Q & A

We assume that the competent Slovak court has decided that, taking into account all circumstances of the concerned case, your mother had her habitual residence in Slovakia that was also considered as the centre of interests of her family and her social life.

Therefore, this succession proceeding will be subject to Slovak law. In this respect please note that the entire inheritance, i. e. all assets forming part thereof should be subject to Slovak law, regardless of the nature of the assets and regardless of whether they are located in another EU member state or in a third country.

To answer your question concerning the statutory share of the descendant, we would like to draw your attention to the provision of the Section 479 of the Slovak Civil Code according to which minor descendants obtain at least as much as their statutory share and adult descendants obtain at least one half of their statutory share. If the will of the deceased violates this provision, it is invalid only in such a part (unless these descendants were disinherited).

In case of statutory succession, the inheritance is inherited in four groups, whereby children of the deceased inherit in the first group together with the spouse of the deceased and each with an equal share. Moreover, if any of the children are not to inherit, their share shall in the first group be equally divided among their children. If such children or some of them are not to inherit, their descendants shall inherit in equal shares.

In accordance with the provision of the Section 484 of the Slovak Civil Code, the share of a statutory heir shall include what he/she obtained from the deceased person free of charge during the deceased person’s life.

In case of statutory succession, such inclusion shall be done by the court automatically if there are at least two heirs and as soon as the court becomes aware of this. Such gifts must, however, be those which exceed the scope of a normal gift (so-called extraordinary gifts, not e.g. ordinary Christmas or birthday gifts).

Where testamentary succession is concerned, such inclusion shall take place if the testator so ordered or if the heir who received other gifts would have an unreasonable advantage over the forced heir. It should be emphasized that the burden of proof is borne by the person requesting the inclusion.

All citizens of the European Union should remember that as of August 17, 2015 a new system of the succession proceedings with a foreign element is applied in all EU member states. This new system was introduced by the Regulation (EU) No. 650/2012 of the European Parliament and of the Council of July 4, 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a
European Certificate of Succession (hereinafter referred to as the “Regulation”). The Regulation provides that the courts of the member state in which the deceased person had his/her habitual residence at the time of his/her death shall have jurisdiction in matters of succession in respect of the entire inheritance.

We are assuming that the father of your son did, during his life, not choose law that should govern his succession and that the German law was not the applicable law in the matter of the concerned succession. In this case, the Slovak court or notary will have jurisdiction to rule on the concerned succession. Please note that in Slovakia the competent notary is appointed by the court as a court commissioner in the succession proceeding and the notary is consequently entitled to decide on the matter in question. The decisions issued by the notary and the actions performed by them are considered as the decisions of the Slovak court of the first instance.

If, in the concerned case, the notary has already been appointed, it is necessary to find out by inspection of the files at what stage the present proceedings are. It is, therefore, advisable to find a lawyer who will be able to give you relevant advice based on the information obtained and represent you in the concerned succession proceeding.

When answering your question, we are assuming that Slovak law is applicable to the concerned case. Please note that the disinheritance is regulated in the Section 469a of the Slovak Civil Code. Provided that the reasons established by the law are fulfilled, it is possible to disinherit both the statutory heir (deceased’s descendant) as well as the descendants of the disinherited heir, however only if this is explicitly stated in the deceased person’s deed of disinheritance.

One can either draw up the deed of disinheritance by hand or draw it up in another written form in the presence of witnesses or in the form of a notarial record; he/she may also include a disinheritance in his/her testament and thus exclude his/her descendants from the inheritance.

Please note that the deceased may disinherit a descendant only if some of the below conditions are met:
a) the descendant, acting contrary to good morals, did not provide the deceased with necessary assistance in disease, old age or other serious events;
b) the descendant permanently fails to demonstrate a genuine concern about the deceased as a descendant should;
c) the descendant was convicted of an intentional criminal offence and was given a prison sentence lasting at least one year;
d) the descendant permanently leads a rampant lifestyle.

If the disinherited heir believes that the statutory conditions for the disinheritance have not been met, he/she may bring an action against the disinheritance and claim its invalidity.

According to the Section 192 of Act No. 161/2015 Coll. of the Slovak Code of Civil Procedure for Matters of Voluntary Jurisdiction, it applies that if, before the confirmation of the succession, someone claims to be the heir and denies the right to the inheritance of the other heir who has not rejected the inheritance, then this situation is considered to be a dispute about the right to the succession.

In your case, it is, therefore, necessary to carefully review the testament/deed of disinheritance and the validity thereof and determine whether the disinheritance in question cannot be considered as invalid and if yes, then consider whether you wish to file an action for the invalidity of such disinheritance.

Please note that if your husband had his habitual residence in Slovakia, the succession proceeding shall be conducted according to Slovak law and before a Slovak notary. However, this assumption does not apply in case the deceased chose, during his life, other law as the law under which his succession should be governed.

Please note that the right to choose law is expressly stated in the Regulation (EU) No. 650/2012 of the European Parliament and Council of July 4, 2012 (hereinafter referred to as the ”Regulation”). According to the Regulation, person is allowed to choose the applicable law under which his/her succession should be governed, whereby he/she may choose the law of the country whose nationality he/she possesses at the time of making such choice of law or at the time of his/her death. The substantive validity of the act by which the choice is made shall be governed by the chosen law.

With respect to the above, in the concerned case it needs to be examined whether your husband has made the choice of law and if yes, what law has he chosen and whether such choice was valid. If no choice of law was made and we can assume that you husband had, at the time of his death, his habitual residence in Slovakia, the Slovak court must appoint a notary public who will handle this succession procedure.

As far as your question regarding the termination of the lease contract is concerned, please note that the general rule is that the lease is not automatically terminated upon the death of the tenant, but all rights and obligations are transferred to his/her heirs. There is one exception to this rule, namely if the lease of business premises is concerned and the tenant was a physical person. In this case, the lease ends automatically upon the death of the tenant, unless the heirs of the tenant inform the landlord within 30 days of his death that they will continue to lease the premises.

The question of disinheritance is regulated in the Section 469a of the Slovak Civil Code. Provided that the reasons for disinheritance set forth by law are fulfilled, it is possible to disinherit both the statutory heir (the deceased’s descendant) as well as the descendants of the disinherited heir, however only if this is explicitly stated in the deceased person’s deed of disinheritance.

One can either draw up the deed of disinheritance by hand or draw it up in another written form in the presence of witnesses or in the form of a notarial record; he/she may also include a disinheritance in his testament and thus exclude his/her descendants from the inheritance.

A reason for disinheritance must be expressly stated in the deed and the facts that led the person to applying a specific reason for disinheritance must be clearly explained. The same applies to the designation of the person to be disinherited.

As already stated above, a person can only disinherit his/her descendant if there is a legal reason for doing so, whereby this reason must already exist at the time of disinheritance.

Please note that the deceased may disinherit a descendant only if some of the below conditions are met:

1. a) the descendant, acting contrary to good morals, did not provide the deceased with necessary assistance in disease, old age or other serious events;
   b) the descendant permanently fails to demonstrate a genuine concern about the deceased as a descendant should;
   c) the descendant was convicted of an intentional criminal offence and was given a prison sentence lasting at least one year;
   d) the descendant permanently leads a rampant lifestyle.

It is also to be noted that extension of these reasons is inadmissible and disinheritance on grounds other than the ones stated above would be invalid.

In order to answer your question, we should look more closely at the provision of the Section 470 of the Slovak Civil Code. According to this provision, an heir is liable for the reasonable costs connected with the funeral of the deceased and for the deceased’s debts that passed to the heir upon the death of the deceased, only up to the amount of the value of the acquired inheritance. If there are several heirs, they shall be liable for the cost of the deceased’s funeral and for the debts in proportion to their share of the inheritance to the entire inheritance.

Please also note that if the inheritance is insolvent, the heirs may agree with the creditors that the inheritance shall be surrendered to the creditors to settle the debts. The court shall approve the agreement provided that it is not inconsistent with the law or good morals.

If no agreement is reached between the heirs and the creditors, the obligation of the heirs to settle the debts shall be governed by the provisions of the Slovak Civil Non-Dispute Procedure that govern the liquidation of an inheritance.

The provision of § 460 of the Slovak Civil Code states that the inheritance is acquired upon the death of the deceased. The principle of universal succession applies to the transfer of the inheritance, which is the entry of the heir into all rights and obligations of the deceased. The inheritance is understood to be the property rights and obligations of the deceased, including his debts. Slovak law distinguishes both statutory as well as testamentary succession or even a combination of both, with the testamentary succession taking precedence over the statutory succession.

Where statutory succession is concerned, the children and the spouse of the deceased shall inherit in the first group and each with an equal share. In case the marriage has lasted until the death of the deceased, the tenancy in common of the spouses is settled first and the remaining half is inherited equally between the remaining spouse and the children.

According to the provision of the Section 579 (2) of the Slovak Civil Code, an obligation shall not cease to exist upon the death of the debtor, unless the content of the obligation is a performance that was to be personally provided by the debtor. A right to compensation for personal injury and for diminished social functioning shall also cease to exist.

With respect to the above please note that personal obligations as well as personal rights, including right for compensation for personal injury and for diminished social functioning are not inheritable (even if the deceased’s right to compensation for personal injury and for diminished social functioning was recognized by a valid court decision).

The handwritten will must be written and signed by the testator by hand, otherwise it is invalid. No witnesses are required, and the testator’s signature does not have to be officially certified. The will must identify the testator, the heir and the subject of the inheritance. When drawing up the testament, the will of the testator must be given and the will must therefore be free, serious and certain.

As far as the formal aspects of the testament are concerned, the law requires, as already mentioned above, the written form. It is equally important to state in the will when (day, month and year) it was signed. The signature must be at the end of the text. In this context, it should be added that the will cannot be drawn up by a representative of the testator. Also please bear in mind that a later will cancels the earlier one and that any conditions attached to the will have no legal effect.