By a will, a testator, or bequeather, can designate to whom their property and obligations are transferred after their death. If a bequeather is obligated by law to maintain their spouse, child, or parent (in cases where the spouse is incapacitated for work, for example), the bequeather cannot deprive the dependant relative of their estate by will. In such cases, the dependant relative succeeds to the estate in accordance with the Law of Succession Act. In such cases, the share of estate stipulated by law cannot be reduced by the will.
People who are at least 15 years of age have the right to make a will; all people under the age of 18 must have their will notarially certified. A will should be made if there is an intention to leave a bequest to a person (or persons) who would, by means of intestate succession, inherit nothing or less than what the bequeather wants to leave them.
Spouses have the opportunity to make a mutual will at a notary’s office by naming each other as their successors. That means that should one of the spouses die, their entire estate is transferred to the living spouse. The spouse who lives longer cannot change any dispositions in the will after the acceptance of the succession on the basis of the reciprocal will. In such a will, the person who will receive the estate after the death of the spouse who lives longer can also be designated.
How to make a will
The Law of Succession Act sets very strict formal requirements for a will. If these are not followed when the will is made, the will is considered invalid and succession proceeds pursuant to law.
The language used must be clear and unambiguous. Persons and objects should be described in a manner that leaves no doubt as to who and what has been meant. Ambiguities and incomprehensible orders in a will are interpreted in a manner prescribed by law, or ignored.
Succession can be tied to specific terms in a will. In that case, the person who has been named as the successor can succeed to the estate either before or after the set terms are met. If the will concerns only a part of the bequeather’s assets and no succession contract has been entered into with regard to the rest of the assets, the assets not covered by the will are inherited in the manner prescribed by the Law of Succession Act.
Formal requirements of a will
It must be indicated on the will that it constitutes a will (title “Will”). A will must include the following:
- the name, date of birth, and place of residence of the author of the will;
- the names and dates of birth of the successors;
- the preparation date and year of the will;
- the testator’s (and witnesses’) signature;
- the names and places of residence of the witnesses (if there are witnesses).
The specific requirements depend on whether you make a notarial or domestic will.
Where to keep a will
A will should be kept so that it could be found as soon as possible after the death of the author of the will. A will may be:
- deposited with a notary;
- stored at home or deposited with an acquaintance or a person close to the author of the will.
If you keep your will at home or know that a person close to you keeps their will at home, you can notify the succession register of its existence. The last will and testament of the bequeather is thus kept from being lost, as it will be known where to look for the will based on the respective entry in the succession registry.
A notarised will shall be valid for an unspecified term. A notarised will is:
- a will that has been certified by a notary; or
- a will that has been deposited with a notary.
It is recommended that you formalise your will at a notary’s office. When a will is certified, the notary provides legal advice to the author of the will, determines their intention, and words it in a legally correct manner. This way, you can be sure that the will is valid.
A notarially certified will may also be a reciprocal will of spouses, which is a joint testamentary intention of spouses, in which they name each other as their successors.
Will that has been deposited with a notary
You may deposit a will that you have made with a notary. Such a will must be signed with the notary present, and it must be handed over to the notary in a closed envelope. A special legal instrument is drawn up by the notary upon handing over the will, and it is signed by the author of the will and the notary. A testator may retrieve their will deposited with a notary at any time. Another legal instrument shall be drawn up in that case. If the author of the will has a good reason (illness, physical disability, etc.) for not being able to sign the will on their own, another person (who must not be the notary, a person related to them, the notary’s spouse, a relative of the latter, or an employee of the notary’s office) may do so on their behalf. Naturally, the notary and the author of the will must be present during such signing.
A domestic will becomes invalid if six months have passed from the date of its making and the testator (bequeather) is alive at the time. A domestic will is:
- a will that is written and signed in the presence of witnesses, or
- a holographic will.
A will that is made in the presence of witnesses must be signed by the author of the will in the simultaneous presence of at least two witnesses with active legal capacity (at least 18 years of age and in good mental health). The contents of the will need not be disclosed to the witnesses. Right after the author of the will, the witnesses shall also sign the will, confirming that the author of the will signed it on their own on that particular date and that they judge them to have active legal capacity and the capacity to exercise will.
A person who is a beneficiary of the will, or whose relative, spouse or a relative of the latter is a beneficiary of the will, cannot serve as a witness. In such a case, they would lose the right to succession on the basis of that will.
A will can also be made on one’s own by writing it from start to finish in one’s own handwriting and equipping it with the date and year when the will was made, as well as the author’s signature. Wills without the date and year and the author’s signature are invalid from the start.
When six months have passed from the making of a holographic will and the author of the will is still alive, the will expires. A new will must be made. A holographic will is the riskiest type of will from the perspective of implementing the testator’s will, as the making of such a will may remain a secret. If you keep your will at home or know that a person close to you keeps their will at home, you can notify the succession register of its existence.
Revoking a will
A will can be revoked by means of a succession contract, a new will, or (in the case of a domestic will) its destruction. If only some parts of the new will are in conflict with the old will, the other parts of the old shall remain valid. A will can also be voided by court after the death of the author of the will on bases provided by law.
If the formal requirements for wills are not followed when a will is made, the will is deemed invalid.
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