The probate procedure is conducted after a person’s death for the purpose of settling their estate. Through the inheritance procedure in Serbia, it is determined what constitutes the deceased’s estate and who the legal heirs are. The probate procedure in Serbia is initiated before the competent court, which subsequently appoints the competent public notary to conduct the probate proceedings in Serbia.
A motion on how to start probate in Serbia may also be submitted through an attorney acting as an authorized representative, who may undertake all procedural actions on behalf and for the account of the parties, including submitting inheritance statements. In the following sections, we will explain some of the most important concepts and address the most common questions related to the probate procedure.
What is probate in Serbia?
The probate procedure, or probate hearing, is the procedure for determining the estate of a deceased person and includes:
- determining what constitutes the decedent’s estate (movable and/or immovable property);
- identifying the heirs;
- determining the rights belonging to the heirs, as well as to other persons (such as legatees).
One of the most common questions among heirs concerns the meaning of the probate procedure and how to start probate in Serbia. Pursuant to the law, the probate procedure is initiated ex officio by the court as soon as the court becomes aware that a person has passed away. However, in practice, it is more common for the probate procedure to be initiated upon a motion filed by the parties, i.e. the heirs themselves.
Who initiates the probate procedure and when does it begin?
After a person’s death, the fact of death is entered into the death registry by the competent registrar. Subsequently, in accordance with the law, the registrar should submit the death certificate to the probate court. Upon receiving the extract from the death registry, the court issues a decision instructing the competent public notary to prepare the death report.
Automatic initiation of probate by the court
As explained above, the court should initiate the probate procedure in Serbia ex officio. For this to occur, the court must first be informed of the fact of death of the deceased person. However, in practice, it is not always the case that the court initiates the procedure automatically. More commonly, the probate procedure is initiated based on a motion filed by the parties.
When heirs file a motion
A motion to initiate the probate procedure may be filed by one of the heirs, either personally or through an authorized attorney specializing in inheritance law.
The motion should include, among other things, information known to the heir regarding what constitutes the deceased’s estate, documents supporting such claims, as well as information on other potential heirs.
Upon receiving the motion for conducting the probate procedure, the court appoints the competent public notary who will conduct the inheritance procedure in Serbia.
Notary vs Court in Probate in Serbia
In Serbia, the probate procedure is conducted by a competent notary – in the notary probate Serbia process, the notary schedules probate hearings, summons the heirs to attend, collects documents for probate procedure from the heirs regarding the deceased’s estate, and ultimately issues the inheritance decision.
Who Has the Right to Inherit? – Legal and Testamentary Heirs
According to the Inheritance Law, inheritance can be conducted either by law or based on a will.
If the deceased has made a will, inheritance will be carried out in accordance with the testament, i.e., the last will of the deceased. If no will has been made, inheritance will proceed according to the law.
Inheritance by Law (Order of Heirs)
When it comes to inheritance by law, it is important to note that inheritance follows the order of heirs.
The first order of heirs includes the deceased’s children and spouse, who inherit in equal shares. If the deceased has no descendants, the spouse does not inherit in the first order, but in the second order.
The second order of heirs includes the deceased’s spouse and the deceased’s parents and their descendants. In this case, the spouse inherits half of the estate, while the other half is inherited by the deceased’s parents.
If a parent of the deceased cannot or does not wish to inherit their share, that share is inherited by the deceased’s siblings.
If the deceased has no legal heirs, the estate passes to the state, i.e., the Republic of Serbia, and such property becomes state property.
Compulsory Heirs
In practice, it is often important to pay attention to who qualifies as compulsory heirs. Compulsory heirs are those entitled to a portion of the estate that the deceased could not freely dispose of – known as the compulsory share.
The compulsory heirs include the deceased’s:
- descendants, adopted children, and their descendants,
- spouse,
- parents and adoptive parents,
- siblings,
- grandparents and other ancestors.
It is also important to note that the law specifies the size of the compulsory share for each compulsory heir. In this regard, the compulsory share for descendants, adopted children and their descendants, and the deceased’s spouse is one-half, while the compulsory share for other compulsory heirs is one-third of the portion they would inherit according to the legal order of inheritance.
Inheritance by Will – Validity and Challenges
A will or testament is a personal declaration of the deceased’s intent, through which they allocate their property in the event of death. For a will to be fully valid and enforceable, it must be made in accordance with legal requirements.
In this regard, there are different types of wills, each with specific formal conditions.
The types of wills in Serbia include:
- holographic will;
- written will before witnesses;
- court-certified will;
- consular will;
- international will;
- maritime testament;
- military testament;
- oral will;
- notarial will.
Each of these types of testament has prescribed formal requirements, so it is recommended to engage an inheritance lawyer when drafting a will or assessing its validity, in order to ensure the rights of legal heirs in Serbia and the proper recognition of testamentary heirs and inheritance rights in Serbia.
Documents Required for Probate Procedure
When submitting a motion to initiate the probate procedure, it is necessary to provide documentation proving the status of the heirs, as well as documents that can establish the full extent of the deceased’s estate.
Thus, when filing a motion to start the probate procedure, it is necessary to include, among others:
- extract from the death register;
- proof of assets;
- proof of kinship.
To make the probate procedure in Serbia as efficient as possible, heirs can engage a legal representative – a lawyer – through a special power of attorney. This power of attorney must be notarized, and the representative must be authorized to give inheritance statements. In this way, heirs do not need to appear at probate hearings, as the entire procedure can be conducted via the lawyer. In such cases, the power of attorney must also be submitted when filing the motion.
Certain documents are obtained by the notary ex officio, meaning the notary also has the option to officially contact relevant state authorities to obtain the necessary documents. This ensures that all required paperwork for probate in Serbia is properly gathered.
FAQ – Most Common Questions About the Probate Procedure
Depending on the complexity of the case, the probate hearing may take a few months from the submission of the motion, but in some cases it can take over a year.
No, heirs do not need to attend hearings in person. They can authorize a lawyer to represent them during the probate procedure in Serbia.
If the deceased had outstanding debts, the heirs are liable only up to the value of the inherited assets. In other words, heirs are not personally liable for the debts beyond the value of their inherited share.
How the Probate Hearing Works – Step by Step
Summoning Heirs and Scheduling the Hearing
After a motion to initiate the probate procedure is submitted to the competent court, the court issues a decision appointing a notary to conduct the probate procedure. Once the case is assigned, the notary sends a summons to the legal heirs and their legal representatives, if any.
The summons informs the heirs that they must provide the notary with all documents in their possession regarding the estate, such as bank account details, an extract from the real estate cadastre, vehicle registration certificates, and other relevant documents.
Establishing the Facts and the Deceased’s Assets
During the probate hearing in Serbia, the notary will first identify the heirs who are present, collect their personal data, and review their identification documents. The notary will also inquire whether the heirs have any knowledge of whether the deceased made a will, and whether they are aware of other potential heirs.
If the notary finds that the circle of summoned heirs is incomplete, a public notice will be published in the Official Gazette for one year. The purpose of this notice is to allow other potential legal heirs to come forward and assert their rights during the probate hearing process in Serbia.
Statement on Accepting or Renouncing Inheritance
At the hearing, the notary will request the present heirs to provide an inheritance statement, i.e., to declare whether they accept or renounce the inheritance.
In the case of accepting the inheritance, there are several ways an heir can accept it:
- If the heir gives an explicit statement accepting the inheritance;
- If a legal representative or lawyer gives the statement on behalf of the heir;
- If the heir does not renounce the inheritance before the conclusion of the first-instance procedure, it is considered that the inheritance has been accepted;
- If the heir has disposed of the estate or a part of it.
On the other hand, when renouncing the inheritance, it is important to note that an heir can only renounce the inheritance on their own behalf. In practice, it is also common for an heir to renounce the inheritance in favor of another heir, which involves specific considerations that must be taken into account before making such a declaration.
Agreement Among Heirs (Inheritance Division Agreement)
According to the law, any heir can request an agreement on the division of the estate. It is crucial that such an agreement is properly and thoroughly drafted to avoid potential disputes.
In addition to dividing the estate, an heir may transfer their inheritance share to another heir. In this case, a contract for the transfer of the inheritance share is concluded. Such a contract must be notarized by a notary in the form of a solemn document.
How Long Does Probate Take in Serbia?
Depending on the complexity, the probate procedure in Serbia can be very short – in some cases, a single hearing may be sufficient to establish both the circle of heirs and the deceased’s estate. However, in certain situations, the probate procedure may take significantly longer, such as when there is a dispute among heirs, when additional time is needed to collect evidence of assets, or when the exact number of heirs is unknown.
Another factor that can extend the duration of the probate procedure is the implementation of measures to preserve the estate, such as ordering temporary measures to secure the estate. One example is sealing the deceased’s apartment, which involves a series of necessary steps.
Additionally, if heirs reside abroad, a complicating factor can be delivering documents to their address, especially if the heir’s address is unknown.
Common Problems and Disputes During the Probate Procedure
Although the probate procedure in Serbia is generally clearly regulated by law, in practice it often raises numerous disputes among heirs. The most common problems arise in situations where unresolved family relationships exist.
One of the most frequent sources of disputes is the will – its validity, interpretation of its contents, or claims that it was made under pressure or at a time when the deceased was not capable of freely expressing their intent.
Disagreements also frequently occur regarding the division of assets, especially when heirs have different expectations or when certain assets are not clearly defined (e.g., real estate, joint investments, the deceased’s debts).
Due to these circumstances, probate procedures can often become lengthy and complex. Timely understanding of legal rights and obligations, as well as professional assistance, can significantly contribute to a more efficient resolution of the procedure and reduce the risk of additional disputes.
What If an Heir Is Abroad?
As noted, a specific situation arises when heirs are located abroad. In such cases, the most efficient approach is to engage a legal representative who can act on behalf of the heirs during the probate hearing in Serbia.
If an heir was born abroad, it is important to ensure that documents obtained in a foreign country (e.g., a birth certificate) are translated into Serbian by an authorized court translator. In addition, it is often necessary to obtain an Apostille for Serbia so that the document can be used before the notary and the court.
In any case, to avoid delays in the probate procedure, it is highly advisable to hire an inheritance lawyer who, through a special power of attorney for probate in Serbia, can represent the interests of heirs abroad, including giving the inheritance statement.
Inheriting Real Estate – Special Rules and Obligations
A very common situation in practice is when the estate includes real estate (apartment, house, land), which raises additional issues that require attention.
First and foremost, it is important to note that only the inheritance decision serves as the basis for registering property ownership in favor of the heirs.
Additionally, it is necessary to submit a tax declaration to determine the inheritance tax.
Legal Consequences of the Probate Decision
Once the probate decision in Serbia is issued, it is necessary to obtain a clause of finality after the appeal period has expired. Upon the finality of the probate ruling, the procedure for registration in the cadastre is conducted, and the inheritance tax obligation arises.
Furthermore, if the deceased held a bank account with funds, the heirs must have a final probate decision in order to be recognized as legal heirs and exercise their rights.
This article is for informational purposes only and does not constitute legal advice. If you need additional information regarding the topic in question, please feel free to contact us by email at office@ncrlawyers.com or by phone at +381677049551.
