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Treat your children… but think of yourself too

As a rule, parents wish their children the best. They want them to be secure and safe, to be able to live easily or to be able to take out a mortgage. But in this effort, they often forget themselves. They give them a house, they give away their property and in their old age they may have nowhere to live and nothing to pay for it. Especially if relationships go wrong.

darování majetku dětem, vztahy v rodině, setkání rodiny
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Chapters of the article

What does the Affordable Advocate recommend? Not giving the kids anything and thinking mainly of yourself? That may not be the only way. In fact, there are legal institutions that allow you to be generous to your children, but not go broke at the same time. Some, on the other hand, protect the property itself so that the children cannot immediately “squander” it Let’s see which ones they are.

Donating property with conditions

Donation with conditions

If we make a so-called gift with a condition, then at the same time as the gift we impose an obligation on the donee to do, omit or tolerate something. For example, to give something to a third party. Failure to comply with the order is legally enforceable.

Donation with a purpose

In this type of gift, you can specify the purpose for which you are making the gift. For example, you give money to pay for the person’s school fees (or car). But in this case, the purpose is not legally binding. It is therefore more of a moral obligation. li.

Tip: Parents often choose to give their house or apartment to their children. Unfortunately, however, we also encounter cases that do not go smoothly – sometimes the donation of real estate inflames already strained relationships and the donor does not know how to get out of it. So what are the downsides of gifting property and what should a good contract contain? This is the focus of our separate article.

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Conditional donation

Adonation can also be conditional. This should be achievable and subjectively or objectively possible for the donee. However, the intended legal effects will not be given by conditions that are immoral, chicanerous or contrary to the public interest.

Disposal of the subject-matter of the succession

Even the future content of an inheritance is often the subject of various contracts and conditions. For example, a testator may have spent a lifetime accumulating certain assets and certainly does not envisage that a descendant will spend them on expensive cars and a trip around the world within a year. Again, the law allows for various obligations.

Inheritance contract

This is still a relatively new institution in the Czech legal system. It is a bilateral act where the testator enters into a contract with the heir, specifying exactly what he or she will inherit. In turn, the heir accepts his role and both parties are bound by the contract.

Sometimes the contract also agrees some consideration for the heir, such as a payment. One can imagine, for example, a situation where the testator promises a certain person that he will inherit his house worth several million if, in return, he now provides him with several hundred thousand to ensure a dignified old age. This can be a win-win situation for both persons: the testator currently needs funds but does not want to sell the roof over his head, the future heir can come relatively cheaply to the property. In addition, an expected inheritance under a succession contract provides much more security than a will, because unlike a will, a succession contract cannot be unilaterally revoked or revoked. At the same time, however, it should be noted that the testator may continue to dispose of the property covered by the succession contract during his or her lifetime. It may happen that he or she eventually sells the promised house and almost nothing remains of the inheritance. On the other hand, the person who is called heir by the contract cannot transfer his right (i.e. the right to inherit the property) to someone else unless the contract expressly so provides.

The contract of succession must always take the form of a notarial deed, i.e. a public deed. It cannot be drawn up and concluded at home. Unlike a will, it cannot be used to decide on the whole estate, but only three quarters of it. One quarter must remain vacant. However, nothing prevents the testator from making a will for this part of the estate and thus bequeathing all the property, even to the same person.

How can a codicil help us?

The so-called codicil is a separate legal institution. Unlike a will, it does not directly designate the heir, but can express or make other arrangements – for example, to impose a condition or order on the heir or legatee. A bequest is made either with the will or separately. It is then subject to similar requirements as a will.

As an example, consider a situation where a wealthy lady decides that her house and all its furnishings, furniture and valuables will be inherited by her daughter. She therefore leaves it to her by will. She then stipulates in her will that her grandson will inherit the valuable coin collection when he completes his medical studies. Once the condition is fulfilled, the mother is obliged to give it to her daughter.

However, a condition contrary to good morals cannot be imposed by a dowry. It is therefore not possible, for example, to make the inheritance conditional on a prohibition to marry or remarry (not that remarriage is contrary to good morals, but it is immoral to force someone to marry in this way). Nor can a condition be imposed which is contrary to public policy or impossible. The law knows of conditions precedent, where the acquisition of the inheritance occurs only after a certain condition has been fulfilled. In the meantime, someone else may become the heir of the property in question. On the other hand, in the case of a condition precedent, the person becomes heir immediately, but if he fulfils the condition, he loses the inheritance.

It is also possible to impose an obligation on the heir by way of an order, for example, that he must mow the meadow he inherits. In such a case, the order is also treated as a condition precedent, and if the order is not carried out (or implemented), the provision is revoked by the heir.

A bequest, like a will, can be unilaterally revoked or varied.

What is a bequest?

A bequest is not a separate type of last acquisition. One of these (typically a will) can be used for a bequest. A bequest does not divide the estate, but instead removes a certain thing from the estate and leaves it to a person outside the circle of heirs. The will then imposes an obligation on the heir (or other legatee) to hand over the item to the legatee.

The person concerned is to a large extent in an advantageous position, since he is not an heir and is therefore not subject to the provisions on the succession of debts, etc. However, no more than three quarters of the estate can be encumbered by the legacy. One quarter must remain unencumbered for the heirs.

The subject of the legacy can be almost anything, whether it is real estate, money, debts or movable property. Although the heirs are obliged to hand over the items. On the other hand, the law also protects them by giving them the right to cut the legacies proportionately if they concern the bulk of the estate.

Easements and easements

Parents often choose to give their house or apartment to their children. This works out cheaper than what it would cost to settle the estate in probate. In addition, they have control over the division of their property between their children and can avoid arguments over property. However, the donor often does not have a house or apartment other than the one they are transferring to their children. He or she wants to continue to live there with dignity. This situation can easily be resolved by including an easement in the donation agreement itself and having it registered in the Land Registry at the same time as the new owner.

Sometimes easements and their conditions are quite complicated, but the meaning is clear – no one can then evict the donor from the apartment or house against his will, even if he is no longer the owner. However, it is important to remember that the registration of an easement in the Land Registry reduces the value of the property. It cannot then be practically mortgaged at the bank and you can only sell it well below the price.

In the new Civil Code, the legal regulation of easements has been enriched and they are now divided into easements and real easements.

An easement is an obligation of the owner of the thing to remain passive in defined cases towards the beneficiary of the easement. In other words, to tolerate or refrain from certain activities which, without the existence of the easement, he would not have to tolerate.

We can illustrate this with the example of Mr Dvořák owning the land on which the driveway to Mrs Vrbová’s house runs. This land of Mr. Dvořák is encumbered by a road easement in favour of the land on which Mrs. Jelínková’s house stands. As a result, Ms. Vrbová has a right of way to her house across Mr. Dvořák’s land and Mr. Dvořák must tolerate Ms. Vrbová’s driving through it. The same can be done for the water supply, electricity or the right to graze the sheep.

The following easements are also expressly mentioned in the law: the support of a foreign building, the easement of a gutter, the right to drain rainwater, the right to water, the easement of a spillway, the easement of a path, etc. However, it is also possible to establish other easements that are not described in the law. However, they must not be contrary to the law and therefore contrary to good morals and public order.

What is a real burden?

Areal burden is actually an easement in reverse. The content of a real burden is that the owner of a thing must actively give or do something. An example of a real burden is often given as an exchange, where the obligor provides the beneficiary with housing but also provides maintenance or personal care. This is also the case in some gift agreements.

Returning to our example of Mrs Vrbová and Mr Dvořák, it looks something like this: Mrs Vrbová gives her son Jirka an apartment. In the contract, she exchanges that Jirka must help her with cleaning, shopping and take care of her when she is unable to do so for the rest of her life.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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