The death of a loved one brings, besides grief, a series of legal questions that tolerate no delay: who inherits, what happens with the property and the debts, how the procedure unfolds. Clear answers at the right moment prevent something even harder than the procedure itself: family disputes that last for years.
How does the probate procedure unfold?
The probate procedure is as a rule conducted by a notary public, acting as a commissioner of the court, according to the last residence of the deceased. At the hearing, the composition of the estate is established (real estate, vehicles, bank accounts, shares in companies), the circle of heirs and their shares, and the procedure ends with a decision on inheritance which serves as the basis for transferring the property. If the facts or the rights are disputed among the heirs, the notary refers them to litigation before the court.
Who inherits by law?
When there is no will, inheritance follows the legal orders of succession. In the first order, the children and the spouse inherit in equal shares. If there are no descendants, the second order follows: the spouse together with the parents of the deceased, and so on. An extramarital union and adopted children have rights equal to marital ones under the conditions provided by law.
A will: why it pays to think in time
With a will, the testator personally determines who receives what, instead of leaving that to the law. The most commonly used are the holographic will and the court, that is notarial, will, which offers the greatest legal certainty. One limitation always exists: the forced share. The closest heirs are entitled to a portion of the estate that cannot be taken away from them by will, except in strictly defined legal cases.
Debts are inherited too
The heir takes over not only the rights but also the debts of the deceased, though only up to the value of the inherited property. When there is a suspicion that the debts exceed the value of the estate, the heir may renounce the inheritance with a statement in the procedure. This is a decision that requires prior analysis: the renunciation is irrevocable.
Common complications from practice
- Unregistered property: a house or land still registered in the name of a grandfather or a more distant ancestor requires prior clearing of ownership
- Heirs abroad: participation through an attorney-in-fact is entirely possible, without travelling to the country
- Overlooked estate assets: additionally discovered property requires a supplementary decision
- Lifetime gifts: gifts given to individual heirs can affect the calculation of the shares
Practical advice
- Gather the documents early: death certificate, title deeds, vehicle registration certificates, bank statements
- Do not dispose of the property before the decision on inheritance
- With a larger estate or complex family relations, come for a consultation before the first hearing, not after it
A probate procedure ahead of you?
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This text is general legal information and does not constitute legal advice for a specific case. For advice tailored to your situation, consult an attorney.