An inheritance pact is an agreement whereby a testator undertakes not to make a will, or not to amend or revoke a will that he or she has already made. The creation of an inheritance pact is permitted under the Inheritance Act, but such arrangements are rare in practice.
Inheritance and generational succession
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Inheritance is often associated with the later stages of life; however, an inheritance law issue may arise at any given stage of life. Our lawyers possess considerable experience in assisting in matters related to inheritance and generational succession.
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Deduction from inheritance
If a descendant has received a benefit of economic value from the deceased, the value of that benefit shall be deducted from the descendant’s inheritance if this was made a condition of the benefit. A condition requiring such deduction should be in writing and made known to the other descendants.
Administration of estate
Administration of an estate means the distribution of a deceased person's assets and liabilities. Unless continuation of an undivided estate is an option, the alternatives are private administration or public administration of the estate.
Private administration is the most common. The law requires that at least one adult beneficiary assumes liability for the deceased’s debts. If any of the beneficiaries are minors or otherwise lack legal capacity, the consent of their guardian is required. If all beneficiaries lack legal capacity, the estate may nevertheless be administered privately if the guardian(s) assume liability for the debts.
The district court issues a certificate of administration to the beneficiaries who have assumed liability for the debts, and these beneficiaries carry out the distribution of the deceased’s estate. Until the distribution is completed, the estate is held in co-ownership by the heirs, and significant decisions require unanimous agreement. If the heirs cannot agree on the distribution of the assets left by the deceased, any heir may demand that the assets be sold, unless otherwise provided.
Public administration takes place if no one assumes liability for the deceased’s debts, if the deceased has directed this in a will, or if one of the beneficiaries requests it. In practice, a request for public administration is usually made before the administration process has begun. However, even if the estate administration starts as a private administration, a beneficiary may demand that it be converted to a public administration as long as the private administration has not been completed.
In a public administration, the district court appoints an estate administrator, usually a lawyer. A preclusive notice to creditors is issued to identify the deceased’s creditors. Creditors who fail to submit their claims before the expiry of the notice period lose their right to recover the debt from the estate. The estate administrator prepares a proposed estate settlement, and the deceased’s debts are paid out of the assets of the estate. If necessary, the deceased’s property must be sold to satisfy the debts. Thereafter, any legacies are distributed to the legatees, and the remaining assets are divided among the heirs.
Springing power of attorney
The Guardianship Act defines an enduring power of attorney (future power of attorney) as a power of attorney granted to one or more persons to represent the principal after the principal, due to mental illness, including dementia, or severely impaired health, is no longer able to safeguard their interests in the areas covered by the power of attorney.
An enduring power of attorney is thus a private-law alternative to ordinary guardianship. Dementia and other serious illness may mean that a person will one day need assistance. By creating an enduring power of attorney, a person can decide that someone they trust will take care of their interests on the day they are no longer able to do so themselves.
Mutual will
A mutual will is a will made by two or more persons for the benefit of one another. A mutual will is a form of joint will and often contains provisions both regarding the distribution of the estate upon the death of the first testator and regarding the distribution of the estate upon the death of the surviving testator.
The same formal requirements apply to mutual wills as to wills generally. In addition, there is a special rule providing that if one of the testators wishes to revoke their part of the will, the revocation is valid only if the other testator is informed of it before the first testator dies.
Heir
A lineal descendant (or descendant heir) is an heir belonging to the first class of succession, meaning the deceased’s children, grandchildren, and further direct descendants. Under the Inheritance Act, if the deceased leaves descendants, the estate passes to them. If the deceased’s children are alive, they inherit directly. If one of the deceased’s children has predeceased the deceased, that child’s share of the inheritance passes to his or her descendants.
The descendants’ inheritance rights are subject to the inheritance rights of a surviving spouse or cohabitant.
The testator’s ability to restrict the descendants’ inheritance through testamentary dispositions is limited by the rules on forced heirship (the compulsory share of the estate reserved for descendants).
Forced heirship
Forced heirship is the portion of an estate that is legally reserved for the deceased’s descendants. Under the Inheritance Act, the forced heirship share is two-thirds of the deceased’s estate, but is capped at 15 times the National Insurance basic amount (G) at the time of death for each of the deceased’s children, or for each child's line of descendants. If the estate is small and the deceased is survived by a spouse, the descendants’ entitlement to a forced heirship share may be reduced because the surviving spouse’s statutory minimum inheritance takes precedence.
The testator is free to dispose by will of the portion of the estate that is not subject to forced heirship or the surviving spouse’s minimum inheritance rights.
Certificate of administration
A certificate of administration is a document issued by the district court in connection with the administration of a deceased person's estate. The certificate contains information about who the heirs are and, where applicable, who is authorized to carry out the private administration of the estate.
Will
As a general rule, anyone who has reached the age of 18 may determine by will how their estate is to be distributed upon their death. However, there are certain limitations. The testator may not reduce the descendants’ forced heirship share or the surviving spouse’s minimum statutory inheritance, and if the spouse’s remaining inheritance rights are to be reduced by will, the spouse must, as a general rule, be informed of this before the testator’s death.
A will must comply with certain formal requirements in order to be valid. It must be made in writing, and the testator must sign it in the presence of two witnesses. The witnesses must then sign the will while the testator is present.
Certificate of undivided estate
A certificate of undivided estate is a document issued by the district court confirming that the surviving spouse or cohabitant has taken over the deceased’s estate as an undivided estate. The certificate is issued if the district court finds that the legal requirements for continuation of the estate in undivided possession are satisfied and that the estate is not to be subject to public administration as a result of a partial undivided estate arrangement.
