Can I exclude someone from inheriting my property? What are the conditions and how to do it? Who are „forced heirs“ in Czech law?
Who is a forced heir and what is a compulsory share?
It is possible to disinherit the „forced heirs“. These are the children of the testator or, if they do not inherit, the children’s children. Forced heirs are entitled to "compulsory share", which is 1/4 of the legal share (for minor heirs it is 3/4). The testator may not shorten the mandatory share for the non-minor heirs – the exception is disinheritance.
However, the compulsory share is not a share of the estate, but only a claim for payment of a sum of money equal to the value of the obligatory share. This claim may be asserted by the forced heir against the called heirs and legatees.
What are the grounds for disinheritance?
Only forced heirs may be disinherited, and then only on legal grounds. Other heirs can be excluded from inheritance on any ground or even by silence of the testament. The grounds for disinheriting forced heirs are i.e. if the heir:
- failed to provide the testator with the necessary assistance in his/her time of need;
- has not shown the genuine interest in the testator that he/she should have shown;
- he has been convicted of a crime committed under circumstances indicating his perverse character;
- has led a permanently disorderly life.
In addition, there are two special grounds for disinheritance, the purpose of which is to protect the testator's family from the adverse consequences of the conduct of the forced heir in the area of property. Statutory grounds for disinheritance are the fact that the forced heir
- is indebted; or
- is acting wastefully,
so that there is a reasonable concern that the forced heir will not even leave the compulsory share for his descendants. The condition may be fulfilled even if the heir is not bankrupt. It is not even required that the heir has already spent a substantial part of his property, as long as he still has a wasteful character. However, the last two grounds for disinheritance are subject to the condition that the testator leaves a compulsory share to the children of his disinherited heir or their children. If, however, the forced heir has no children, he cannot be validly disinherited on these two grounds alone.
What are the most common ways to disinherit a heir?
The most common reason for disinheritance is "not showing genuine interest". But beware! What constitutes "genuine interest" can be tricky. For example: if the heir's lack of interest in the testator is the result of the testator's lack of interest in the heir, then the heir's lack of interest alone cannot be regarded as a ground for disinheritance (Rc 23/1998). On the other hand, where the expression of interest by the heir in the testator consistently exceeds the principles of social decency, it could be regarded as 'not showing genuine interest'.
Another frequent reason of disinheritance is the heir's continued leading of disorderly life. However, if the child’s undirected life as a result of inadequate upbringing by the testator, disinheritance on this ground would not be valid.
How can a testator disinherit someone??
Typically, this can be done by a deed of disinheritance. The same rules apply to the form of this instrument as to the form of the will. A Declaration of Disinheritance can be made, amended or revoked
- by private deed without the need of witnesses – handwritten and signed by the testator;
- by private deed in the presence of two witnesses – it does not have to be handwritten, as long as the testator signs the document by his own hand and the witnesses aring that the instrument contains the disinheritance of the forced heir;
- by a public deed (notarial deed);
- with concessions, if the conditions for this are met (urgency of the situation).
In the Declaration of Disinheritance, the testator must expressly state that he is disinheriting the forced heir, i.e. excluding him from the right to the compulsory share (in whole or in part).
However, the disinheritance may also be made "tacitly and equitably". If, for example, the testator omits a forced heir in the testament, and the omission was made knowingly, and the heir has done something that fulfils the legal ground for disinheritance, which is subsequently proved in contested court proceedings, this is also a valid disinheritance.
Quick tips as conclusion
Similar to testament, Declaration of Disinheritance can only be made by a single person for themselves. Thus, joint declaration by parents disinheriting their wayward son would be invalid.
It is not possible to disinherit someone "as a precaution" for the eventuality of his/her worse behaviour. The reason for the disinheritance must exist at the time the testator makes the Declaration of Disinheritance.
It is not possible to draw up a Declaration of Disinheritance on a computer without witnesses; lack of form would render the disinheritance invalid.
Do you need help with Inheritance planning, Testament or Disinheritance? Do not hesitate to contact us.
