Inheritance Law. From the SelectedWorks of Marcis Liors Skadmanis Mr. Marcis Liors Skadmanis. Summer May 29, 2009

Transcription

1 From the SelectedWorks of Marcis Liors Skadmanis Mr. Summer May 29, 2009 Inheritance Law Marcis Liors Skadmanis Available at:

2 Inheritance Law in Latvia the Baltic States by Marcis Liors Skadmanis Latvia's inheritance laws affect everyone who owns property in Latvia. The main laws are: The Constitution of the Republic of Latvia, Civil Law, Notary law; Civil Procedure Law; Law On Orphan's Courts; Land Register Law and Immigration Law and acts of the Cabinet of Ministers. Latvia's constitution "Satversme" adopted in 1922 provides that: * Foreign nationals are not treated differently, and are subject to the same laws as the citizens of Latvia. * Everyone has the right to own property. * Property shall not be used contrary to the interests of the public. * Property rights may be restricted only in accordance with law. * Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation. The Civil Law of Latvia (Civillikums) was adopted in 1938 and was reinforced step by step until Civillikums regulates the following main issues of civil legislation: Family Law, Inheritance Law, Property Law and Law on Obligations. The Civil Law states that: * A whole estate comprises all immovable property located in Latvia which may be transferred to others, and which, at the time of death, was owned by the deceased (who is called an estateleaver). * The right to enter into the whole of the rights and obligations pertaining to the estate of the deceased is called the right of inheritance. A person who has such a right is called an heir. * Legal persons who the estate-leaver has affirmed in his/her instruction in contemplation of death, by making them heirs, and bequeathing them property, also have the capacity to inherit. Such legal persons, upon their affirmation or general registration, are considered as heirs from the day the succession is opened. The Civil Procedure Law (Civilprocesa likums) adopted on 14 October 1998, has replaced the older Civil Procedure Code. The Civil Procedure Law regulates the procedural issues of all levels of courts in Latvia. Regulations for accepting an inheritance are fixed in the Civil Procedure Law. The Civil Procedure Law states that, if the heirs have not declared their intention to accept the inheritance, the creditors and legatees of the estate-leaver, as well as substitutes and successors, may submit to the court which has jurisdiction over the estate matter, an application to require the heirs to declare their position regarding acceptance of the inheritance. Immigration Law defines the right of a foreigner to request a visa.

3 A foreigner, in accordance with the procedures prescribed by the Immigration Law, has the right to request a visa if it is necessary for him/her to manage immovable property in Latvia belonging to him/her, or to accept an inheritance which is located in Latvia. Since Latvia joined the Schengen area, Latvia's representations abroad have commenced the issue of uniform or "Schengen Visas", valid throughout the entire territory of the Schengen states. The maximum period a foreign national can stay in the Schengen area, with a Schengen visa, is 90 days in any half-year, counting from the first date of entry. If a foreign national needs to stay in Latvia for more than 90 days in any half-year, then, depending on the situation, he/she must obtain a national long-term visa or residency permit. A long-term visa is valid only for domicile in Latvia, as well as for transit of other Schengen states for the purpose of entry into Latvia. Notary law defines the conduct of inheritance proceedings. A sworn notary commences inheritance proceedings after the following inheritance submissions have been received: * Acceptance of an inheritance; * Confirmation of the right of inheritance; * The coming into legal effect of the last will instruction instrument; * Renunciation of an inheritance; * Reading of the last will instruction instrument; * Refusal of a testamentary inheritance; * Proclamation; * Invitation of heirs; * Protection of an estate. Inheritance submissions must be received within one year of the death of the deceased by a sworn notary who is practising in the operational territory of the regional court in the last place of residence of the estate-leaver. If this place is not known, or if the deceased died outside Latvia, then the submission must be received by a sworn notary in the location of the estate, or the principal share of the estate. The submitter must indicate the name of the estate-leaver, his/her date of death and last place of residence, but if this is not known, the location of the estate or the principal share of the estate. The Law on Orphan's Courts provides for assistance in the settlement of inheritance matters and the protection of inheritance. In parishes and such cities not having a sworn notary, as well as in counties, except a city of an administrative centre if it has a sworn notary, an Orphan's court, in cases provided for by the Civil Law, may provide assistance in the settlement of inheritance issues, and also the protection of inheritance, as well as making certifications and performing other tasks. Civil law governs intestate succession. When there is no inheritance contract or will, or if it is void, the heirs inherit pursuant to Civil law. If an instruction in contemplation of death exists but was given or remains valid for only one share of the estate, the remaining shares pass in accordance with the procedures of intestate succession. Civil law defines the following persons are entitled to inherit by intestate succession:

4 * spouse * kin * adoptees The estate-leaver may express his/her intent in a will or inheritance contract. A contractual right to inherit has priority over a right derived from a will. An inheritance contract or will has priority over an inheritance right based on Civil law; all three kinds of inheritance rights may exist simultaneously. Foreign nationals should make a will or inheritance contract in Latvia, or in a foreign state, to dispose of property located in Latvia. Any unilateral instruction which a person has given in case of his/her death regarding all or part of his/her property or property rights in Latvia, is called a will. A testator may revoke, amend or add to a will at any time. The three types of will are public, private, and oral. Public wills: Are made before a notary public or an Orphan's court in Latvia, or a Consul of Latvia in a foreign state. A public will is made in the presence of the testator with the participation of two witnesses. Private wills: May be deposited for safekeeping with a notary public or an Orphan's court in Latvia, or with a Latvian Consul in a foreign state. When accepting a will for safekeeping the identity of the testator must be verified. For a private will to be valid it must be prepared by the estate-leaver and correctly reflect his/her last intent. A private will can be made in any language. A written private will need not necessarily be written by a testator him/herself, but he/she must sign it in the presence of the witnesses or must declare to the witnesses that he/she has signed it in person. If the testator is illiterate or is unable to write, then a third person may sign in his/her place, and this must be mentioned in the will itself, and confirmed by the two witnesses. A will that is not valid as a public will cannot be invalidated as a private will, if the provisions regarding private wills have not been infringed in its preparation. Oral wills: Can be made in exceptional circumstances by an estate-leaver who is unable to make a written private or public will. If, upon the cessation of these circumstances, it is possible for the estateleaver to make a written will, then the oral ceases to be valid three months after the cessation of the circumstances. An inheritance contract is an alternative to a will. An inheritance contract requires one party to grant the rights to his/her future inheritance in full or in part to another party or to a third person. Several parties can grant such rights to each other. Exclusion from an inheritance is not permitted in an inheritance contract. An inheritance contract establishes not only a personal obligation, but the inheritance right itself. On the other hand, a contract which contains only a promise to appoint someone as his/her heir in the future has no such effect (notwithstanding that both parties have agreed on the principal provisions of a future inheritance contract).

5 An inheritance contract may be entered into only by persons who have the legal right to enter into contracts, and have the capacity to make wills and to inherit pursuant to wills. The estateleaver must have the right to determine the disposition of his/her own property in the event of death. An heir who is appointed pursuant to contract must have the capacity to inherit. An inheritance contract must be certified according to notarial procedures. If the contract concerns immovable property, then it must be registered in the Land Register. If the subject matter of an inheritance contract is immovable property and the contract is entered in the Land Register while the estate-leaver is alive, then he/she may not sell, mortgage or encumber it with property rights without the consent of the contractual heir. In order to take an intestate or testamentary inheritance, the contractual heirs must survive until the opening of the succession and the invitation to inherit. An heir who is appointed provisional upon a certain condition must survive until the occurrence of such a condition. An owner may make a gift prior to death, subject to certain provisions. For a gift of property prior to death to become valid in Latvia, the prospective donee, or his/her legal representative, must accept it. If a donee agrees to accept a gift at a time when the grantor no longer has the capacity to act, then the gift is considered void. By agreeing to accept a gift, the donee, as well as the heirs of the donee, have the right to claim the delivery of the gift from the grantor, as well as from the heirs of the grantor, by court action. A gift may be revoked due to the ingratitude of a donee. Ingratitude consists of gross insults or acts towards the grantor, substantial financial loss deliberately inflicted upon the grantor, endangerment of the grantor's life, and/or abandonment of the grantor in a helpless condition if it was possible to provide assistance. The right to revoke a gift due to ingratitude does not devolve to the heirs of the grantor, and also may not be invoked against the heirs of an ungrateful donee. The grantor may only bring an action in personam against the donee to return the property itself along with all its appurtenances and fruits, but then only while the gift is still part of the donee's property, or at least while the donee is still benefiting from the gift. If in the meantime, but still before bringing the action, the donee encumbers the gift with certain property rights, and then the grantor who revokes the gift must consider them to be in effect. If a gift is of such magnitude that it deprives forced heirs of their preferential shares, then the heirs may demand that the donee give them such shares. The preferential shares are calculated based on the grantor's financial state at the time of making the gift. If later, such property has increased in value, then this increase is taken into account, as well as that which is bequeathed to the forced heirs by instructions in contemplation of death. Civil law also defines gifts as property granted in remuneration for services provided. Such gifts may not be revoked due to ingratitude. Minors require legal consent to inherit. If an heir appointed in a contract or will is a minor, then, for the transaction to have legal effect, the consent of a guardian or the Orphan's court is necessary. If the estate-leaver is a minor, then any inheritance contract which has been entered into is binding only if it concerns the minor's independent property.

6 About the Author Practice areas- 1) Business Law 2) Company Law 3) Commercial and Financial Law 4) EU Real Estate and property Law 5) Inheritance Law 6) Investments Law 7) International Transactions 8) Private International Law 9) NGO Law 10) Commerce lobby (the Baltic States, and Denmark, UK ) 11) Business Representation ( UK, Latvia and Denmark ) Membership- -Member of the Chatham House, the Royal Institute of International Affairs ( UK ). -Member of IAJLJ the International Association of Lawyers and Jurists (Israel) -Member of the United Kingdom Association of Lawyers and Jurists (UK) -A local partner of the Doing business / the World Bank group (USA) Research works - "NGO and Business organization law" (2006), "NGO and Banks" (2007), "Rights regulation of the Association and Foundation to Perform Economic Activity" (2008), "International Non-Governmental Organizations in International Law" (2009). etc. Education- The School of Business Administration Turiba, Law Faculty, the Master s Degree (2009); The School of Business Administration Turiba, Law Faculty, the Bachelor s Degree (2008); web: Riga Technical University, RTU IEF "Business Administration" (2008); web: Work- Law firm Blueger&Plaude Lawyer b.t.n.uk group ( UK ) Legal Service Legal adviser and CEO info@businessmantime.com liorsliors@yahoo.co.uk