Sucesiones en Serbia

During the lifetime a person may transfer the property onto another person by entering into an agreement on the transfer and allocation of property during lifetime, as well as by a contract on lifelong support (except that in this case the effect of the contract is postponed until the moment of death of the support recipient – when the assets of the support recipient shall be transferred onto the support donor, except that here there is also a possibility that the transfer of assets is completed even prior to the time of death of the support recipient, the so-called un-real lifelong support agreement (which is in Serbia, known under the name »agreement on the support until death»)). Assets can be transferred also by entering into a contract on gift with the constitution of the rights to life usufruct or residence (depending on what the subject of the contract on gift is) in favour of the donor.

When entering into an agreement on a gift or agreement on the assignment and distribution of assets during his lifetime, the donor, i.e. the assignor, can on his own behalf cover some personal (right on usufruct, occupancy or residence) or real servitude (e.g., the right of passage, the obligation not to make his own house higher or lower, the obligation not to block the light or air to the neighbouring building …).

The first inheritance order, according to the Inheritance Law of the Republic of Serbia, includes the spouse and descendants of the testator, so that the children are in equal position in relation to the estate of the testator, regardless of whether it is a marital, extra-marital or adopted child of the testator (adoptees from complete adoption). The court, i.e. the notary public entrusted with the execution of the inheritance proceeding, determines the round of legal heirs on the basis of statements issued by the heirs, and shall in particular indicate to them that they are issuing their statements under full criminal and material liability, and that the possible concealment of legal heirs constitutes a criminal act of giving false testimony that is prosecuted ex officio, so that the court, i.e.

the public notary is the one who takes care that all heirs that belong to the round of legal heirs are mutually in an equal standing.



Here we have a deviation in the situation where there is a testator’s child, when the spouse is not a parent, and the spouse’s property is greater than that which would belong to him/her when dividing the estate into equal parts, then each testator’s child can inherit up to two times more than the spouse, if the court, having considered all circumstances, finds this to be justified.

If during his lifetime the testator has made a gift to any of the descendants, the other heirs may request that such gift is included in the part of the inheritance of that descendant, unless the testator has at the time of the gift or thereafter, or in his last will and testament, declared, or from the circumstances it can be concluded that this was the intention of the testator, for the gift to be excluded. This does not affect the rules on the mandatory share, as provided for in the provision of Article 67 of the Law on Inheritance.

If during lifetime the testator has made a gift to some of the descendants, the remaining heirs may seek to include the gift into the inheritance part of that descendant, unless the testator at the time of the gift or later, or in his last will and testament, has declared that the gift shall not be included, or if from the circumstances can be concluded that this was the intention of the testator.

The testator may also dispose of his estate by means of a last will and testament (in which case, the inheritance order changes) or by delivery (legacy) and in this way he can bequeath his estate to his grandchildren, and not to his children. In the same way, he can bequeath his estate to the benefit of his spouse, and any other person.

The provision of Article 218 of the Law on Inheritance stipulates that the renunciation of inheritance that has not been opened is nil and void

A testator can dispose of his property also by means of last will and testament, in which case he may change the legal order of inheritance, whereby testators have at their disposal several forms of last wills and testaments depending on the circumstances under which the testaments are constituted, and so it is common that testators dispose of their assets with handwritten testaments (holographic will), written testaments before witnesses (holographic will), judicial testaments and notary public testaments, whereby consular testaments, international testaments, marine testaments, military testaments and verbal testaments represent exceptional forms testaments, whereby it should be noted that the form of testament is an essential condition for its validity, and that a deviation from the form prescribed by law is not allowed for testaments and therefore, a testament which was not made in one of the legally prescribed forms shall be nil and void.

In his last will and testament the testator may designate one or more testament executors, wherein the testament executor may be any person who is fully legally competent. In a situation when the last will and testament has failed to define the testament executor or if he has rejected to accept the duty, the executor may be appointed by the court if it deems it necessary, especially if the testator has determined tasks, conditions or deadlines. If the testator has not determined anything specific, it is the duty of the testament executor in particular to ensure the preservation of the estate, to manage it, to take care of debt payments and deliveries and generally to ensure that the testament is executed as the testator has wanted it.

By letter sent to the chamber of public notaries, actively legitimated persons may find out whether the testator has drafted a last will and testament with a notary.

According to the Inheritance Law – Articles 206 through 236, following the death of a person, his inheritance is opened. The same effect has the proclamation of a person for dead, and the law that was valid at the moment of death of the testator is applicable, so there is no possibility of choosing the law, because it is an imperative norm.

According to the Inheritance Law – under Article 206 and Article 236, following the demise of a person, his or her estate shall be opened. The announcement of death of a person has the same effect and applicable is the law that was in

force at the time of the testator’s death. Therefore, according to the law, the estate is opened ex officio. However, in practice this does not happen, which is why it is necessary to file with the court a petition for the initiation of probate proceedings by submitting proof of kinship with the testator – i.e. extracts from the birth register and proof of assets

The provisions of Articles 64 and 65 of the Law on Inheritance provide that if a descendant, who is entitled to the mandatory part, is indebted or a squander, the testator may wholly or partially deprive him of the mandatory part for the benefit of the squander’s decedents, whereby the deprivation has to be done in the form required for the last will and testament, but shall be valid only if at the time of the testator’s death the deprived had a minor child or minor grandchild from a previously deceased child. The same applies if the deprived has an adult child or adult grandchild of a previously deceased child, who are unfit to earn a living.

No.

The provisions of Article 78 of the Law on Inheritance of the Republic of Serbia stipulate that the last will and testament is a one-sided, personal and always revocable statement of will of a person capable to do so, by which it is distributing its property in case of death, in a legally-defined form.

On the basis of the law, the testator is inherited by: his descendants, his adoptees and their descendants, his spouse, his parents, his adoptive parents, his brothers and sisters and their descendants, his grandfathers and grandmothers and their descendants and his other ancestors. Depending on the degree of kinship with the testator, the heirs are classified in inheritance ranks, according to which they are inheriting, whereby the heirs of a nearer inheritance rank exclude from the inheritance the heirs of a further inheritance rank. The Republic of Serbia is the last legal successor.

There are no special regulations for certain facilities, but when it comes to real estate, the provision of Article 71 of the Law on the Resolution of Conflicts of the Law with the Regulations of Other Countries («Official Gazette of SFRY», No. 43/82 and 72/82 – corr., «Official Gazette of FRY», No. 46/96 and «Official Gazette of the Republic of Serbia», No. 46/2006 – other law) (which is now accordingly applicable in the Republic of Serbia) stipulates that for the hearing of the estates consisting of real estate of Yugoslav citizens (currently citizens of the Republic of Serbia), if the real estate is located in the Federal Republic of Yugoslavia (now Republic of Serbia), the exclusive jurisdiction lies with the court of the Federal Republic of Yugoslavia (now the court of the Republic of Serbia). If the estate of a Yugoslav citizen in the form of real estate is located abroad, the jurisdiction of the court of the Federal Republic of Yugoslavia exists only if, according to the laws of the state in which the real estate is located, its authority is not competent. When it comes to movable property, the jurisdiction of the court of the Federal Republic of Yugoslavia to hear the estate consisting of movable property of a Yugoslav citizen exists if the moveable property is located on the territory of the Federal Republic of Yugoslavia or if, under the law of the state in which the moveable property is located, the foreign authority is not competent, or if such authority refuses to hear the estate.

At the court of jurisdiction for the place of last residence of the testator it can be verified whether proceedings have already been initiated.

Mandatory heirs are the testator’s: descendants, adopted children and their descendants, spouse, parents, adoptive parents, siblings, grandparents and other ancestors. Mandatory heirs are entitled such part of the estate which the testator was unable to dispose with and which is called the mandatory portion. Mandatory portion of descendants, adoptees and their descendants and the testator’s spouse is one half, and the mandatory portion of the other mandatory heirs is one third of the portion that each of them would have been entitled to under the legal succession order

The heir is liable for the testator’s debts up to the value of his inherited property. Such heir, who has renounced the inheritance, is not liable for the testator’s debts.

When a juvenile participates in the proceedings, the interests of the minor are represented by the legal representative of that minor, whereby the court or public notary who is entrusted with the implementation of the probationary proceeding, in a situation where it finds justified (for example, if a legal representative on behalf of the minor gives a negative inheritance declaration or if he/she wants to reach an agreement with the other heirs on the division of the estate of the testator, as well as in a situation in which the court or the public notary finds out that the legal representative is undertaking actions that are not in the minor’s interest) the court, i.e. the public notary, shall notify the Centre for

Social Work on the initiation of the procedure, to invite it to attend the hearings, request a written consent thereof (in connection with the statement of the legal representative of the minor), shall deliver to it the submissions of the participants and decisions against which the legal remedy is allowed, and possibly request it to appoint an interim guardian for the minor. Also, the court issues ex officio a decision on the inventory and assessment of the estate of the testator, inter alia, when the heirs are persons who, due to their minority, mental illness or other circumstances, are unable to take care of their affairs by themselves.

According to the provisions of Article 8 of the Law on Inheritance of the Republic of Serbia, the testator can be inherited by: his descendants, his adoptees and their descendants, his spouse, his parents, his adoptive parents, his brothers and sisters and their descendants, his grandfathers and grandmothers and their descendants and his other ancestors. Bearing in mind the above, if the testator was living in an extramarital community, an extramarital spouse may possibly exercise his/her rights in civil proceedings (and not in probationary proceedings), as he/she, according to the previously quoted provision of the Law on Inheritance does not enter into the round of legal heirs.

The inventory and the evaluation of testator’s estate shall be carried out by a notary public on the basis of a court decision. The inventory shall include: the complete assets that were in the possession of the deceased at the time of death, including where the property is located and with the indication where this property is located and on which grounds, including the assets that were held by the deceased and for which it is claimed that it is not his property. The inventory of assets shall include records of claims and debts of the deceased

The basic legal effect of a positive inheritance statement is that it is irrevocable, that the once given inheritance statement can no longer be changed (except in the case where the same was a consequence of coercion, threat, fraud or deception, in which case the heir who has accepted the inheritance may request the annulment of the statement on the acceptance, as stipulated in the provision of Article 220 of the Inheritance Law), which means that the heir loses the right to renounce his inheritance. Therefore, after giving a positive inheritance statement, which by its nature is irrevocable, a person who has accepted the inheritance can no longer give a negative inheritance statement. Furthermore, the heir (i.e. the one who has accepted the inheritance, i.e. who was proclaimed as heir) is liable for the testator’s debts up to the value of the inherited property.

The heir can renounce the inheritance by a statement before the court, prior to the end of first instance probate proceedings, or before the notary. The heir may renounce the inheritance only on his behalf. The inheritance cannot be renounced by an heir who has explicitly or tacitly accepted the inheritance, while the renunciation of an inheritance that has not been opened shall be nil and void. Each heir may request the division of the estate at any time, except at unacceptable times. Until the division, the heirs are jointly managing and disposing of the estate.

The provisions from Article 8 to Article 77 regulate the intestate inheritance. Only someone who was alive at the moment of the testator’s death can inherit, but a child who was already incepted at the moment of the testator’s death can also inherit, if it is born alive. It is inherited by inheritance orders, whereby the heirs of the nearer inheritance order are excluding from inheritance the heirs of the further inheritance order.



The first inheritance order is composed of testator’s descendants and his/her spouse, and they inherit in equal parts.



The second inheritance consists of the testator’s spouse and the testator’s parents and their offspring, whereby the testator’s spouse inherits half of the estate, and the other half of the estate is inherited by the testator’s parents in equal parts. If the testator’s spouse cannot or won’t inherit, the estate is in equal parts inherited the testator’s parents, and if the testator’s parent cannot or won’t inherit, his/her share will be inherited in equal party by his/her children (the siblings of the testator), his grandchildren and grand-grandchildren and his subsequent descendants, according to the rules applicable to the testator’s inheritance by his descendants. If the testator’s parents do not have any offspring, and cannot or will not inherit, the spouse inherits the entire estate.



The third inheritance order consists of the testator’s grandfathers and grandmothers and their offspring, whereby the testator’s grandfather and grandmother on the father’s side (father’s lineage) shall inherit half of the estate, and the other half shall be inherited by the grandfather and grandmother from the mother’s side (mother’s lineage). The grandfather and grandmother of the same lineage inherit in equal parts, but if one of these ancestors cannot or won’t inherit, his/her part shall be inherited by his children, his grandchildren and his subsequent descendants, according to the rules applicable when the testator is inherited by his descendants.



The fourth inheritance order is made of the testator’s grand-grandfather and grand-grandmother. The testator’s grand-grandfather and grand-grandmother from the father’s side inherit at equal parts one half of the inheritance, and the other half in equal parts is inherited by the grand-grandfather and grand-grandmother from the mother’s side. Following the testator’s grand-grandfather and grand-grandmother, the state shall be inherited by his farther ancestors, under the order, pursuant to the rules under which he was inherited by his grand-grandfathers and grand-grandmothers.



The Republic of Serbia inherits if the testator has no other legal heirs and it cannot renounce the inheritance.

The basis for the calculation of fee which belongs to the public notary (exceeding expenses) shall be the value of the estate which is determined on the basis of the assessment of the market value of assets and rights constituting the testator’s estate, reduced for the testator’s debts.

By provisions of Article 18 and Article 19 of the Law on Property Taxes («Official Gazette of the Republic of Serbia», No. 26/2001, «Official Gazette of FRY», No. 42/2002 – decision of Federal Constitutional Court and «Official Gazette of RS» No. 80/2002, 80/2002 – other law, 135/2004, 61/2007, 5/2009, 101/2010, 24/2011, 78/2011, 57/2012 – decision of the Constitutional Court, 47/2013 and 68/2014 – other law) it is provided that the tax rates on inheritance and gift are proportional, and that the taxpayers who, in relation to the testator or to the donor, are in the second inheritance order according to the intestate inheritance order (hereinafter: inheritance order), are required to pay inheritance and gift tax at a rate of 1.5%, while taxpayers who, in relation to the testator or donor, are in the third and further inheritance orders, i.e. if the taxpayers are not related to the testator or donor, shall pay an inheritance and gift tax at a rate of 2.5%.



Whereby, the acquisition of property in probationary proceedings by the acceptance of the assigned inheritance share is considered to be a gift within the meaning of this law, and the tax on inheritance and gift is not paid by:



heirs of the first inheritance order, spouse and parent of the testator, i.e. gift recipient of the first inheritance order and the spouse of the donor;

heir, i.e. donor recipient, farmer of the second inheritance order who inherits, or receives as a gift property that serves for carrying out an agricultural activity, if he has lived with the testator or the donor continuously in the same household for at least one year prior to the death of the testator, i.e. prior to the receipt of the gift; heir, or gift recipient of the second inheritance order, on one inherited, i.e. received as gift apartment, if he or she has lived with the testator, i.e. donor, continuously in one common household at least one year prior to the death of the testator, i.e. prior to the receipt of the gift;

gift recipient – for the property that was awarded to him in the probationary proceedings, which he would have inherited as heir – on which the donor has renounced the inheritance;

foundation, on the property received as inheritance or gift, which serves exclusively for the achievement of the general common interest for which the foundation was established;

an endowment, i.e. association, established for the purpose of achieving a general common interest in the sense of the law regulating endowments, registered in accordance with the law – on inherited or received property received exclusively for the purposes of achievement of the general common interest for which the foundation was established;

heir, i.e. gift recipient of ambulance vehicles, special passenger vehicles for the training of candidates for drivers with built-in double foot controls, as well as passenger vehicles for cabs and «rent-a-car» which are specifically marked;

on the division of property jointly acquired by the spouses during the term of marriage, carried out between the former spouses, thus governing their matrimonial relations in connection with the divorce;

Republic of Serbia, autonomous province, or units of local self-government, as successor, or gift-recipient;

The provisions of Article 17 of the Law on Property Taxes stipulate that the tax liability in relation to the inheritance is incurring as of the date of validity of the inheritance decision, unless otherwise regulated by this Law.