An inheritance declaration is one of the most important steps in probate proceedings. As it is generally irrevocable, it is important to understand its legal effects before deciding whether to accept or renounce an inheritance.
Introduction
During probate proceedings, every heir may face an important decision – whether to accept the inheritance or renounce it. This decision is expressed through an inheritance declaration, which may have lasting legal consequences, particularly where the estate includes real estate, land, business interests, or debts.
Although Croatian law provides that a person becomes an heir upon the death of the deceased, the inheritance declaration continues to play an important role in probate proceedings. Below, we explain what an inheritance declaration is, the different types of declarations, when it may be made, and under what circumstances it may be challenged.
What Is an Inheritance Declaration?
Legal theory and Croatian case law define an inheritance declaration as an express, unilateral, strictly formal and irrevocable declaration of intent by which a person states whether they wish to acquire the inheritance right, or another right of an inheritance-law nature arising upon the death of the deceased (a positive inheritance declaration), or whether they do not wish to do so (a negative inheritance declaration).
Croatian inheritance law adopts the so-called ipso iure system of succession, under which a person becomes an heir automatically upon the death of the deceased, by operation of law. This means that inheritance rights are acquired regardless of whether the heir has submitted an inheritance declaration.
However, this does not mean that the inheritance declaration is without significance. On the contrary, it enables the heir to decide whether to retain the inheritance rights already acquired by operation of law or to renounce them.
Positive and Negative Inheritance Declarations
As no person can be compelled to become an heir, the death of the deceased gives rise not only to the right of inheritance but also to the right to renounce the inheritance.
If an heir declares that they renounce the inheritance, the law provides that they are deemed never to have been an heir. Such a declaration has retroactive effect from the moment of the deceased's death (ex tunc).
Because of these significant legal consequences, every decision regarding an inheritance declaration should be considered carefully.
Must an Inheritance Declaration Be Express?
One of the fundamental characteristics of an inheritance declaration is that it constitutes an express declaration of intent. In other words, it must clearly indicate whether the person wishes to accept or reject the inheritance.
Nevertheless, the Croatian Inheritance Act recognises certain exceptions.
For example, Article 132 of the Inheritance Act provides that an heir who has already disposed of the estate or part of it may no longer renounce the inheritance. In such circumstances, the law presumes that the inheritance has been accepted, even if no formal declaration has been made.
Croatian case law also takes the view that the substance of the declaration is more important than its title. Accordingly, a statement by an heir that they "do not accept the inheritance" may, according to its content, be regarded as a declaration of renunciation of inheritance, even if the statutory terminology has not been used.
For this reason, legal scholars increasingly question whether the traditional definition of an inheritance declaration should be adapted to reflect contemporary judicial practice.
The Legal Nature of an Inheritance Declaration
An inheritance declaration constitutes a unilateral legal act.
Since it is a legal act, the general rules of the Croatian Civil Obligations Act governing the validity of legal acts apply accordingly.
This means that an inheritance declaration may be voidable or null and void where the statutory legal grounds are fulfilled.
In What Form Is an Inheritance Declaration Made?
An inheritance declaration is a strictly formal legal act.
It may be made orally for the record before the court; by submitting a written declaration bearing a notarised signature.
Where the declaration is made by an authorised representative, the power of attorney must also contain specific authority to submit the inheritance declaration and comply with the formal legal requirements.
Who May Submit an Inheritance Declaration?
An inheritance declaration may be submitted by a legally competent person either personally or through an authorised representative.
The authorised representative does not have to be a lawyer. Croatian case law confirms that an heir may also be represented by another person who satisfies the statutory requirements for representation.
If the heir lacks legal capacity, the declaration is submitted on their behalf by their legal representative, subject to the approvals required by law.
When Is an Inheritance Declaration Invalid?
For an inheritance declaration to be valid, several legal requirements must be fulfilled.
First, it must be submitted by a person legally entitled to make such a declaration.
Secondly, its content must be lawful, possible, and sufficiently certain. For example, an inheritance cannot be renounced only in part, nor may the renunciation be made subject to a condition.
Furthermore, the declaration must be made in the legally prescribed form.
Finally, it must be made freely, without defects of consent such as duress, fraud, or fundamental mistake.
Can an Inheritance Declaration Be Revoked?
One of the most important characteristics of an inheritance declaration is that it is irrevocable.
The Croatian Inheritance Act expressly provides that a declaration accepting or renouncing an inheritance cannot be revoked, a position consistently confirmed by Croatian case law.
Nevertheless, where circumstances exist that affect its validity, such as fraud, duress, or fundamental mistake, the declaration may be challenged in the appropriate court proceedings.
Until When Can an Inheritance Declaration Be Made?
Under the Croatian Inheritance Act, an heir may renounce the inheritance by submitting a notarised written declaration or by making a declaration for the record during the probate proceedings, up until the first-instance decision has been issued.
Once that deadline has expired, the opportunity to submit the declaration ceases. It is therefore important to make a timely decision on whether to accept or renounce the inheritance.
Conclusion
Although an inheritance declaration may appear to be merely a procedural formality in probate proceedings, its legal consequences may be significant. Since it is generally irrevocable and the decision to accept or renounce an inheritance may have long-term legal consequences, it is advisable to understand its legal effects before making such a declaration.
This is particularly important where the estate includes real estate, substantial debts, multiple heirs, or other complex legal relationships, as obtaining timely legal advice may help avoid future disputes and unintended legal consequences.
