TESTAMENT – TYPES, CONDITIONS AND DESTRUCTION OF NECESSARY SUCCEESSORS

According to the current Law on Inheritance, a will can be made by any person who is over fifteen years of age and capable of judgment.

Testament is the most effective way of disposing of your property in case of death, for a number of reasons.

In the text below, we will designate the last statement of will with the will, and we will call the person who makes the will the testator.

First of all, the very fact that there are several types of wills implies that unless you are currently able to make e.g. a testament to your own, you can make an oral testament before witnesses and the like.

 

TYPES OF TESTAMENT

In our legal system, there are as many as 9 different types of wills (handwritten, written testimony before witnesses, judicial, consular, international, naval, military, oral, and testamentary), and in the following we will clarify what conditions types of wills that are most common  in practice have to fulfill.

Why is it important for us to know the conditions that must be fulfilled when concluding a will? Because if only one of them is not fulfilled, the will does not produce legal effects (it is a strictly formal legal transaction).

PERSONAL TESTAMENT – For the validity of this will, it is sufficient for the testator to be a person who is literate, or a person who can read and write. As the name implies, the testator creates this will and signs it.

WRITTEN STATEMENT BEFORE WITNESSES – in this case, it is a testament already made, and the testator acknowledges it before his two witnesses, declares it to be his last will and signs it, after which the witnesses sign it.

JUDICIAL TESTAMENT – if the testator is a writing person, the court will, upon his or her saying, make a will, which he or she will read, recognize it as his/hers, and sign. If the testator is not able to read the testament, then the judge will read it to the two witnesses.

CONSULAR TESTAMENT – If you are abroad, under the same rules and conditions as in the case of the judicial will, the will can be made by a consular or diplomatic representative of our country abroad.

INTERNATIONAL TESTAMENT – a specific type of will, which can be made in any language, hand or otherwise, always in writing, but does not necessarily have to be signed by the testator. The testator may request that another person on his behalf sign it on the will and the authorized person will record it on the will. Authorized persons to make this will are a judge, consular or diplomatic agent of our country abroad, a ship commander or other chief, and a notary public. This form of testament is called “international” because it is valid regardless of where it was made and where the testator’s assets are located, as well as regardless of the testator’s nationality or residence.

ORAL TESTAMENT – when it comes to some exceptional circumstances that prevent the testator from making a written testament, the testator orally communicates his or her last will to three witnesses present at the same time, who are then obliged to transmit that will without delay to the court or to the court they convey the last will of the testator orally before the court. However, the Oral Testament shall cease to be valid thirty days after the date on which the occasion on which it was made ceases.

NOTARY TESTAMENT – a type of testament made by a notary public in the form of a notary public record.

You probably noticed that the so-called testamentary or testamentary witnesses play a very important role in the making of the will, and in addition to being a prerequisite for certain types of will, their presence increases the degree of certainty in such legal affairs and prevents manipulation, especially when it comes to persons who make the will in old age.

Therefore, the testifying witness must be a person who is literate, of legal age and of full legal capacity (except in the case of an oral testament, when the person does not have to be literate). The testifying witness cannot be the person who is the testator’s blood relative in a straight line, a sibling relative to the fourth degree of kinship, a tazbine relative to the second degree of kinship, an adopting relative, spouse, ex-spouse, extramarital partner, ex-extramarital partner, ex guardian, protégé or former protégé (except in the case of an oral will, because of exceptional circumstances).

 

DESTRUCTION OF NECESSARY SUCCESSORS

In practice, people often mistakenly think that you can just give up a child, a parent, a brother, a sister or another relative, and so often it happens that in the newspapers or other media we read how for example the father renounced the son. However, from a legal point of view, such a “waiver” has no effect. No one can give up on anyone. However, what can have the character of renunciation is the possibility that the testament gives us, so-called the destruction of necessary successors.

The first form of destruction is the exclusion of necessary successors. If you want to exclude someone who by law should inherit you from inheritance, you can do so by stating one of the legally taxed reasons for exclusion – abusive or rude treatment of the heir to the testator, then intentionally committing the crime against the testator or his close relatives. as well as if the heir gave up an unfair life or reluctance.

In order for the exclusion of the necessary heirs to produce legal effects, it is necessary that the reason for the exclusion of the heirs exist at the moment of the deceased’s death.

Another form of depravity is the deprivation of necessary heirs, also through a will. In this case, the testator deprives the inheritance of the overbearing heir or the heir that is wasteful, in favor of the offspring of that person.

The will always, in whatever form, must be made PERSONALLY (no one can make the will on your behalf).

For any additional clarifications or concerns you may have about making a will or inheritance, feel free to contact us via https://bozoviclegal.com/contact/.

Katarina S. Bozovic, attorney at law