Return of the gift to settle the necessary part
There are situations when decedents during their life dispose of property in such a way that what remains from that property after their death is not sufficient to settle the necessary hereditary part. In this article, we will look at the first of two options for claiming the necessary part, which are: the return of a gift and the contesting of a will. Pursuant to the Law on Inheritance, only necessary successors have the right to demand a return of the gift to settle the necessary part, and this right can be inherited only if the necessary successor has already made a claim for the necessary part before his death.
The necessary successors are the descendants of the decedent, his adopted children and their descendants, as well as his spouse. Decedent’s parents, adoptive parents and other ancestors are necessary successors only if they are permanently incapable to work and do not have the necessary means of subsistence. When that necessary part is violated, the gifts will be returned as needed to settle the necessary part. Dispositions of will are reduced first (if there is a will), and then if the necessary part is not settled by this reduction, gifts will be returned.
A violation of a necessary part occurs when the total value of the disposition is such that the necessary successor does not receive the full value of his necessary part.
The necessary part of the descendants, adopted children, their descendants and the spouse is one half, and the necessary part of all other necessary successors is one third of the part which would belong to each of them in accordance with the legal order of inheritance. Gifts are returned starting with the last gift and vice versa from the order in which the gifts were made, and gifts that were given at the same time are returned in proportion. According to the Law on Inheritance, a waiver of right, debt forgiveness, what the decedent gave during the lifetime to the successor in the name of the hereditary part, either for the purpose of establishing or expanding the household, or for the purpose of pursuing a profession, as well as any other disposition without compensation can also be considered as a gift.
In order to calculate the value of the necessary part, it is necessary to determine the value of the legacy according to the special rules laid down by the Law on Inheritance. When assessing a gift, the value of the given item is taken at the moment of the decedent’s death, and according to its condition at the time of giving.
The value of the legacy is calculated in accordance with Art. 71 of the Law on Inheritance:
- The first thing to do is to list and evaluate all the possessions that decedent had at the time of his death, counting here all the things he disposed of in his will, as well as all his claims, including those which he has against any of the successors, except for claims that are clearly irrecoverable.
- From the determined value of the goods which the decedent had at the time of death the amount of debt of the decedent shall be deducted, as well as the amount of expenses for listing and assessing the legacy and the burial costs of the decedent.
- To the residue thus obtained the value of all gifts given in any way by decedent to any of the successors, whether he inherits the decedent shall be added up, including gifts made to successors who renounce the inheritance, as well as those gifts for which decedent has ordered not to be credited to the successor in his or her necessary part.
- This is to be added to the value of the gifts made by the decedent in the last year of his life to other persons who are not legal successors, with the exception of minor ordinary gifts.
Once the value of the property has been determined in accordance with the aforementioned law, it is necessary to determine whether the value of what the necessary successor has received is less than the value of the necessary part that belongs to him according to the calculation. Only if it is the case that the value of what he received is less, can he claim a return of the gift within 3 years from the decedent’s death, that is, from the day of the validity of a decision on declaring the decedent’s dead, or establishing his death.
Lastly, it is important to emphasize that the necessary successors are entitled to make a request for settlement of the necessary part in the inheritance procedure, and not after its completion, therefore, in order to more accurately calculate the value of the necessary part and follow the deadlines and in order to refer to your rights in more detail, it is advisable to contact a lawyer who will advise you how to deal with this situation.