Will and Estate Inventory
· Updated · 3 min read
Significance of the will in the estate inventory
The will is the deceased's last expression of intent regarding the distribution of their property after death. Under Chapter 20, Section 5 of the Code of Inheritance, the will is included in the estate inventory deed or attached to it as a certified copy. The will does not change the deed's asset calculation, but it decisively affects who ultimately receives the property in the inheritance distribution. The shareholders of the estate and the surviving spouse must be notified of the time and place of the estate inventory. A universal beneficiary is a shareholder and must be notified; a specific beneficiary (legatee) is not a shareholder.
The heirs and shareholders are recorded in the deed – an heir is listed even if they receive nothing from the estate.
Notification of the will
Pursuant to Chapter 14, Section 4 of the Code of Inheritance, the beneficiary under the will must notify the heirs of the will through a bailiff or otherwise verifiably, and give them a certified copy of the will at the same time. The six-month contestation period begins from the notification. Verifiable notification can be, for example, a receipt signed by the heir confirming that they received the copy. It is advisable to keep the proof of notification. The law sets no deadline for giving notification, but the contestation period and the forced share deadline do not begin until proper notification has been given.
Forced share and will
Under Chapter 7 of the Code of Inheritance, direct heirs as well as adopted children and their descendants have the right to a forced share, which is half of the legal inheritance portion. A will is ineffective against the heir to the extent that it infringes the forced share (Chapter 7, Section 5); exceptionally, the testator may disinherit an heir on the grounds in Chapter 15, Section 4. The forced share claim must be notified to the beneficiary through a bailiff or otherwise verifiably within six months of the will's notification. If the heir does not claim their forced share within the deadline, they lose the right to invoke the will's ineffectiveness. The will nevertheless remains effective if the beneficiary pays the forced share in money within a reasonable time set by the heir, unless the will prohibits payment in money. Advance inheritance and property the heir receives under the will reduce the forced share. The forced share calculation is based on the estate's net assets, also taking advance inheritances into account.
Contesting the will
A will contestation action is filed in the district court within six months of the will's notification. Grounds for contestation (Chapter 13, Section 1) include formal errors, the testator's lack of testamentary capacity, a mental disorder affecting the making of the will, and coercion, undue influence, fraud or decisive error. A will may be invalid due to formal errors if it was not made in accordance with Chapter 10 of the Code of Inheritance: in writing, witnessed by two disinterested witnesses present at the same time, with the testator signing the will or acknowledging the signature as theirs. In emergencies, a will may exceptionally be made orally or in one's own handwriting without witnesses (Chapter 10, Section 3). The heir has no right to contest if they have accepted the will or verifiably waived the right. Acceptance of the contestation results in the will being declared invalid in whole or in part.
Interpretation of the will
The starting point for interpreting a will is the testator's intent. According to Chapter 11, Section 1 of the Code of Inheritance, a will must be interpreted so that the interpretation can be presumed to correspond to the testator's intent. A universal will gives the beneficiary the right to all property or a share of it. A specific will (legacy) gives the right to specific property, such as a property or a sum of money. A usufructuary will gives the beneficiary the right to use the property without ownership. Will interpretation disputes are ultimately resolved by the court.
Frequently asked questions
How is a will considered in the estate inventory?
The will is a key document in the estate inventory that affects the distribution of the inheritance. Under Chapter 20, Section 5 of the Code of Inheritance, the will is included in the estate inventory deed or attached to it as a certified copy. The will does not change the deed's asset calculation, but it affects who receives the inheritance in the distribution. The deed lists the heirs and the shareholders of the estate. A universal beneficiary is a shareholder of the estate and must therefore be notified of the time and place of the estate inventory like the other shareholders.
How is notification of the will carried out?
Under Chapter 14, Section 4 of the Code of Inheritance, the beneficiary must notify the heirs of the will through a bailiff or otherwise verifiably, and give them a certified copy of the will at the same time. Verifiable notification can be, for example, a receipt signed by the heir confirming that they received the copy. Notification starts the six-month period for contesting the will (Chapter 14, Section 5) and the six-month period for a direct heir to claim the forced share (Chapter 7, Section 5). The law sets no deadline for giving notification, but these periods do not begin until proper notification has been given.
What is a forced share and can a will override it?
The forced share is the minimum portion of inheritance for a direct heir (a child or their descendant) and for an adopted child and their descendants. It is half of the inheritance portion the heir would receive without a will. A will is ineffective against the heir to the extent that it infringes the forced share, but the heir must invoke this: the forced share claim must be notified to the beneficiary through a bailiff or otherwise verifiably within six months of notification of the will (Chapter 7, Section 5). If the claim is not made in time, the right to invoke the will's ineffectiveness is lost. The beneficiary may also pay the forced share in money unless the will prohibits this, and in exceptional cases the testator may disinherit an heir under Chapter 15, Section 4.
When can a will be contested?
Under Chapter 13, Section 1 of the Code of Inheritance, a will can be contested if it was not made in the legally required form, the testator was not competent to make a will (Chapter 9, Section 1), the will was affected by mental illness or another mental disorder, or the testator was coerced, unduly influenced by abuse of their position, fraudulently induced, or mistaken in a way that decisively affected their intent. The action must be filed in the district court within six months of notification of the will (Chapter 14, Section 5). The right to contest belongs to the heir, but not if the heir has accepted the will or verifiably waived the right. After the period expires, the will can no longer be contested.
Can a will be made for property discovered after the estate inventory?
A will can no longer be made after the testator's death, but if new assets or debts emerge after the estate inventory, a supplementary or corrective deed must be drawn up within one month under Chapter 20, Section 10 of the Code of Inheritance; the rules on the estate inventory deed apply to it as appropriate. The will also covers later-discovered assets if they fall within the property it disposes of; a universal will covers, for example, the entire estate or a fraction of it. In particularly reprehensible cases, failing to draw up the supplementary deed can make a shareholder personally liable for the deceased's debts (Chapter 21, Section 3).
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