Succession
Law

Testate succession applies where the deceased would have left a proper written last will. The laws regulating testate succession largely try to respect the last wishes of the testator, save some rules that 'force' the testator to dispose portion of his patrimony to his or her spouse and children. Where there is no valid will, or where the testator has not disposed of the whole of his estate, or where the heirs-institute are unwilling or unable to accept the inheritance, or where the right of accretion among the co-heirs does not arise, intestate succession takes place, wholly or in part, by the operation of law. The law lays down rules on how the assets of an intestate deceased person are to devolve.

A will unica charta is will made by the spouses in one and the same instrument. The testators may agree that they will leave to each other the ownership of all their property or the greater part thereof, and put a condition that if one of the testators revokes such bequest he shall forfeit any right in his favour from such joint will. This is valid at law.

No person is bound to accept an inheritance devolvedupon him. Inheritance may be accepted unconditionally or under benefit of inventory.

The short answer is 'no', and the longer answer is 'yes', albeit with a different name. What in the past was called 'leġittima', today we call it 'the reserved portion'.

The reserved portion is the right on the estate of thedeceased reserved by law in favour of the descendants and thesurviving spouse of the deceased. This is the law that provides for a portion over the inheritance to these people, independently of the last wishes of the testator. The reserved portion due to the children (whether conceived or born in wedlock or conceived and born out of wedlock or adopted) shall be one-third of the value of the estate if such children are not more than four in number or one-half of such value if they are five or more. Where a deceased spouse is survived by children or othe rdescendants, the surviving spouse shall be entitled to one-fourth ofthe value of the estate in full ownership. If there are no children or descendants , the surviving spouse shall be entitled to one-third of the valueof the estate in full ownership.

There are very special cases where an heir is pronounced to be unworthy to receive by will. This include an unworthiness at law to received the reserved portion. This law refers to those people who:

a) wilfully killed or attempted to kill testator or his or her spouse; or

b) charged the testator, or the spouse, before a competent authority, with a crime punishable with imprisonment, of which he knew the testator, or the spouse, to be innocent; or

c) compelled, or fraudulently induced the testator to make his will, or to make or alter any testamentary disposition; or

d) prevented the testator from making a new will, or from revoking the will already made, or suppressed, falsified, or fraudulently concealed the will,

A legacy is the bequething of a specific object in the will (say a piece of land).

The basic rule is that if the object constituting the subject of a legacy belongs to someone other than the testator, the legacy is null and void.

However, the law allows for an exception: article 696 (1) of the Civil Code specifies that if the testator declares in his will that he knows that the object so bequethed is not his property, but the property of others, then, the will is completely legal. In such a circumstance, the heir (who is legally responsible for delivering the legacy and giving it to those who are entitled to receive it under the will) may choose either to purchase the object in order to transfer it to the legatee, or to pay such legatee the value of that object.

The surviving spouse of a deceased person is entitled by law (article 633(1) of the Civil Code) to the right of habitation over the property occupied as the principal residence by the said surviving spouse at the time of the death of the predeceased spouse, where the same tenement is held in ful lownership or emphyteusis by the deceased spouse either alone or jointly with the surviving spouse.

However, if the surviving spouse remarries, or enters into a public deed of cohabitation according to law, the right of habitation ceases to exist.

A testator may dispose of his property causa mortis (after his death) by a public will or by a secret will. A public will is the classic will, that done in front of a notary and signed in the presence of two witnesses. A secret will may be printed, type-written or writtenin ink either by the testator himself or by a third person, signed by the testator, then closed and sealed. A secret will is valid only if it is delivered by the testator to a notary (who shall present it to the court of voluntary jurisdiction), or, in the presence of the judge or magistrate sitting in the court of voluntary jurisdiction, to the registrar of such court.

In a will one can attach a condition to a testamentary disposition. The conditions can be plenty, but a condition restraining a first or a subsequent marriage is invalid, and the testamentary disposition will be considered as if the condition is not there. However, a stipulation stating that a right of usufruct, use, or habitation, or in a pension or other periodical payment is only to be enjoyed for that period of time until that person is a bachelor or spinster, or a widower or widow, is valid at law.

The action for demanding an inheritance, or a legacy,or the reserved portion, whether in testate or in intestate successions, shall lapse on the expiration of ten years from the day of the opening of the succession (the time of the death of the deceased).

Where the deceased is not survived by any of the persons entitled to succeed under the rules laid down in the law, the inheritance shall devolve upon the Government of Malta.

That is, the Government will have a right on the inheritance if the deceased does not have a spouse, descendants, ascendents, a collateral (brothers and sisters, whether of the half or full blood or adopted and the descendants of predeceased brothers or sisters, of the half or full blood or adopted) in whatever line but not beyond the twelfth degree.

The EU Succession Regulation (EU 650/2012) ("the Regulation"), sometimes known as Brussels IV, was enacted to standardize succession rules across EU member states. Individuals who own assets in EU member states that have signed up to the Regulation face the default position that the succession of such assets will be controlled by the law of the country where the individual was habitually resident when he sied. Alternatively, such a person may opt to apply the law of their country to the succession and administration of their property in their will. Except for the United Kingdom, Ireland, and Denmark, all EU member states have signed on to the Regulation. The Regulation applies to the will of those who died on and after 17 August 2015.