Inheritance proceedings have precise rules that determine, for example, the amount of the shares of inheritance. However, sometimes the share may be reduced by gifts received by the heir from the testator during his or her lifetime. How does this principle apply and when does it occur?
The rights of some (especially non-nominated) heirs are sometimes somewhat “circumvented”, although this can happen in a perfectly legal way. This happens, for example, when one of the heirs persuades his or her parents before death to give him or her a house, apartment or other valuable property that would otherwise be inherited not only by him or her but also by siblings. They are thus significantly reduced in their share of the inheritance.
How to defend yourself? Firstly, you need to invoke the so-called “collation”. In inheritance proceedings, this means setting off what some (non-nominal) heirs have received from the deceased in the last three years before his death. However, such set-off does not take into account the usual gifts such as Christmas or other ordinary gifts.
The set-off is not automatic; the heirs must insist on the set-off. The notary must be informed of all major gifts made in the three years prior to the death of the testator, unless the will provides otherwise. At the same time, collation can be excluded in the will altogether.
For example, what the testator gave during his lifetime to set up a separate household or to start a business is counted. What he used to pay the debts of a descendant is also included. The three-year period may be extended or even shortened in the will, or the possibility of collation may be expressly excluded altogether.
In practice, one can imagine a situation where a mother gives an apartment worth CZK 2,500,000 to one of her three sons shortly before her death. She then leaves only cash in the amount of CZK 300,000 and movable property of practically zero value in her estate. Each of the sons would thus be entitled to CZK 100 000 from the estate. One, however, has already received an apartment far in excess of that value, so he will receive nothing and only the other two will share. His share will be divided between them, i.e. both of them will receive CZK 150 000. However, this does not compensate them for the total “loss”.
The donee in our example, on the other hand, does not have to worry about giving anything back, he just gets nothing from the estate. If the gift of the flat had taken place, for example, five years before her death, there would be no set-off, unless Mum had specified otherwise in her will. In this case, each of the sons would receive 100 000. However, all this applies only to the non-nominal heirs.
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A death in the family always brings with it great emotions. However, it doesn’t have to end at the moment of the funeral. The next wave of emotions often comes during the succession proceedings. Arguments and disputes over the deceased’s estate, checking whether each heir has received an equal share – this is also the reality of many families and certainly does not add anything to family relations. It is one of the reasons why many people consider making a will. This can bring order to a messy situation, but this is not always the case. This is the subject of our article.
However, there is also an institute called “set-off against the share of inheritance”. This principle differs from the above in the range of persons involved and in the fact that the testator must express his will to set off the gift against the share of the estate in writing and in the form of a will, a succession contract or a codicil. Gifts to all heirs are then set off. In practice, however, the notary who has been entrusted with the settlement of the succession may not be aware of the making of all the gifts.
The heir must therefore object to the set-off in the proceedings and draw the notary’s attention to this fact. There may also be disputes as to what was given to whom and when. For example, if the testator gave a movable object of considerable value, such as a painting by a famous painter. Such things are not recorded in any public list, so it is not easy to find out when such an item was donated.
However, as can be seen, in many cases, a collation will not be sufficient and the key asset will not “revert” to the estate. In such a case, there is no option but to go to court and seek the annulment of the gift deed itself, which may have been concluded, so to speak, ‘under duress without the testator’s free or serious will’. However, it is then necessary to be prepared for an uncertain dispute and the need to prove the specific circumstances of the signing of the deed of gift. However, most of these disputes are unsuccessful.
Saying goodbye to the deceased is an emotionally very difficult situation. Unfortunately, the worries don’t end there, because there are inheritance proceedings to be held, during which the deceased’s estate is divided among the heirs. We will advise you in our article how to handle this difficult situation in the best possible way, what to do in case of the deceased’s debts and how to avoid disputes and settle with the other heirs.
Summary:
Collation is an important institute in inheritance proceedings, which is designed to ensure a fair (or rather more fair) distribution of property among the heirs. Collation consists in counting the value of gifts received by the heir from the testator during his or her lifetime against his or her share of the inheritance. The application of corollary helps to avoid situations where one heir’s estate is unduly favoured at the expense of the others. The principle applies in particular to non-nominal heirs, such as children or spouses. Usual gifts are not counted, but larger gifts, for example for housing or business, are. If the correlation is not applied correctly, other heirs may be left short of their shares.
By contrast, under the set-off, gifts to specific heirs are set off against the share of the estate on the basis of the testator’s will, expressed, for example, in a will or succession contract. It is required that the testator expressly expressed this will.
We prepared this article for the Lidové noviny series “Law & Housing”. See also other articles from the series:
Our team of experienced attorneys will help you solve any legal issue. Within 24 hours we’ll evaluate your situation and suggest a step-by-step solution, including all costs. The price for this proposal is only CZK 690, and this is refunded to you when you order service from us.
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