Law of succession
- drawing up testamentary dispositions: wills, contracts of inheritance and contracts of maintenance
- representation in probate procedure and at the probate hearing
- enforcement of a claim to the compulsory share
- succession disputes, preparation of an agreement on the distribution of the estate
The course of probate procedure
Probate procedure is civil non-contentious proceedings. They are divided into two stages: in the inventory stage the clerk acts and prepares the estate inventory, and thereafter forwards the documents to the notary public, who holds the probate hearing and transfers the estate.
In the inventory stage the clerk informs the persons interested as heirs that they may conduct settlement negotiations with one another and with the creditors of the estate, and also informs them of the possibility of mediation proceedings. Where an agreement is reached, the clerk forwards it to the notary public for approval, as a draft settlement annexed to the estate inventory.
A settlement approved by order of the notary public has the same effect as a settlement approved by a court. In practice this sentence means that a settlement concluded in probate procedure is not an informal arrangement but an enforceable resolution.
Testamentary disposition
A will fulfils its purpose if it is also faultless as to form. The testator’s testamentary disposition is published by the notary public at the probate hearing; it is at that point that it becomes apparent whether the instrument complies with the statutory requirements.
In the course of my professional activities as an attorney-at-law I draw up wills as well as contracts of inheritance and contracts of maintenance, and I make provision for the safe custody of the instrument.
The compulsory share
The compulsory share is not due automatically: it must be claimed by the person entitled to it. This is the most frequent misunderstanding in succession matters — many are under the impression that the notary public takes it into account of his own motion.
Agreement on the distribution of the estate
The heirs may also agree on the division of the estate in proportions differing from those following from the law or from the will. This is often more reasonable than creating undivided co-ownership in each asset, which subsequently gives rise to further dispute.
Frequently asked questions
Is an attorney-at-law required for probate procedure?
The law does not make it mandatory, but where there is a disagreement between the heirs, or where the estate includes real estate, a shareholding in a company or debts, legal representation materially influences the outcome at the hearing.
What happens if we do not agree?
Where the legal title of succession is disputed, the notary public transfers the estate with provisional effect and the dispute is decided by a court. It is for this reason that it is worth preparing the settlement before the hearing.
Is there a time limit for a claim to the compulsory share?
The claim must be enforced, and the rules on limitation apply to it as well. I can tell you the precise time limit on the basis of the circumstances of the case, and it is therefore not advisable to wait.