs of grandparents shall equally divide between them the half to which they are entitled.
If an individual member of a couple does not inherit, the vacant eighth shall devolve to the other grandparent. If a couple does not inherit, this quarter shall devolve to the other couple from the same side. If neither of the couples from the same side inherits, the inheritance shall devolve to the other couples on the other side, in the same proportion as they divide half of the inheritance to which they are entitled directly.
Sixth class of heirs
If none of the fifth-class heirs inherits, the sixth class of heirs shall include the children of the decedent’s siblings’ children and the children of the decedent’s grandparents, each of them equally.
If any of the children of the decedent’s grandparents does not inherit, his/her children shall inherit.
The death of a person is essentially determined by a physician who reports the death to the municipal authority with jurisdiction according to the deceased’s residential address. The local registry registers the death in the Ledger of Deaths and notifies the court of law with local and subject-matter jurisdiction, which then initiates a succession proceeding by resolution, on the basis of which a notary is designated as the judicial commissioner for executing the succession proceeding according to a schedule of succession proceedings. However, the succession proceeding may also be initiated at the proposal of an heir, particularly if the decedent died in a foreign country. A succession proceeding must always be initiated even if the decedent did not own any property.
The notary’s first act is a so-called preliminary investigation. The designated notary summons a person who is familiar with the decedent’s family and property relations – most usually the person arranging the funeral. The purpose of the preliminary investigation is particularly to establish potential heirs, acquire information about any disposition the decedent left mortis causa, and establish the decedent’s property, including the existence of any potential community property of spouses. This investigation is simply for the purpose of initially acquainting the notary with the decedent’s property and family relations; the notary establishes all important information him/herself by means of public databases and collaboration with other institutions (banks, Land Registry, etc.)
After the preliminary investigation is completed, the notary establishes information about the decedent him/herself, most often using the Records of Legal Actions In The Case of Death administered by the Notarial Chamber of the Czech Republic, where he/she searches for information about potentially existing testaments, inheritance contracts or other materials used in succession proceedings. The group of heirs is verified in the central population records. The notary acquires a summary of ownership of real estate from the Land Registry and he/she may contact a bank directly in the case of bank accounts.
If the decedent did not leave any property in his/her estate, the notary discontinues the proceeding. If the decedent left only property of inconsiderable value, or property without value, then the property is released to the person who arranged the decedent’s funeral and the succession proceeding is simultaneously discontinued.
As soon as the notary clarifies all circumstances necessary for directing a succession proceeding, he/she orders a so-called final hearing. The notary summons all potential heirs to the final hearing and instructs them in their succession rights and also in their rights and duties.
If the heirs agree on settlement of their inheritance shares, the notary issues a resolution of approval of the inheritance agreement. If the heirs do not reach an agreement, the notary issues a resolution according to which the inheritance will be divided according to the statutory shares. The succession proceeding is essentially complete once the resolution becomes legally effective. If the inheritance included an immovable item, the notary him/herself notifies the Land Registry of changes to ownership.
Upon completion of the entire proceeding, the notary is entitled to a reward for his/her services, which is calculated according to the notarial rate in relation to the value of the inheritance.
If property belonging to the decedent, which was not included in the decedent’s estate, appears after the succession proceeding is legally effectively complete, this property is additionally debated.
JUDr. Vojtěch Steininger, LL.M.
Mgr. Hedvika Hartmanová
Hartmanová & Steininger, advokáti
CZ – 110 00 Praha 1
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