February 02, 2024
Probate proceedings are non-contentious proceedings conducted by a court to determine the heir and the distribution of the estate. The procedure covers everything that was owned by the deceased at the time of death. In probate proceedings, it is determined who the testator’s heirs are, what constitutes the testator’s estate and which other rights in relation to the estate belong to heirs, loggers and other persons. Probate proceedings are conducted in the first instance before the municipal court or before a notary public as a court commissioner. As a rule, the court will entrust the notary with the conduct of probate proceedings and deliver him a death certificate.
Objections against notary public decisions
As a rule, a record of the actions taken in the proceedings shall be drawn up. Decisions are made in the process in the form of a decision. A notary public is allowed to object against the decision issued as a trustee of the court in probate proceedings within eight days from the date of delivery of the decision to the parties. The complaint shall be submitted to a notary public who is obliged to submit it without delay together with the file to the competent municipal court. The objection is decided by an individual judge. No independent appeal is allowed against the decision of the notary public which quashed the notary’s decision in whole or in part.
Previous actions
Before initiating probate proceedings, certain previous actions such as compiling a death certificate, inventory of property and insurance of the estate are performed.
Compiling a death certificate
When a person dies or is declared deceased, the registrar responsible for registering the fact of death in the register of the deceased will compile a death certificate and submit it to the court, or hand it over to the person on whose request he drew it up. The death certificate is compiled on the basis of data from the register of deceased, data obtained from relatives of the deceased, from persons with whom the deceased lived and from other persons who can provide them. If an incomplete death certificate or just an extract from the register of the deceased has been handed over to the probate court, it shall establish on the record in the probate hearing all the information to be contained in the death certificate. The death certificate has the evidentiary power of a public document only regarding the data taken from the death register.
In addition to the deceased’s personal data and death data, the death certificate should, if possible, indicate the heirs of the first order (spouses and children), other relatives, and an inventory of known property.
List of the deceased’s assets
The inventory of the deceased’s property will be made when it is not known whether there are heirs or where they reside, when the heirs are persons who, due to minors, mental illness or other circumstances, cannot take care of their rights and interests themselves, or in other justified cases. The list may also be drawn up at the request of the testator’s heirs, minutes or creditors.
If special circumstances require this in which the deceased died, and in particular if there is a risk that part of the estate could be stolen or lost, police officers who in these circumstances arrange, on the occasion of their editing, if possible, will list the deceased’s belongings, if necessary seal the premises in which the things are located and submit the list to the registrar responsible for registering the fact of death. In this case, the registrar shall submit the received list to the competent court or notary public.
The list should include all immovable and movable things that were in the deceased’s immediate possession at the time of his death. The list will also include other things that belonged to the deceased and are with the other person, with an indication of who he is with and on what basis, as well as what the deceased possessed, which is claimed to be not his property. The list of assets will record the testator’s claims, as well as debts, and specially unpaid taxes, contributions and other public duties.
Submission and promulgation of wills
A person in possession of a document which he can assume to be the will of the deceased person is obliged to submit it without delay to the nearest municipal court. A person who knows that the deceased has drawn up a will and where it is located is obliged to inform the municipal court. The probate court is obliged to request without delay all the information from the Croatian Register of Wills on possible wills of the deceased person, and from the person and the body entrusted with the will for safekeeping to serve it to him.
When the court with which the will is found determines that the person who left the will has died or has been declared deceased, it will open his will without damaging the seal, it will read it and draw up a record of it. The opening and reading of the will will will be done in the presence of two persons, who may also be heirs. Heirs, recorders and other persons exercising a right from the estate may be present at the promulgation of a will and request a transcript of the will. The municipal court to which it is handed over will open and read the will even when another municipal court or foreign body has jurisdiction for probate hearing.
Initiating probate proceedings
Probate proceedings are initiated ex officio when the court receives a death certificate or an extract from the register of the deceased, or an equivalent document.
If, according to the data available to the court, the deceased has not left the estate, the probate court will decide by decision not to conduct a probate hearing. The court will also act in the case if the deceased has left only movable property and equal rights, and none of the persons called for succession requires that probate proceedings be conducted.
Probate hearing
Probate hearing is the main part of probate proceedings where heir rights and property division are discussed.
A probate hearing will be set for a hearing. In the summons to the hearing, interested persons will be informed about the initiation of proceedings, whether any willhas have already been submitted, and will be invited to immediately serve the court with a written will, i.e. a document on an oral will, if they are present, or to indicate witnesses of an oral will. The invitation will warn interested persons that they can make a declaration of waiver of succession orally at a hearing or a publicly certified document until the first-instance decision on succession is made, and if they do not attend the hearing or do not make such a statement, they will consider that they want to be heirs. If the deceased has left a will, persons who could claim the inheritance by law will also be notified of the initiation of probate proceedings and invited to the hearing.
Subject matter of probate hearing
At the probate hearing, all issues important for making a decision in probate proceedings will be discussed, especially regarding the right to inheritance, the size of the inheritance share and the right to records.
During probate proceedings, interested persons may make declarations without the presence of other interested persons, and it is not necessary in any event to allow those persons to comment on the statements of other interested persons. The rights of persons who have not come to the hearing and have been duly summoned will be decided according to the information available to them, taking into account their written statements that reach the decision. If the heir or his representative is unable to sign the succession statement, he will give the reason to the authorized person, who will record this in the minutes.
Succession statement
Everyone is authorized, but no one is obliged to make an inheritance statement. A person who has not made a declaration of waiver of succession is considered to want to be an heir. A person who has validly made a statement that he accepts the inheritance, can no longer waive it. The statement of succession is signed, i.e. placed by the heir or his representative.
The signature on the certificate of succession, as well as the signature on the power of attorney for issuing the inheritance statement must be publicly authenticated. An heir may waive succession only in his own name, or also on behalf of his descendants.
Referral to litigation over disputes
The court shall adjourn probate proceedings and refer the parties to litigation or proceedings before an administrative authority if facts on which some of their right depends are disputed among the parties, in particular if the facts are disputed:
- on which the right of succession depends, in particular the validity or content of the will or the relationship between the heir and the testator on the basis of which it is inherited by law,
- the size of the hereditary part, the value of the necessary part or the inclusion in the inheritance part,
- on which depends the justification of the exclusion of necessary heirs or the existence of grounds for unworthiness,
- Has a person renounced the inheritance?
If in these cases there is no dispute about the facts, but the parties dispute the application of the law, the probate court will not interrupt the probate proceedings, but will discuss legal issues in the probate proceedings. The proceedings shall not be interrupted if they are facts the existence of which the law presupposes, facts which are commonknowledge, and if the facts which can be established on the basis of public or publicly certified documents are disputed, but on the basis of the presumption about the existence of these facts, i.e. that the content of those documents is true, they will issue a decision on succession, and the person who claims the opposite will be instructed by the premises to prove it in the litigation, i.e. in administrative proceedings.
Probate proceedings will be adjourned and the parties will be referred to litigation or administrative proceedings if the facts are disputed between the parties:
- on which the composition of the estate depends,
- on which the subject of the record depends.
The proceedings will not be terminated if the facts that can be established on the basis of public or publicly certified documents are disputed, but on the basis of the presumption that the content of those documents is true, they will issue a decision on succession, and the one who claims otherwise will be instructed to prove it in litigation, i.e. in administrative proceedings. When the proceedings are interrupted for these reasons, it will be examined beforehand whether the prerequisites for the adoption of a partial decision on succession have been met, and it will be adopted if they are fulfilled. The termination of the proceedings does not apply to what is covered by the partial order of succession.
Rules on reference to litigation for succession
The court will refer to litigation or administrative proceedings a party whose right it considers less likely.
If the court terminates the proceedings, it will set a time limit that cannot exceed 30 days, in which the referred party is to initiate litigation or administrative proceedings, and notify the probate court of initiation. If a party acts on the court’s decision within a specified period, the termination of the proceedings will last until the litigation or administrative proceedings are finalized. If a party fails to comply with the court’s decision within a specified period, the proceedings will be terminated and completed regardless of the claims in respect of which the party is referred for litigation or administrative proceedings. In such a case, the party referred to litigation or administrative proceedings may exercise its rights in the proceedings to which it is referred. If the probate court has acted in accordance with the above rule, and even in the event that it has heard the estate and should have referred the party to litigation or administrative proceedings, the finality of the decision of the probate court does not prevent the application from initiating litigation or administrative proceedings.
Decision on succession
The court issues a decision on succession, which represents the legal basis for the transfer of ownership rights to heirs. By the decision on succession, the court determines who became his successor by the death of the deceased and what rights other persons have thereby acquired. The certificate of succession shall state the deceased’s data, information on heirs, real estate marks, and the basis for succession. The decision on succession will be delivered to all heirs and loggers, as well as to persons who have made an application for succession during the proceedings. The final decision on succession will be submitted to the competent tax authority and the competent land registry court no later than 15 days after the expiry of the month in which the decision became final.
In the decision on succession, the court will determine that after the decision on succession becomes final, the necessary entries in accordance with the rules of land registry law are implemented in the land register. In the decision on succession, the court will determine that after the decision on succession to authorized persons becomes final, movable property that are stored with the court, notary public or by their order to a third party. If the will of the heir is ordered to fulfil or secure obligations for the benefit of persons who are not capable of taking care of their rights and interests on their own, or for the purpose of achieving some non-profit purpose, the court will determine the necessary security measures.
The effect of the finality of the decision on succession
It is considered that the final decision on succession determines what is in the composition of the estate, who is the testator’s heir, how much of the inheritance part belongs to him, whether his inheritance right is limited or encumbered and how, and whether there are any rights to records and which. The same applies to the partial decision on succession regarding what has been established by them. What is determined by the final decision on succession can be challenged only by the one who is not bound by the finality of the decision on succession according to the provisions of the Law on Succession. He can refute this only by litigation with persons in whose favor the finding, the truth of which he disputes.
The final decision on succession does not bind persons who claim to be entitled to some right regarding what was found to be part of the estate, if they did not participate as parties in the probate hearing, nor were they duly personally invited to it. The final decision on succession does not bind persons who claim that due to the deceased’s death they were entitled to an inheritance right on the basis of a will or law, or that they were entitled to a record, if they did not participate in the probate hearing as parties, nor were they duly personally invited to it.
The final decision on succession relates persons who, as parties, participated in the probate hearing or were duly personally invited to it, but are not related to:
- as regards the rights that would arise for them from the subsequently found will,
- with regard to rights whose finding depended on how a disputed issue would be resolved in the litigation or administrative proceedings to which the probate court referred them, or should have referred them, if the matter had not been resolved before the decision on succession became final,
- if the preconditions under which they could require a retrial in civil proceedings are met.
Subsequently found property
If, after the finality of the decision on succession, property not covered by that decision is found, the court will not re-conduct the probate hearing, but will distribute this property with a new decision on the basis of the previously adopted decision on succession, unless one of the heirs has renounced the succession or ceded his inheritance share to the co-heir. If no probate hearing has been held before, the court will conduct it ex officio only if real estate has been found or rights are equal to them. If no probate hearing has been conducted before, and movables have been found or rights equal to them, the court will conduct a probate hearing only at the request of interested persons.
Concluding notes
Succession is a complex legal process that requires careful treatment in order to properly resolve the rights and obligations of the heir. It is extremely important to comply with legal provisions and procedures in order to avoid legal complications. For professional legal assistance, it is always recommended to hire a lawyer for inheritance law.
In case you need legal advice or legal representation in matters of inheritance law, please feel free to contact us at:
