Hereditary title: its types and hierarchy

Prerequisites for inheritance

You can only inherit if you meet a few basic conditions. First of all, it is logically necessary that the testator has died and that there are assets that you can inherit. The catch here, however, is that if the testator incurred debts during his or her lifetime, these debts will be part of the inheritance. It may be the case that the debts exceed his assets. And if you inherit assets, you inherit debts. In this case, you will probably want to give up the inheritance.

Another basic requirement is that you are an eligible heir. This can be natural or legal persons and even persons not yet born. At the same time, however, certain actions can deprive you of this status. You cease to be an eligible heir if:

• you have committed an intentional crime against the testator or his/her relatives.
• you have committed an act against the will of the testator (e.g. you forced him/her to sign a contract of inheritance).
• you are in the process of divorce proceedings with the testator, which the testator entered into because of domestic violence.
• you were relieved of parental responsibility as a parent on the basis that you abused or neglected her.

Along with heirship eligibility is the need for a succession title.

What is a hereditary title

It is the legal ground of inheritance that gives you the right to inherit. The succession title determines the legal basis on which property passes from the deceased to his or her heirs. It is the basic premise that determines who can become an heir and how the estate will be distributed. In general, the succession title can be understood as a legal framework that regulates the relations between the testator (deceased) and his potential heirs.

There are three inheritance titles in total: the contract of succession, the will and succession by operation of law. There is a hierarchy between these succession titles – the succession contract is at the top and has the highest authority in determining succession, with the will below it and intestate succession at the bottom. At the same time, the different succession titles are not mutually exclusive. Therefore, it is possible that the distribution of the inheritance will go partly to the heirs under the contract of succession and partly to the heirs at law, or even a single heir may inherit under both the contract of succession and the contract of succession.

Let’s now explain the different inheritance titles in more detail:

The contract of inheritance

The succession contract is the strongest succession title. It is a contract concluded between the testator (the person who wants to conclude the contract because he owns the property) and one or more heirs. Both parties entering into the contract must be of full age and have full capacity. In a contract of succession, the testator undertakes that, after his death, his property, or part of it, will pass to the persons with whom he contracts.

Specifics of the contract of succession:

• A legally binding act: Unlike a will, which the testator can unilaterally amend or revoke at any time, a contract of succession is a bilateral legal act. Once concluded, a succession contract cannot be unilaterally revoked, which provides greater certainty for both parties.
• Contents of the contract: A succession contract may provide that a person inherits the whole estate, a certain part of the estate, or only a specific item or value. The content of the contract is a matter of agreement between the testator and the heir.
• Conditions for conclusion: the contract of inheritance must be concluded in the form of a notarial deed, otherwise it will be regarded as a will.
• Obligatory share: even if the contract of succession is the strongest inheritance title, it must still respect the statutory provisions on the obligatory share for the intestate heirs, i.e. the children of the testator. If the contract omits these persons, parts of it could be invalid.
• Possibility of further disposition of property: despite the conclusion of the succession contract, the testator may continue to dispose of his property during his lifetime. This means that he can sell, donate or otherwise dispose of the property.
• Quarter of the estate: only three quarters of the testator’s estate can be subject to a succession contract. Thus, one quarter must be left free or a will can be made about it.

A will

A will is a unilateral legal act by which the testator (the person making the will) expresses his will as to how his property is to be disposed of after his death. It is one of the main succession titles and allows the testator to determine who will be his heirs and how his estate will be distributed. With a will, it is possible to avoid intestate succession, but only if it does not conflict with the mandatory share of the intestate heirs.

Specifics of a will:

• Unilateral act: Unlike a contract of inheritance, a will is a unilateral legal act that can be amended, supplemented or revoked by the testator at any time during his or her lifetime.
• Form: A will must be made in writing. The highest legal certainty is provided by a will drawn up by a notary in the form of a notarial deed, but it can also be drawn up by hand (holographic will) or on a computer, but in this case it is necessary to have at least two witnesses (allographic will) who are neither heirs nor have family ties with the heirs.
• Content of the will: the will may contain not only the distribution of property among the heirs but also various conditions (riders). These conditions must be in accordance with good morals and must not violate public policy.
• Mandatory share: Even when drawing up a will, the rights of the non-nominal heirs, which are the children of the testator who are entitled to their mandatory share, must be respected, despite other provisions in the will.

Inheritance by operation of law

Intestate succession occurs in cases where the testator (deceased person) did not leave a will, a contract of succession, or where the will and contract did not provide for all his/her property. It is a method of inheritance that is regulated by law and determines who the legal heirs are and how the inheritance is distributed.

Specifics of intestate succession:

• Automatic inheritance: if there is no valid will or contract of inheritance, inheritance is automatic according to the law. The same occurs if the heir to the will or contract refuses to inherit or is not eligible to inherit.
• Inheritance classes: inheritance by operation of law is based on the principle of inheritance classes, which determine who is entitled to inherit and in what order they inherit.
• Share of inheritance: the shares of the heirs are determined by law and are usually divided equally among all heirs of the same class. For example, in the first class, children and spouse inherit equally.
• Compulsory share: the rights of the non-nominal heirs, which are the children of the deceased who are entitled to their compulsory share and who cannot be excluded by a succession contract or will, are automatically taken into account in the case of a succession by operation of law.

Summary

You can only inherit if you are an eligible heir and meet other conditions, such as the existence of the testator and the estate. There are three main inheritance titles: contract of succession, will and intestate succession, which are hierarchically distinct from each other.

The contract of inheritance is the strongest title. It is a bilateral contract between the testator and the heir. A will is a unilateral act that allows the testator to express his will regarding the distribution of property. Intestate succession occurs when there is no valid will or succession contract, or when these instruments do not cover all the property. Succession is governed by statutory classes of succession, which determine who the legal heirs are and how the inheritance is to be distributed.