The legal capacity of the succession
Individual people and legal entities (acknowledged institutions, like societies, foundations and organizations with a legal status, cooperatives and societies or other institutions with a legal status of the public law, such as the ecclesiastical institutions), but also not acknowledged institutions or those ones without a legal status are capable of succeeding.
When properties are inherited, it applies to these persons to open the proceeding. (that means to be registered as the owner of the property).
An unborn child, but already conceived in time of the opening of the proceeding, is entitled to the succession. It will be considered to have been conceived in time of the opening, if it would be born within 300 days from the death of the testator.
Further the children of an alive person could also inherit, even if they have not been already conceived.
The unworthiness
In order to inherit something from a person, you must not be unworthy. The following unworthy persons are excluded from the succession:
- those ones, who killed or tried to kill voluntarily the testator, his/her spouse, descendant or ancestor and only if there does not exist any reason, which excludes the punishability according to the penal code (for example self-defence or an emergency),
- those ones, who committed an act to damnify these persons, for which the penal code declares the punishment. (in particular the killing of the person with his consent and the instigation or assisted suicide),
- those ones, who have denounced one of these persons of a punishable act, which does not exceed an imprisonment of three years, and only if the court declares that the denouncement was a calumny. Or also those ones, who had misinformed against the others in the criminal proceeding and therefore they have been accused,
- those ones, who persuaded with intent or violence the testator to revoke or change the will, or who kept him from making his will,
- those ones, who suppressed, concealed or falsified the will, where the succession was defined or who capitalised on a falsified will.
The unworthy person could be accepted for the succession, if it is declared in the will or because of public acts in his life.
The acquisition of the inheritance
The person becomes the inheritor with the acquisition of the inheritance and receives all the rights and duties, which are connected with the inheritance. It will be acquired with a retroactive effect, which means with the actually effect of the testator's death. This moment will be defined as the time where the proceeding of the succession begins.
The forms of the acceptance of the inheritance
- expressly:
The interested person accept the title of the inheritor or the acquisition of the inheritance in a written declaration (e.g. in a contract, in the testamentary contract or in a notarial declaration). - tacit:
The inheritor completes the acts, which are necessary to accept the inheritance and where only this person has the rights to finish the proceedings, e.g. appropriation and disposition of the property or the promotion of an act, which is entitled to the inheritor. - The donation, the sale or the cession of the inheritance rights, as well as the renunciation of these rights and considerations also in favour of a third party must always be decided by the inheritor himself, without the necessity to control his will.
The acceptance of the inheritance cannot be bound up with conditions or limits and it is furthermore irrevocable. It is also not possible to accept an inheritance only partially.
The acceptance in the presence of the testator's debts:
The acceptance provoke a fusion of the inheritance with the own property of the inheritor, which means that the same person answers for possible debts of the testator also with his private means.
If the exact amount of the debts are not known, the risk of the obligatory surety also with the private means could be excluded with the "acceptance with reservation" (a restriction of liability).
With this kind of acceptance the inheritance and the private means rest separated; therefore the debts of the testator have to be paid until the amount of the inheritance.
The acceptance with the restriction of liability will be carried out by a declaration of a notary or a clerk of the court.
The director of a legal entity, as well as the parents or the guardian of a minor are bound to accept the inheritance with the restriction of liability.
The separation of the inheritance and the private means is also for the creditors of the testator, as well as for the legatees advantageous. These ones could request the separation within three months from the death of the testator.
The time limit for the acceptance of the inheritance:
The acceptance of the inheritance has to be carried out within 10 years from the death of the testator.
Each person with a commercial interest could ask at the court, if a shorter time limit for the acceptance of inheritance was determined for the intended inheritors. If this limit is exhausted, the right of the acceptance of inheritance extinguishes also.
An exception exists for the acceptance with restriction of liability, if the intended inheritor owns the inheritance. In this case the inventory (that is the separation of the testator's possession and those goods, which are already owned by the inheritor) has to be made within three months from the death of the testator. The acceptance of the inheritance has to be carried out within the following 40 days.
The renunciation of inheritance rights
The renunciation of inheritance rights could be carried out within the same time limit, how it is intended for the acceptance of the inheritance.
The renunciation will be carried out by a declaration of a notary or a clerk of the court. Who renounces the inheritance, will be considered, as he would not have been never intended. With the renunciation of the inheritance rights the inheritor can liberate himself from the responsibility regarding the debts.
The renunciation can only be revoked, if the time limit for the acceptance of the inheritance has not been exhausted yet and nobody of the other inheritors have accepted the inheritance in the meantime.
Acquisition of the legacy:
For the acquisition of the legacy is no acceptance necessary, because usually a risk concerning the asset will not be involved. The legacy will be acquired because of the rights and can always be demanded by the inheritors.
Each person with a direct interest can ask at the court, if there was determined a time limit, in which the legatee has to declare the renunciation of the legacy.
The renunciation cannot be bound of conditions or limits.