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 certain (unremembered) 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.
However, what is counted is what the deceased provided during his lifetime to set up an independent household or to start a business. What he used to pay the debts of a descendant is also counted. The three-year period can be extended or even shortened in the will, or the possibility of collation can 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, on the other hand, does not have to worry about having to give 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. Each of the sons would thus 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”. Thisprinciple 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.
We prepared this article for the Lidové noviny series “Law & Housing”. See also other articles from the series:
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