Wills, or how to avoid disputes between heirs

Chapters of the article

• What is a will and what are its forms?
• Acknowledgement
• Testamentary contract
• Wills versus intestate succession
• Disinheritance
• What is a legacy?

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. Other reasons may be disapproval of the possible division of property according to inheritance classes, or bequeathing specific parts of property to specific people.

However, making a will may not bring peace of mind to the family either. In our law practice, we have also experienced a rather curious situation where the testator has made several wills in succession, depending on which of the heirs was particularly popular with him. Since it was not a will drawn up and filed with a notary public, multiple wills were discovered at home and disputes arose as to which one was the true and valid one. Even such a rare situation confirmed our opinion that making a will with a notary or attorney is the most efficient way.

What is a will and what forms are we familiar with?

Probably every lover of books or films, especially detective novels, has come across the term will. In fact, the content of a will can often be a clue to who the murderer is. But the reality of law or notary offices is much more prosaic. In legal terms, it is actually a unilateral “will”, i.e. an instruction as to how the estate is to be disposed of.

A will does not necessarily have to be drawn up with a lawyer. You can write it in the warmth of your home and the comfort of your bed. However, you must comply with the legal requirements, as making mistakes when making a will can lead to it being invalid. A will can either be written in your own hand or it can be typed on a computer and printed out. In the latter case, however, this should be done in the presence of at least two witnesses who will not become heirs or have family ties with the future heirs. The testator should never forget the date and signature so that there is no doubt about the validity of the will. If the will is made in the presence of witnesses, their signature is also necessary. The biggest pitfall of a will written at home is that it may not even be known about and is either thrown away or shredded in the liquidation of the estate or, at best, it may be found retrospectively, but this may happen when the estate has long since been settled by a notary, which causes considerable complications and legal hassles.

For this reason too, it can only be recommended that the services of a notary or a lawyer be used when drawing up the deed. It also eliminates the mistakes that sometimes happen when making wills – such as missing signatures or omissions of non-minor heirs. The will also cannot be lost, as the notary keeps it in a special register.

The will can be unilaterally changed or revoked, or a new will can be made. The original will is no longer valid. However, even a will does not allow us to circumvent the law by completely excluding non-nominative heirs, i.e. our own children (only disinheritance is an exception).

Acknowledgement

A will can be supplemented by a so-called codicil, which is a certain wish or condition on the part of the testator towards his heirs. However, a bequest can also exist separately – outside the will. It is one of the three types of acquisition in case of death recognised by Czech law. For example, if a wealthy elderly lady decides that one of her houses and its furnishings will be inherited by her elderly daughter, she can bequeath it to her by will. The will then stipulates that her beloved granddaughter will inherit her valuable collection of genuine crocodile skin handbags when she finishes her medical studies (but she may inadvertently end her granddaughter’s medical career, as she is vegan and does not care for any animal products).

However, a condition that would be contrary to good morals or public policy cannot be imposed by a child. Thus, it is not possible, for example, to make inheritance conditional on a prohibition to marry or remarry. 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.

Also, the addendum can be unilaterally revoked or modified.

Heirship contract

A contract of succession can also be concluded. This is still a relatively new institution in the Czech legal system, which has only been applied since 2014. As the name suggests, the contract of inheritance is indeed a bilateral negotiation (unlike the two previous types), where the testator can contract with the heir and specify in it exactly what he will inherit. Often, the heir will also pay something in return. At the same time, however, he or she can gain greater certainty that he or she will become an heir because, unlike a will or a codicil, an inheritance agreement cannot be unilaterally revoked or cancelled. 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.

Unlike the previous two types, the contract of inheritance must always take the form of a notarial deed. It cannot be drawn up and concluded at home. Unlike a will, it also cannot be used to decide on the entire estate, but only three quarters of it. A 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.

Wills versus intestate succession

Although you have made a will, intestate succession can occur in certain circumstances. This is a situation where either the will is invalid for some reason, or you have not (knowingly or unknowingly) left the whole estate. However, this is not necessarily necessary. If you want to bequeath only your house and leave other things like your car, watch and money in your account to the probate process, that is your full right.

Disinheritance

An intestate heir may be disinherited provided that at least one of the following legal grounds is present: the heir has not provided the necessary assistance to the deceased in his/her time of need, or he/she is not genuinely interested in the deceased. People who have been convicted of a crime indicative of their depraved character or who have led a permanently disorderly life need not receive an inheritance. In such a case, the unfortunate descendant may not see anything of your estate at all.

What is a legacy?

A bequest is not another type of last acquisition. On the contrary, one of these (typically a will) can be used for a bequest. A bequest does not divide an inheritance, but instead removes an item from the inheritance and leaves it, for example, to a person outside the circle of heirs. Such a person is in an advantageous position as 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 inheritance may be encumbered by the bequest. One quarter must remain unencumbered for the heirs.