What are the main rules of succession, and what are the scope and effect of any rules of forced heirship?
Succession laws in India are dependent upon religion and customs followed by an individual. Succession laws for individuals professing Hinduism, Zoroastrianism, Judaism and Christianity faith are codified; however, succession amongst Muslims is still governed by uncodified Sharia Law. The Indian Succession Act, 1925 governs the succession amongst Zoroastrian, Jews and Christians. Succession matters of Hindus, Sikhs, Buddhist and Jains are enshrined under the Hindu Succession Act, 1956.
So far as Wills and testamentary dispositions are concerned, the provisions of Indian Succession Act, 1925 are applicable to everyone (except Muslims) regardless of the religion being followed and thereby can bequeath the properties in the manner the testator desires. In case of Muslims, as Sharia Law is applicable, they cannot bequeath more than one third of their properties under a Will. The rest viz., two-third has to devolve upon the heirs in the manner specified under the Sharia law. In the event, a Muslim testator bequeaths more than one-third of his properties under a Will, the bequest would be valid only if the heirs at the time of distribution of properties give their consent to distribute in accordance with the Will.
One exception to the above discussion is that the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (GSSNIP Act) governs succession matters of individuals residing in Goa (a state in India). GSSNIP Act also incorporates the community property rules.
The governing legislation for succession is Bulgaria is the Inheritance Act of 1949, which sets out the following main principles:
- the distribution of the deceased`s estate is dealt by either the rules for succession order stipulated in the Inheritance Act or the deceased’s last will subject to the forced heirship rules;
- In case of intestate succession the Inheritance Act provides for four levels of successors in order of succession rights whereby those in the preceding level exclude those in the successive ones. The surviving spouse inherits along with the heirs from the 1st to the 3rd level and replaces the heirs of the 4th level.
- Any part of the estate outside the reserved portion determined by the forced heirship rules may be freely disposed of by will or gift;
- The heirs that are protected by the forced heirship rules are the spouse, the descendants (children and grandchildren) and the parents of the deceased;
- The exact proportions of the reserved portion depends on the capacities of the protected heirs and their number:
- if the deceased doesn’t have a surviving spouse, the reserved portion of the descendants (including adopted children) is: ½ - in case of 1 one child or descendants thereof; and 2/3 - in case of two or more children or descendants thereof;
- The reserved portion of the parent(s) is 1/3;
- The reserved portion of a surviving spouse, where inheriting without the deceased’s parent(s) is 1/2, and 1/3, where inheriting along with the parent(s);
- If the deceased has left descendants and a spouse, the spouse is entitled to a portion of the estate that is equal to that of any surviving children. In this case the disposable part of the estate is: (i) 1/3 in case of spouse and one child; (ii) ¼ in case of spouse and two children; and (iii) 1/6 in case of spouse and three or more children.
- If there are no successors determined by the applicable law and there is no will in place, the estate is inherited by the Bulgarian state or municipality
Testate succession occurs pursuant to the terms of the Will of a deceased person.
Intestate succession is governed by the rules contained in the Succession Act 1965, and occurs where a deceased person either has not made a Will, or has not fully disposed of his free estate by the terms of his will. The Succession Act 1965 sets out the division of a deceased’s estate where they die intestate.
There is a limited form of forced heirship under Irish law. The Succession Act 1965, provides for an absolute right of a spouse (same-sex also included since 2015) or civil partner of a deceased person to a fixed share in the deceased’s estate. This right is often referred to as the ‘legal right share’ and cannot be defeated by the provisions of the deceased’s Will. The percentage share entitlement of the spouse / civil partner will depend on whether the deceased dies with or without children.
The legal right share may be renounced in writing by a spouse after marriage or civil partner after the civil partnership but during the lifetime of the testator.
A child of a deceased person has no specific entitlement to his / her estate and simply has an entitlement to apply to court for relief, which may be granted if the court is of opinion that the deceased failed in his / her moral duty to make proper provision for the child in accordance with his / her means, whether by Will or otherwise.
Generally speaking, an individual is free to choose the beneficiaries of his or her estate by executing a Will (or Will substitute) detailing his or her wishes. However, most separate property states have elective share statutes that prohibit the disinheritance of a spouse, instead requiring that some portion of a person’s estate (usually about one-third) pass to his or her surviving spouse. Louisiana is the only state with forced heirship, requiring that some portion of a person’s estate is left to his or her children if such children are under the age of 23 or permanently incapable of taking care of their persons. If an individual dies without a Will, the distribution of his or her estate will be subject to the intestacy laws of the state of his or her residence. Each state has its own set of intestacy laws, but the surviving spouse and children are usually favoured.
Under the French forced heirship rules, a certain porting of estate cannot be freely disposed of by lifetime gift or Will other than to descendants or under certain circumstances, to the surviving spouse.
The remaining portion of the estate that can be freely disposed of depends on the number of children the deceased had:
- one child: half
- two children: one-third
- three children or more: one quarter.
Italian succession law provides for forced heirship rules. The reserved quota of the estate, which is reserved to forced heirs, depends on the composition of the family of the deceased upon death. For instance, if the spouse and three children are the forced heirs, 50 per cent of the estate of the deceased is the reserved quota for the children, to be divided in equal shares. For the purposes of calculating the reserved quota, the value of the estate of the deceased is equal to the value of all the assets owned at the time of death, net of any debts, plus the value of all assets that were gifted or settled into trusts by the deceased during his of her life.
The law that governs succession in Israel is the Succession Law 5725-1965 (the Succession Law), which determines two ways of bequeathing: by will or intestate in accordance with the law. There are no forced heirship rules in Israel, and each competent adult can bequeath his estate in a valid will as he wishes. Maintenance from the estate can be claimed by specific persons defined by law.
Estates are inherited by Will or [in the absence of or if infringing statutory provisions] by Law [intestate succession].
Intestate succession is categorized in six classes, whereby the previous class excludes the next one.
Classes are consisted by the following persons:
First class: Descendants [nearest degree of descendant excludes others] and surviving spouse [whose estate’s portion is 25%].
Second class: Parents, siblings and their children/grandchildren [if siblings pre-deceased] and surviving spouse [whose estate’s portion is 50%].
Third class: Grandparents and surviving spouse [whose estate’s portion is 50%].
Fourth class: Great grandparents and surviving spouse [whose estate’s portion is 50%].
Fifth class: The surviving spouse.
Sixth class: the Greek State.
The above rules are subject to a potentially different applicable framework of rules in light of the EU Succession Regulation 650/2012 [also known as Brussels IV] which entered into force in August 17th 2015 [Ireland, Denmark and the UK are not signatories], whereby the succession rules of the jurisdiction that the deceased had their habitual residence might be overriding the Greek ones.
According to Greek law, the deceased may freely dispose of all their estate; however, Greece as many other civil-law jurisdictions alike, does not recognize total freedom of testation and as such any individual’s estate portion falling under 50% of intestate’s rules mentioned above, will be infringing obligatory rules of succession.
The main rules of succession are (1.) “Vonselbsterwerb” which means, that the assets of the deceased’s pass to the heir(s) of the deceased automatically upon his death, and (2.) “Gesamtrechtsnachfolge” (universal succession) which means, that the estate of the deceased (except for shares in a partnership) passes to his heirs “as a whole”.
In case of intestacy, the deceased’s estate passes to his spouse (or civil partner) and his relatives. The share of the spouse depends on the applicable matrimonial regime (see question 13). The shares of the relatives are determined as follows: Children and – as a substitute – their descendants are heirs of the first degree, parents and – as a substitute – their descendants are heirs of the second degree, grandparents and – as a substitute – their descendants are heirs of the third degree and so on. Heirs of a lower degree exclude heirs of a higher degree. Heirs of the same degree inherit in equal shares (succession per stirpes).
There is a forced heirship regime under which the descendants, the spouse (or civil partner) and the parents of the deceased have the right to a compulsory portion in cash. The compulsory share is 50% of the value of the individual’s share in case of intestacy.
Belgian succession law is based on blood relationship and partnership. If no last will is made, intestacy rules apply. According to Belgian law there are four categories of heirs:
- parents and brothers and sisters;
- ascendants, including the parents if no brothers or sisters;
- collaterals, other than brothers and sisters, and their descendants.
Heirs from a closer category exclude the heirs from further categories. Within a category, the persons closest to the deceased exclude the others. In case of a predeceased heir, his descendants will jointly take up his position in the inheritance of the deceased.
If the deceased leaves both descendants and a surviving spouse, the latter inherits the usufruct on the entire estate whilst the descendants inherit the bare ownership. If there are no descendants, the surviving spouse can be entitled to a greater share depending on the matrimonial regime that applied to the couple. If there are no heirs, the surviving spouse receives the full ownership of the entire estate.
A surviving legally cohabiting partner only inherits the usufruct on the family dwelling and its furniture, so a much more limited right than a surviving spouse.
Children, the surviving spouse and the ascendants are legally entitled to a minimum share of the estate (‘the reserved portion’). If the forced heirs do not receive their reserved portion, they can make a claim for reduction. Ascendants will no longer be considered forced heirs when the new Belgian succession law enters into force on 1 September 2018.
The reserved portion is calculated as a fraction of the sum of all assets of the deceased on the day of his death and all gifts made by him during his lifetime.
The reserved portion of the children varies according to their number: 1/2nd if there is one child, 2/3rd if there are two children and 3/4th in case of three or more children. The remainder is the ‘disposable share’ of which the testator can dispose freely. As of 1 September 2018, the total reserved portion of all children will be 1/2nd, leaving a disposable share for the testator of 1/2nd.
The surviving spouse is entitled to the usufruct on half of the estate, but as an absolute minimum has right to the usufruct on the family dwelling and its furniture.
Legal cohabitants can disinherit each other completely; the surviving legal cohabitant is not a forced heir.
British Virgin Islands
The succession to movable BVI-situs property will be determined by the laws of the jurisdiction in which a person dies domiciled. The succession to immovable BVI property will, on the other hand, be determined by BVI domestic law no matter where its owner dies domiciled.
The domestic laws of the BVI do not contain any forced heirship provisions. There is full freedom of testamentary disposition as a matter of BVI domestic law and we have, in the BVI, no equivalent to the (English) Inheritance (Provision for Family and Dependants) Act 1975. Given the potential application of non-BVI law to the succession to movable property, forced heirship provisions would however be capable of applying to the succession to the movable property of non-BVI domicilaries depending on where they die domiciled. If they do not wish these provisions to apply they should consider setting up lifetime trusts since the BVI’s Trustee Act contains robust firewall provisions insulating BVI trusts and trustees against such claims and against foreign judgments based on them.
Regardless of where a person dies domiciled, a BVI grant of representation would be needed before BVI property, whether movable or immovable, is dealt with following death or else anyone dealing with it risks exposure to liability for intermeddling. It would be very rare indeed for it to be appropriate to rely on a non-BVI grant for these purposes.
In Dubai Shari’a law governs succession principles for Muslims. Shari’a law will also, in the absence of a Will, be applied to an expatriate’s assets on death. Under the Shari’a law principles forced heirship provisions apply, distributing assets by way of fixed shares between the deceased’s family.
New Zealand's domestic law of wills is based on the English model. Wills are regulated by the Wills Act 2007. There is complete testamentary freedom. Wills are the only testamentary instrument recognized in New Zealand. New Zealand's intestacy rules are regulated by the Administration Act 1969.
New Zealand does not recognize overseas forced heirship rules.
New Zealand forced heirship rules are limited, they also do not recognise automatic inheritance. The rules relate to maintenance of dependents and the enforcement of pre-mortem provisions. They fall under two categories: testamentary promises, and family protection claims. Testamentary promises are regulated by the Law Reform (Testamentary Promises) Act 1949 (“LRTPA”).
The LRTPA enables a person who has been promised, for consideration, provision from a deceased person's estate to claim for the performance of that promise. The requirement of proof is high and few claims succeed.
The Family Protection Act 1955 was enacted to protect family members, in particular children or grandchildren, who are not given adequate maintenance and support by their parents' or, in some cases, grandparents' Wills. These rules do not apply to inter vivos trusts. In such a case the Court is entitled to adjust the testamentary provisions made by the Will to ensure that reasonable, adequate provision is made. The Courts have emphasized that this does not mean that a testator’s intention is to be overridden in all cases and there is no presumption of equality. The question always is whether during his life, and taking into account all the circumstances of the case, the testator has made adequate provision for the maintenance of a dependant. This type of claim is unlikely to be made by persons who are not resident in New Zealand.
As a general rule, individuals are free to dispose of their estates as they think fit during their lifetime. However, the freedom of disposition may be subject to certain restrictions depending on the matrimonial property regime that the donor adopted with his or her spouse as well as on mandatory rules which cannot be derogated from by voluntary act such as forced heirship rules.
Under Monaco law, the freedom of disposition over one’s estate on death is subject to statutory forced heirship rules. Forced heirship rules compel a particular distribution of a deceased’s estate which cannot be derogated from by Will.
An individual’s assets on death consist of the reserved portion and the disposable portion. The reserved portion limits the testator’s right to dispose freely of his or her estate by Will. It is determined by law.
The reserved portion must go to the protected or forced heirs, regardless of the provisions of the Will. Children are legally entitled to inherit a reserved portion of their parents’ estates on death. In the absence of children, a certain portion of the deceased’s estate is reserved to his or her ascendants in each paternal and maternal line. No other relatives are reserved heirs. In particular, the surviving spouse is not a reserved heir.
Whenever the value of the estate is inadequate to meet the reserved portion, the disappointed heirs can make a clawback claim against the value of any gifts made by the deceased. Lifetime gifts as well as gifts made in trust may be subject to clawback after the death of the donor.
The reserved portion in the presence of one child is half of the estate and the disposable part is therefore also half. If the deceased leaves two children, the reserved portion is two-thirds of the estate and the disposable part is the remaining one-third. If there are three or more children, the reserved portion is three-quarters and the disposable part is
only one-quarter. If a child predeceases the deceased, leaving descendants of his or her own, his or her descendants represent the deceased child and are entitled to the share that the deceased child would have taken had he or she survived.
If there are no children but the deceased is survived by ascendants, they are the forced heirs. If there are ascendants alive in both the paternal and maternal lines, the reserved portion is half of the estate and the disposable portion is also half. If there are ascendants only in one line, the reserved portion is one-quarter and the disposable portion is three-quarters. Other remoter ascendants are entitled to a reserved portion only if the deceased leaves no siblings or their issue.
On the death of the deceased, the heirs acquire the worldwide estate in its entirety, by operation of law. The estate consists of all movable and immovable assets owned by the deceased at the time of her/his death, as well as limited rights in rem or claims. In order to determine the net estate value to be divided among all the beneficiaries, liabilities such as outstanding debts, funeral expenses, administrative costs and taxes are deducted from the gross estate value. An heir can renounce her/his share in the estate within three months after becoming aware of her/his inheritance. In order to ease the decision making process with regard to the renunciation of the estate, each heir has the right to request a public inventory from the competent authority, within one month from the opening of the estate. This inventory will list all the assets and debts of the estate, together with an appraisal of the value of each item.
Absent any will from the deceased, statutory heirs inherit as follows: (i) surviving spouse or registered partner inherits 50% of the estate if there are surviving descendants, 75% if there are no surviving descendants but surviving parents or their descendants; 100% if there are no surviving descendants, surviving parents or their descendants; (ii) surviving descendants inherit in equal shares: 100% if there is no surviving spouse or registered partner; 50% if there is a surviving spouse or registered partner; (iii) surviving parents inherit in equal shares: 25% if there is a surviving spouse or registered partner but no surviving descendants; 100% if there are no descendants and no surviving spouse or registered partner.
Forced heirship regime: The testator is in principle free to depart from such intestacy rules. However there are statutory limitations protecting certain categories of statutory heirs: (i) for the surviving spouse or registered partner of the deceased: one half of her/his statutory portion; (ii) for a descendant of the deceased: three-quarter of her/his statutory portion; and (iii) for each parent of the deceased: one-half of their statutory portion.
12.1 To the extent that English law governs succession to an adult individual's estate, he is free to leave that estate to whomsoever he wishes by making a valid Will, subject only to a claim under the regime described in §12.3.
12.2 If an individual dies without a valid Will disposing of his whole estate, then to the extent that English succession rules apply and the property does not pass to a surviving beneficial joint tenant (§16.2), the intestacy rules (§16.2) will generally govern succession to his estate (or to the part of this estate not disposed of by a valid Will).
12.3 Certain categories of person (including a spouse, civil partner, former spouse, former civil partner, unmarried cohabitant or child of the deceased, or anyone else who was being maintained by the deceased before the death) may be able to bring a claim against the personal representatives (§17.1) of an individual who died domiciled (§1.9) in England and Wales if reasonable financial provision is not made for that person under the deceased's Will or under the intestacy rules (§16.2) or otherwise as a result of his death. Such a claim may also be brought in relation to property which the deceased and another person owned as beneficial joint tenants (§16.2). It should be noted that no such claim may be brought under English law against the personal representatives of an individual who died domiciled outside England and Wales.