Czechia: A brief overview of Czech law of succession

Current Czech inheritance law is governd by the Czech Civil Code (Act No. 89/2012 Coll.), i.e., specifically, in Sec. 1475 – 1720, as part of the law of property.

Current Czech inheritance law, or the law of succession, is governed by the Czech Civil Code (Act No. 89/2012 Coll., known as the “New Civil Code”, and hereinafter referred to as “Civil Code”), i.e., more specifically in Sec. 1475 through Sec. 1720 (i.e., rather curiously, in the part on the law of property). Effective as of 1 January 2014, it replaced and superseded the law of succession as set out in the “Old” Civil Code (Act No. 40/1964 Coll., the “Old Civil Code”). Up until the end of 2013, the provisions of Sec. 460 through Sec. 487 of the Old Civil Code provided only a rudimentary set of rules for inheritances. The transitional rules for the two codices pose no problem of interpretation – as per Sec. 3069 of the Civil Code, the date of death clearly determines which of the laws applies. In addition, Sec. 3070-3072 of the Civil Code give a provisional rule for the governing law of testaments drawn up before 2014 but becoming relevant only thereafter, i.e., if the case of succession only arises after 1 January 2014: everything is governed by the new provisions of the (new) Civil Code.

In a sense, the new Czech inheritance laws mark a return to the legal status prior to 1950, i.e., the status set out in the Austrian General Civil Code (ABGB) which was the law of the land in Bohemia, Moravia, and Silesia after 1811 – until 1 January 1950. According to the new rules, there exist six classes of succession after 1 January 2014 (cf. Sec. 1633 of the Civil Code) – in the first class, children and the surviving spouse inherit the estate to equal parts (Sec. 1635 (1) of the Civil Code); in the second class, if there are no children, the spouse and the parents of the deceased inherit the estate to equal parts, but the spouse shall always inherit at least one half. In the sixth class, nieces and nephews or, as the case may be, uncles and aunts of the deceased are heirs – unless none exist, in which case the state becomes the statutory heir (Sec. 1634 of the Civil Code). Under the old laws of succession, the state was the heir already after what was then the last and is today the fourth class of succession – a rule which is still in place in Slovakia today (cf. Sec. 462, Sec. 475a of the Old Civil Code and Sec. 462 et seq. of the Slovak Civil Code – Act No. 40/1964 Coll.). This essentially means that in Slovakia, nieces or nephews, or cousins, do not enjoy a statutory right of inheritance. In addition, the new Czech Civil Code contains rules regarding the so-called compulsory portion which are reminiscent of the German BGB, but which benefit strictly children (but not spouses), at rates which differ from the BGB: underage heirs inherit three fourth of the statutory portion (Sec. 1644 (1) of the Cicil Code), whereas adult children inherit only one fourth.

In addition, the new rules of succession in the Civil Code address such terms as the capacity to inherit, the acceptance or waiver of succession, testament, bequest, disinheritance, universal succession (devolution of the estate), newly also the inheritance contract, and – traditionally – the execution of the will, but also the new concept of the sale of one’s portion of the inheritance. The institution in charge of succession procedures in the Czech Republic are notaries acting as court commissioners, as per a separate Act on Special Court Procedures (as opposed to the Czech Code of Civil Procedure).

The question of the applicable law – i.e., whether Czech, German, or Slovak law – must be addressed before everything else, i.e., before Czech substantive inheritance law need even be reviewed. It is governed by the Czech Act on International Private and Procedural Law (Act No. 91/2012 Coll., which also came into force on 1 January 2014 – hereinafter the “IPPL Act”). Sec. 73a of the IPPL Act refers to the EU Succession Regulation (Regulation (EU) 650/2012) which applies since 17 August 2015 throughout the EU with the exceptions of Denmark and Ireland (it also never applied in the United Kingdom, even before Brexit at the beginning of 2020) to jurisdictional matters. The EU Succession Regulation has also superseded a number of bilateral agreements on conflicts of law in matters of succession within the EU. As for the Czech Republic and a third-party EU member state or Ireland and Denmark, the issue of the applicable law is answered by Sec. 74 et seq. of the IPPL Act (e.g. for a piece of real property in Prague owned by a testator from Turkey, the U.S., or the UK).

For cases of succession arising on or after 17 August 2015, jurisdiction within the EU is exclusively determined by the EU Succession Regulation, according to which jurisdiction always lies with the courts (or, e.g. in Austria, Hungary, Slovakia, and Czechia, not with the courts but with notaries in the role of court commissioners) at the deceased’s last place of habitual residence.

In practice, this means that only one single succession procedure within the EU will be necessary for any and all property situated in the EU. All other items forming part of the estate within the EU (such as bank accounts, real property, boats etc.) will be transferred to the heirs based on the European Certificate of Succession (ECS).

As per Regulation (EU) 1191/2016, birth and marriage certificates issued in the EU which must be presented upon applying for an ECS, waiving the inheritance, or accepting the inheritance, may be issued in duplicate in the country of origin (i.e., in Germany) and then require no translation or apostillization in other EU member states. Alternatively, in most EU member states (including the “old” EU states such as France, Spain, or Germany), but also in Switzerland, in former Yugoslavia (of which only Croatia and Slovenia are EU member states), in Turkey, and even on Cap Verde or in Moldavia, such certificates may be issued without translation or apostille under an international treaty of 1976.

If an ECS has been issued, it works in lieu of a national certificate of inheritance, and it thus makes no economic sense to apply for both. For use in other countries within the EU, the ECS need not be apostilled, but it must be furnished with a certified translation (note that this requirement does not clearly follow from the EU Succession Regulation; still, most EU member states will insist on a translation). In principle, a national certificate of inheritance such as a German Erbschein or an Austrian Verlassenschaftsentscheidung, could be used in other EU member states within the purview of the EU Succession Regulation, i.e., such a deed could be presented before a register court, land registry, or cadastral office (cf. the ending of Recital 69 and Article 39 of the EU Succession Regulation), though smooth and automatic recognition and acceptance without further requirements is not guaranteed for all EU member states. Having said that, the ECS itself does not work all that well, e.g. if assets belonging to the estate such as real property or bank accounts have not been entered in it, against the expectations and requirements of national land registry or banking laws (which is why ECS without property specifications are very cumbersome to enforce e.g. in Czechia, Slovakia, Lithuania, or Hungary).

If the circumstances of succession are problematic, the ECS may be replaced with a notarial settlement of the inheritance, to be drawn up in accordance with the EU Succession Regulation and furnished with a certified translation.

In the case of so-called “ex-pats”, one must take into account the following: if the deceased drew up no last will and testament but made a foreign country his primary state of residence and then dies there, then his succession is no longer governed by the inheritance law determined based on the expat’s citizenship, but the inheritance law of the country in which they had their habitual residence at the time of death. It is not always easy to draw clear lines here, especially in the case of individuals who entertained several places of residence (though the EU Succession Regulation recognizes only one place of “habitual residence”), or in the case of dementia-ridden pensioners who spent the twilight of their lives in a nursing facility in another EU member state.

If the habitual residence at the time of death was in Ireland, in Denmark, in Switzerland, in the UK, the U.S., Turkey, or other non-EU states, it is highly advisable to pay a local legal expert a visit, especially if the estate includes real property or bank accounts in the EU (outside Denmark or Ireland) – because in such an event, ancillary probate will have to be conducted in the country in which such property is situated. This also applies vice versa, i.e., in the case of an inheritance in the EU where to-be-inherited property is situated in Ireland, Denmark, or third countries: again, an ancillary probate process is then triggered in those countries.

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