Married or unmarried couples can make a mutual testamentary will in favour of each other. The purpose of a testamentary disposition is to ensure the survival of the widowed spouse after the death of the other spouse, while transferring the ownership of the property left by the latter to the heirs of the deceased. The widow or widower acquires the right to control the property. However, the heirs of the deceased's successors in title are entitled to their share of the inheritance. to the legal section. This can lead to conflicts between the widow and her heirs.
What is a tenure test?
A mutual will is a will in which both parties make provisions for the benefit of each other. In a joint will, the spouses can decide either to transfer ownership or possession of their inheritance. A testamentary will is very popular, particularly because of its tax advantages.
In a joint will, the ownership of the deceased's property passes to his or her heirs, while the right of possession remains with the widow. A right of administration is the right to use the property of the deceased, which usually continues until the death of the widow or widower.. The right of usufruct means that the widow or widower may manage the inherited property as she or he sees fit, and also retain the proceeds of the property. However, she may not sell or transfer the property without the consent of the heirs, i.e. the holders of the right to possession of the property. Similarly, the heirs may not transfer the property without the consent of the legatee, i.e. the holder of the right of possession.
Testamentary succession affects the amount of inheritance tax
As the ownership of the property is not transferred to the widow at any point, she does not have to pay any inheritance tax on the value of the property. In addition, the widow's tenure reduces the amount of inheritance tax payable to her heirs, as the value of the widow's tenure is deducted from her inheritance.
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How are the rights of a widow or widower protected by a will?
In marriage, the rights of widows and widowers are well protected. For example. the right to stay in a shared home without a separate will. However, a will can be used to strengthen and extend these statutory rights of the widow or widower. A joint will can also safeguard the rights of a surviving spouse of a cohabiting partner, since they are not otherwise protected by law.
In the case of a widow's right of residence, if that right infringes the legal portion, there is no obligation to pay this legal portion during the period of the widow's right of residence if the deceased's property mainly covers only the dwelling. In other words, the widow's right is stronger in this situation than the legal right of the legal heir. The widow is therefore entitled to remain living in the home shared by the spouses.
Children's right to a share of the law
Despite the strong rights of a widowed person, the deceased spouse's heirs-in-law are also entitled to their share of the inheritance. Sometimes, in the context of a testamentary succession, the heirs-in-law may be asked not to claim their share until the surviving spouse's death. However, such a request is not legally binding and the heirs at law are always entitled to claim their share unless they have waived it by accepting the will.
What is the legal part?
The legal portion is the minimum share of the estate to which the deceased's heirs by blood, i.e. children or grandchildren, are legally entitled. Non-breast heirs are not entitled to a legal share. The right to a legal share is considered strong, i.e. a will cannot infringe the right of the heirs intestate to their legal share. The amount of the legal share is half of the amount that would be due according to the legal order of succession. Since an heir entitled to a share in the estate always has the right to claim his or her share in the estate, a mutual will should not provide that the widow's right of possession of the property should restrict the heir's right to a share in the estate.
The property to be inherited as part of the law must be disposed of without any other rights encumbering it. In a testamentary testament, the property bequeathed is owned by the heirs, but it is subject to the right of use of the widow. The property provided for by the testamentary disposition cannot therefore be regarded as part of the legal portion of the estate of the heir.
Claiming a share of the law from a widow
In principle, the testament of rights of administration is filled in full. A separate claim by the heir at law is always required to fulfil the legal part. It is typical, for example, that the joint children of a couple do not claim their share from their surviving parent. However, if they do decide to claim their share from the legatee, in this case the widow to whom the property has been transferred under the will, they are entitled to this share under the law. It should be noted that the law lays down a 6-month time limit for the payment of the legal share. This period starts to run from the date of service of the will and, on expiry of this period, the heir loses his right to claim his share in the estate.
If the heirs at law claim their share, they must present a copy of the will to the testator, the widow, within six months of the date of notification of the will. The legal share can then be paid to the heir, either in cash or in other property.
What does it mean to accept a will?
The heirs under the law are always notified of the will before it is executed. After notification, the heirs have 6 months to accept or contest the will. The will cannot be executed until the heirs have approved it, so this is a very important step for the testator, the widow.
Acceptance of the will can be made by the heir either before or after the death of the deceased. If the heirs have accepted the will before the death of the testator, they are in principle entitled to claim their share of the estate.
If, on the other hand, the heirs do not give their consent until after the death of the deceased, they must state explicitly in the acceptance of the will if they wish to claim their share of the estate. If this is not done, the acceptance of the will will be deemed to mean that the heir waives not only his or her right to a share in the estate, but also his or her right to a share in the estate. The same effect is produced if the heir remains inactive after the notification and the 6-month period has elapsed. After this period, it is no longer possible to claim the legal share, since the acceptance of the will is in principle considered binding as such.
Article drafted by the Advocate Tuula Rainto, Amos Law Firm. You can always call him free of charge on 010 299 5090. You can consult our price list Here.
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