Kosovo
Successions in Kosovo
Planning
1 - How can I pass on my assets while I am still alive?
In accordance with Article 58 of the Law on Inheritance in Kosovo (Law No. 26/2004) (“the Law on Inheritance”), a person may transfer his property to, and divide his property among, his descendants by means of a legal transaction inter vivos. Any such transfer and division of property will only be valid if all the descendants of the transferor who would be his legal heirs at the time the transfer is made agree to it. The transfer and division agreement must be made in writing and certified by a judge. Upon verification, the judge will read out the contract and explain its consequences to the parties. If a descendant does not give his consent at that time, he can give it later, in the same form.
2 - Can I retain some rights associated with the assets I give away? Can I reserve a right of recovery?
Upon transfer and division, the transferor may retain a right of usufruct in all the assets he transfers, or in some of them, or contract a lifetime annuity in money or in kind, or obtain a right to lifetime maintenance for his own benefit, or for that of his spouse or for both, or for the benefit of a third party. The transferor also has the right to require the descendants to return what they have received through transfer and division if that descendant has shown gross ingratitude. If recovery in rem is not possible, the descendants must make good the value according to the legal provisions on the return of unjust enrichments.
3 - How can I ensure my children are treated equally?
Any such transfer and division of property will only be valid if all the descendants of the transferor who would be his legal heirs at the time the transfer is made agree to it. The transfer and division agreement must be made in writing and certified by a judge. Upon verification, the judge will read out the contract and explain its consequences to the parties. If a descendant does not give his consent at that time, he can give it later, in the same form.
The transfer and division will remain valid if a descendant who did not give his consent at the time of the agreement later predeceases the transferor without himself leaving any descendants of his own, or if such descendant renounces his right to inherit, or is deemed ‘unworthy’.
4 - Can I help one of my children without this reducing his/her share in the inheritance?
Yes, this can be done by donation or by will.
5 - Can I influence the effects the donation will have on the succession?
Donations can be considered as a legacy. In practice, however, we have not encountered any instance where a person had given a donation that would affect the size of the deceased’s estate and thus adversely affect the rights of his heirs. If this happens, it would prejudice the reserved portion to which the heir is legally entitled: the fact that a donation and a will are subject to different legal rules must be taken into account.
6 - Can I give my assets directly to my grandchildren?
Yes, you can give your assets to your grandchildren by way of lifetime gift or by will, provided that this does not affect the rights of your compulsory heirs.
7 - How can I protect my spouse or partner?
The spouse is protected by law to the extent that he or she is treated, prima facie, equally with the children or the parents. The rights of the spouse may also be affected by a marital agreement, which must be drafted by a notary, and may set out the matrimonial property regime including separation of assets between the spouses. However, if there is such a contract, the spouse still enjoys half the property acquired during the marriage (with the exception of assets acquired by way of inter vivos gift or inheritance).
8 - Can my children renounce the inheritance in advance?
No; in accordance with Article 134 of the Law on Inheritance, a renunciation of a succession that has not already been opened has no legal effect.
Preparation
1 - How do I draw up my will?
An individual who wishes to draw up a will must follow certain formalities. Τhe Law on Inheritance allows for the following types of will:
- HOLOGRAPHIC WILL – A will shall valid if it has been written, dated and signed by the testator with his own hand, or been marked with his fingerprint. The date shall mention the day, the month, and the year. The signature must contain the last name of the testator and at least one first name, and be placed at the end of the will.
- A WRITTEN WILL IN THE PRESENCE OF WITNESSES – A literate testator may make a will by signing the document, even if he did not write it himself, in the presence of two witnesses, declaring before them that it is his will. The witnesses will sign the will themselves, and it is appropriate to note on the will that they are signing as witnesses.
- A WILL MADE IN COURT
- If the testator is literate – A will may, at the testator’s request, be drafted by a competent court judge, who shall verify the testator’s identity prior to doing so. The judge will read over the written will to the testator and then inform him of its legal consequences. After the testator has read and signed the will, the judge shall then note on the will itself that the testator has read and signed it in his presence.
- If the testator is illiterate – If the testator cannot read the will drafted by a judge, the latter shall read it out to him in the presence of two witnesses. The testator will then, in the presence of the same witnesses, sign the will or mark his fingerprint on it, after having declared that it is his will. The witnesses then sign the will. The judge will confirm in the court records that all these procedures have been followed. These records should be signed by the testator, the witnesses, and the judge.
- A WILL MADE IN EXCEPTIONAL CIRCUMSTANCES – A testator may declare his last will orally before two witnesses, only if, due to exceptional circumstances, it is not possible to make a written testament.
2 - How can I be sure it will be applied?
Currently, there is no register for the identification of wills. The creation of a new Register of Wills is planned, under the new draft laws on Notaries and Inheritance; this register will be kept by the Notarial Chamber. The register will identify all wills that are made. Notaries will then be obliged to consult this register to determine whether a deceased person left a will in any notarial office before starting legal inheritance proceedings.
3 - How can I find a will that has been filed with a notary?
In the absence of a general wills register, wills are currently recorded in a register of persons who have deposited items for disposal in case of death held by each notarial office; however, it is expected that, when the general register of wills is created by the new laws, any interested citizen will be able easily to find out if their relatives have left a will by enquiring at any notary’s offices.
4 - Which law can I choose?
Under article 147, the Law on Inheritance applies in respect of all persons who reside in Kosovo at the time of their death, irrespective of the place of death and of the location of their property.
However, persons defined in paragraph 1 who are not domiciled in Kosovo may elect, in their will, for the succession law of the country in which they are domiciled to apply instead.
The inheritance of other persons is governed by the laws of the country of which the deceased person was a citizen at the time of his death.
If under the law of another country, the succession procedures of a Kosovo citizen who dies there would be subject to the law of that country, then the succession procedures of citizens of that country who die in Kosovo will be subject to the Kosovo Law on Inheritance.
5 - Can I favour a particular heir? Are there any restrictions?
A special heir may be named in a will. However, under the regime of compulsory inheritance, some heirs, including spouses, children and parents, will inherit a portion of a deceased person’s estate regardless of the provisions of his will.
6 - How can I favour my spouse or partner?
A spouse may be favoured in the drawing-up of a will, but the compulsory inheritance provisions must be taken into account. You can also enter into a marriage contract (which needs to be drafted by a notary) in which the matrimonial property and its division between you and your spouse is specified. For further advice, you should consult a notary.
7 - Can I disinherit someone?
A testator who would like to exclude any of his heirs should state this clearly and give reasons for this exclusion. The cause of the exclusion should be current at the time of the drafting of the will.
8 - Can I make my last will jointly with someone else?
No.
Inheriting
1 - How are intestate successions regulated by law?
According to the Law on Inheritance, if the deceased person has not made a will, the heirs of the first degree (namely, their spouse and children) inherit equal shares of his assets. If there is no heir of the first degree, the property is inherited by the deceased’s heirs of the second degree, and so on.
2 - Are there particular regulations for specific objects?
Household chattels that are used for fulfilling the daily needs of the surviving spouse, or other heirs who live in the same house, such as furniture, equipment, etc., shall pass to the surviving spouse and descendants of the deceased, unless these items are of substantial value. Household chattels devolving in this manner shall not be counted towards the reserved portion, nor shall they be counted towards an heir’s share of the inheritance estate.
Such persons shall obtain joint ownership in equal shares of the household chattels so devolved.
Such persons shall obtain joint ownership in equal shares of the household chattels so devolved.
3 - How can I find out if succession procedures have already been initiated?
Such information can be obtained through the Administration of the Notarial Chamber, which will, upon receiving a request from a client, contact the relevant notary’s office for such information.
4 - How can the heirs of the deceased be identified?
Heirs must prove their right to inherit. Identification in the first instance is made by way of the Death Certificate issued by the competent municipal body, in which the names of the deceased’s heirs are listed; this document is the basis for the opening of the succession procedures.
5 - How can I prove that I am the heir?
You can prove you are an heir by submitting a relevant document (e.g. birth certificate, marriage certificate, or family certificate, in which all the family members of the deceased are listed).
6 - Are there priority heirs? Is there a reserved portion for certain people?
Part One of the Law on Inheritance, concerning heirs, provides that the spouse and children inherit in equal shares. If one of the children has died before the deceased, that child is substituted by his/her own children; if, for reasons provided by law, the descendants cannot be heirs, the descendants enter their inheritance without limitation. The Law on Inheritance recognises compulsory heirs such as the deceased’s descendants, his adoptive children and their descendants, and his spouse; such heirs are entitled to a portion of the estate, which the deceased cannot dispose of. This is known as the reserved portion.
7 - Do I inherit the debts? What happens when there are minor children among the heirs?
The heirs are liable for the debts encumbering the inheritance, in proportion to and up to the amount of their share of the estate. Debts encumbering the inheritance are those secured on the property which is inherited, the personal debts of the deceased, the cost of the funeral, and expenses incurred in connection with safeguarding and administering the estate until it is distributed.
8 - Can the surviving spouse inherit?
Yes, the surviving spouse inherits as an heir of the first degree, in equal shares with the children of the deceased.
9 - How are the inventory and valuation of the deceased’s assets carried out?
The value of the estate, which is used as the basis for calculating the reserved portion, is calculated as follows: first, all the assets the deceased had at the moment of his death are inventoried and valued, including all testamentary dispositions in his favour, and all debts that are owed to him, including those owed by one of his heirs, but excluding those debts which are obviously not recoverable. The deceased’s liabilities, the cost of drawing up the inventory and valuation of the estate, and the funeral expenses are then subtracted from the value of the estate as so calculated.
10 - What are my obligations if I accept an inheritance?
In accordance with the Law on Inheritance, a declaration of acceptance of inheritance may not be revoked. However, an heir who has made such a statement may annul it, if such statement was issued under threat, or actual violence, or due to fraud or error.
11 - Is it possible to renounce an inheritance or accept it under benefit of inventory?
Yes, an heir can renounce his inheritance by a statement made before a notary up until completion of the succession procedures. He may also accept his share for the benefit of the other heirs.
12 - How do we administer and divide up the assets if there is more than one heir?
The division of an inheritance may be requested by any heir at any reasonable time. This right cannot be waived: any contract whereby an heir renounces his right to request division, and any provision of a will which bans or restricts that right, is null and void.
The estate must be administered and disposed of jointly by the heirs up to the moment of its division. If there is no executor, and the heirs do not agree on the administration of the inheritance, the court, upon the request of one of the heirs, shall appoint an administrator, who shall administer the property on behalf of all the heirs. Alternatively, the court may assign a share of the estate to be administered to each heir. The court may also appoint one of the heirs as administrator. The administrator may, with the permission of the court, effect disposals of assets forming part of the estate if this is authorised in the will, or if this is necessary to pay expenses, or to avoid loss.
Paying inheritance tax
1 - How are succession duties calculated? What is the tax rate for succession duties? / Do tax regulations provide for a threshold below which no tax is payable?
- For the children?
- For the spouse?
- For someone not directly related to the deceased?
- Other?
When is the tax due?
Notary fees for succession procedures are fixed on the basis of the Administrative Order on Provisional Notary fees, whereby the amount of this fee is based on the total value of the estate, which is the subject of the procedures.