Up to three notarial documents associated with you in the last six months.
By a will, a testator, or bequeather, can designate to whom their property and obligations are transferred after their death. If at the time of the bequeathers death there is no will nor a succession contract, the estate will be inherited by the Law of Succession Act. 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. A testament would also have to be drawn up if the bequeather wishes to exclude an intestate successor from inheriting.
Freedom of testation is somewhat limited by the succession of compulsory portion, which gives a person who did not inherit in some cases the right to claim for a compulsory portion form the successors. The right to claim a compulsory portion exist where the bequeather has by a will or succession contract disinherited a descendant, his or her parents or spouse who are entitled to succeed in intestacy and with respect to whom the bequeather bears, at the time of his or her death, a maintenance obligation arising from the Family Law Act or a bequeather has reduced their shares of the estate as compared to their shares according to intestate succession. The right to claim a compulsory portion means that the entitled person may claim for a sum of money, which depends on the value of the estate. Compulsory portion is one-half of the value of the share of an estate which a successor would have received in the case of intestate succession if all intestate successors would have accepted the succession.
How to make a will
Testator can make a disposition of his estate in the event of his or her death by drawing up a will or by concluding a succession contract. The Law of Succession Act sets 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. 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.
The language used in drawing up a will should be clear and unambiguous and persons and objects 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.
Notarised will
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 notarially authenticated, the notary provides legal advice to the author of the will, determines their intention, and words it in a legally correct manner.
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 authorised.
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 person who gains benefit from the transaction to be authenticated, the notary’s spouse, a relative of the notary or the notary’s spouse, 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 notarially authorised will may also be a reciprocal will of spouses, which the spouses make jointly and in which they reciprocally nominate one another as his or her successor or make other dispositions of the estate in the event of his or her death. If the spouses have reciprocally nominate one another as sole successor, then in case of death of one of the spouses all of the estate is transferred to the other spouse. In a reciprocal will of spouses, whereby they reciprocally nominate one another as sole successor, the spouses may also designate to whom the estate of the surviving spouse transfers upon his or her death. The surviving spouse who has accepted the succession does not have the right to alter the mutual dispositions made in the reciprocal will of the spouses.
Will that has been deposited with a notary
You may deposit a will that you have made with a notary. The testator has to personally give his testament, which is sealed in an envelope, to the notary and affirm that it is his will. The notary shall prepare a notarial instrument concerning the deposit of the will, which shall be signed by the testator and the notary. A testator may retrieve their will deposited with a notary at any time. Another notarial instrument shall be drawn up in that case.
Domestic will
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 testator 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). A testator shall mark the date and year of making the will. The witnesses have to be notified that they have been invited to witness the making of a will and that the will contains the testator’s testamentary intention. The contents of the will need not be disclosed to the witnesses. Right after the testator, the witnesses shall also sign the will, confirming that the testator signed it on his 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 (ascendant or descendant of the beneficiary, brother or sister of the beneficiary or their descendant), spouse or a relative of the latter is a beneficiary of the will, cannot serve as a witness. The dispositions in the will which are made in violation of the prohibition are void.
Holographic 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 testators signature. Wills without the date and year (and without the possibility to establish the date of making the will in any other manner), the testators signature or which are not handwritten by the testator are void.
When six months have passed from the making of a holographic will and the testator of the will is still alive, the will becomes invalid. Therefore 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 via e-service notify the succession register of its existence.
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.
Notarised wills are deposited with the notary and are registered in the succession register on the next working day after the authentication of the notarial instrument.
A domestic will can be deposited by the testator himself or by someone else. It is possible to register a domestic will in the succession register but it is not mandatory. Upon becoming aware of the death of a testator, a person with whom the testator has deposited his will is required to submit the will promptly to a notary.
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 will are in conflict with the previous will, the other parts of the previous will 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 void.
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- Find a bequeather
- Informing of domestic will
- My wills and succession proceedings related to me
- Notarised documents