At one point in our lives we have to deal with inheritance issues. It can be that we have to deal with inheritance issues of our family members or it can be that we have to deal with our own inheritance. What are these inheritance issues exactly and to what do they apply?
An inheritance is the estate of a person deceased, and it devolves either by the disposition of man or, in the absence of any such disposition, by operation of law (intestate succession). The estate of a person includes not only money or immovable property, but also debts, titles, rights and obligation. Many people prefer to decide for themselves the way their estate will be disposed of when they pass away. The common practice is for a person to do a public will or testament in order to regulate his estate. The team of Sultana Legal can explain what the various terms mean and assist you with making the right choices in the sometimes sensitive matters.
A will or testament is a legal declaration by which a person, the testator, provides for the transfer of his/her estate at death. A will may contain dispositions by universal title and dispositions by singular titles. A disposition by universal title is that by which testator bequeaths to one or more persons the whole of his property or a portion thereof and he nominated his Heirs. All other dispositions are called by singular title and the person receiving by singular title is called a Legatee.
There are two kind of wills, they may be either public or they are secret wills. A public will must always be received by a notary public in the presence of two witnesses and enrolled in the Public Registry. A public will’s contents remain secret until the death of the person who made the will. A person may also choose to draw up a will himself. This will takes the form of a secret will. In such case there are certain specific requirements and procedures to be followed by the person drawing up his own secret will. A secret will is deposited in the Court Registry and may only be opened after the testator’s death and by the authorization of the Court in the presence of all interested parties who are notified by means of a court notice. During one’s lifetime, third parties have no means of knowing that a secret will has been made. The contents of a secret will may even be kept hidden from the notary and the witnesses.
Married couples may choose to do an unica charta (joint) will. This will is drawn up in one instrument. Third parties may know that an individual has made a public will even during the latter’s lifetime by effecting testamentary searches in the Public Registry of Malta. All is needed are details of the person who made or could have made the will. In the case of a secret will the case is different. The testamentary searches are carried out in the Civil Court and a death certificate of the deceased person is required in order to effect the search.
However, a person may die without having drawn up a will – this is called intestate succession. In this case, the person’s estate will devolve upon his heirs-at-law according the laws of the intestate succession. The law recognises certain family members as being the next of kin entitled to inherit the deceased’s property.
Persons claiming to be the Heirs at law (in the case of intestate succession) of a deceased person need to file a court application (rikors) before the Civil Court (Voluntary Jurisdiction Section) whereby they demand the opening of succession in their favour. A notice of this application is published in the Malta Government Gazette and in at least one commercial newspaper. This will enable anyone who has a claim to that succession to come forward in the period indicated in this notice. Following this, a Court decree will be issued declaring the succession open in favour of the heirs-at-law.
With a considerable number of people residing abroad and consequently becoming owners of assets abroad, many inheritance issues and disputes arise. The disposition of all assets situated abroad are to be settled using the system of Probate. The definition of Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will or testament. A surrogate court decides the validity of a testator’s will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.
For further information please contact the team of Sultana Legal. We can give you a detailed advise with consideration of your personal situation.