The legal concept of inheriting by will (the document is also known in Common Law countries as “Last Will and Testament”) is regulated thoroughly in the Bulgarian Succession Act (hereinafter SA).
The testament is a unilateral statement of intent of the testator and the SA in its Art. 15 explicitly prohibits it to be written as a contract, where the two parties make correlative testaments for each other or for third parties. Such a will, in the form of a contract with mutual obligations, would be considered void due do its unlawfulness (in the hypothesis of Art. 26, para. 1 of the Obligations and Contracts Act).
The Bulgarian SA foresees certain prerequisites for the testator and for his capacity to make provisions for the distribution of his property after his death, namely, as per Art. 13 of the SA:
- To have reached 18 years of age at the time of the drafting of the Last Will,
- To not have been declared in full interdiction due to dementia;
- To be able to act reasonably.
The Last will provides the testator with the legal possibility to make arrangements for the distribution of his or her estate and property in whole. There are certain restrictions and namely concerning the right of the reserved share – the part that he cannot dispose of by the power of the Last will because of the rights of descendants, parents or spouse (Art. 28, para. 1 in relation with Art 14 of the SA). This reserved part cannot suffer any infringements through testamentary dispositions or donations. The testator can make dispositions only about the so called disposable share – the assets that remains after the reserved part has been taken into consideration (Art. 28, para. 2 SA). The sum of the reserved share is provisioned in the Succession Act in its Art. 29 as a fraction of the entire estate.
The law makes a distinction between testamentary dispositions referring to the whole estate or referring to only a fractional part of it (the so called “general testamentary dispositions”), which make the beneficiary, to the benefit of whom they are made, an “heir”, and testamentary dispositions which refer to specific properties (the so called “partial testamentary dispositions”), which confer the capacity of a legatee. This distinction is important because of the possibility of modalities (a duration) – Art. 17, because of the possibility of reduction of the testamentary dispositions and the liability of the heir, respectively the legatee, before creditors of the testator.
There are two possible forms for the validity of the testament – a testamentary disposition can be notarial and handwritten.
- A notarial testamentary disposition shall be executed by a notary in the presence of two witnesses, the so called “instrumental witnesses” (Art. 24, para. 1 SA). It is prohibited that certain persons, listed in Art. 584 of the Civil Procedure Code, to be witnesses. These are, for example, interdicted persons, illiterate persons who cannot read or write in Bulgarian, any person related to the notary public or other persons, participating in the procedure. The notary will is drafted according to a strict formalized procedure – the testator should verbally express his or her will to the notary, who should transcribe it as is, after which he reads the text to the testator in the presence of the witnesses. The notary public notes all the formalities that have been conducted and he notes explicitly the date and place of the testament. After that the testament statement is signed by the testator, the witnesses and the notary.
- The handwritten testament must be entirely written by the hand of the testator himself, to have the date of its drafting set out and be signed by the testator. The signature must be placed after the text of the testamentary dispositions. After the drafting of the handwritten testament the document can either remain with the testator, be given to a third person or to the notary for safekeeping. When the testament is submitted to the notary for keeping, the document itself should be placed in a sealed envelope, onto which the notary drafts a protocol, signed by the person who submits the testament for keeping. The protocol is noted in a special registry book (Art. 25, para 2 of the SA). In this case the testament can be taken back only by the testator in person and not by an authorized third party.
Disclosure of the handwritten will
The person who has possession of a handwritten will must, as soon as he or she is aware of the testator`s death, request its disclosure by the notary (Art. 27, para. 1 SA). The legislator has attempted to provide a warranty for the disclosure of the testament in para. 2 and namely – any person with legal interest may require from the regional judge for the region, where the estate was opened for distribution, to fix a term for the presentation of the will, in order to have it announced by the notary. De facto however there is no sanction for not presenting the will and once can safely conclude that this more or less a moral obligation than a legal one sensu stricto.
The announcement itself is performed by the notary public, who drafts a protocol where the status of the will is described and a note is made of its unsealing. The protocol is signed by the person who presented the will and the notary himself. The paper, on which the will was written, countersigned by the above persons on each page shall be attached to the protocol. If the testament had been kept by the notary as according to Art. 25, para 2, the aforementioned actions are performed by the same notary, who has been keeping the will, whereby the same ex officio should invite the heirs, who on their side should request the announcement of the will.
Practice has shown that complications often arise in the case of general testamentary dispositions whereby often rather than not the heirs have no concrete knowledge about the real value of the assets and obligations left by the testator. These problems present themselves quite clearly when it comes to movable properties, for which there is no designated register, and immovable property, when it concerns real estate, acquired before 2001 (because the electronic cadaster and real estate register did not function prior to that year.) or acquired as heritage. It is also possible that the inheritance has more obligations in it than assets. In that case it is recommendable that the succession is accepted by inventory, which can be done within three months after an heir has come to know that the estate has been opened. This term can be prolonged by the regional judge for three more months. The purpose of the acceptance by inventory is the limited liability of the heir – up to the extent of the received inheritance (Art. 60, para. 2 SA). The acceptance by inventory does provoke certain obligations for the heir – a prohibition to alienate immovable properties up to five years, movable property – three years, has to manage inheritance possessions with the same level of care he takes of his own possessions and activities, the heir should also provide accounts to the creditors and bequests of the management of the inheritance possessions. The consequence with failing to oblige these regulations results in the complete liability of the heir.
The content of the Last Will
The content of the Last Will includes the testamentary dispositions of the testator with regard to his property in the benefit of a certain person(s) as well as the property which is the matter of these dispositions. The testamentary dispositions can be made in the benefit of a person who is an heir by the power of the law and in the benefit of a third party. The person, in whose benefit the testator makes the disposition should capable of inheriting. The natural persons, the state and the legal persons are capable of inheriting. Per argumentum a contrario from Art. 2 SA – one can inherit on intestacy or through appointment of will if begotten at the moment of the opening of the estate for distribution and born able to live. The legal persons can only inherit through will under the condition that the legal person was already existent at the time of the opening of the distribution of the estate. There is one exception the that rule – foundations (non-profit organizations) can be incorporated with the testamentary disposition itself according to art. 33, para.1 of the Non-profit Organizations Act.
The testamentary disposition will have no effect when the individual, in favour of whom it has been made, dies before the testator. In its Art. 21 the SA stipulates that the testator can name one or more beneficiaries, who should inherit in the stead of the primary beneficiary, should the latter die before the testator, refuses to accept the will or is unworthy to inherit (the so-called fideicomisio substitution). The testator cannot, however, obligate the beneficiary to keep and transmit after his death the inheritance received, be it entirely or partially, to a third person. The legatee can accept what has been appointed to him by the power of the testament even if he would waive the succession.
The Last Will can contain not only dispositions regarding the estate of the deceased but also immaterial dispositions, whereas the latter have little to no legal value. The same is true when the testamentary dispositions aim to oblige the beneficiary for certain actions. The testamentary disposition for a certain property is invalid when the testator is not the owner of the latter at the moment of the opening of the distribution. On the other side, a disposition with property that was not in the ownership of the testator at the time of the drafting of the will is completely valid, provided he was the owner at the time of the opening of the distribution. A bequest of a certain quantity of items determined by their genus, although none have been found in the estate of the deceased at its opening for distribution, shall be valid. A testamentary disposition cannot disinherit a heir by law – such a disposition is invalid and the heir is still capable of inheriting by intestacy.
The right of a reserved part is thoroughly described in Art. 30 – 37 of the SA –where an heir, where an heir, whose reserved share is infringed, exercises the above right with regard to persons, who are not intestate heirs, it shall be necessary for him to have taken the inheritance by inventory.
Revocation of the will
The Last Will can be explicitly revoked with a new testamentary disposition or a notarial act, in which it is explicitly stated that the latter revokes entirely or partially the prior testamentary dispositions (Art. 38 SA).
A subsequent will, which does not explicitly revoke the previous, revokes only these provisions which are incompatible with the new one. A testament that is revoked with a subsequent one remains revoked even if the new one does not come into effect because the beneficiary would happen to die before the testator proves to be unworthy or waives the inheritance.
According to Art. 41 of the SA the entire or partial alienation of a bequested possession shall repeal a bequest whose object has been alienated, even when possession is recovered by the testator or when the act of alienation is invalidated for any reason, other than defect in consent. The same is also valid when the testator processes or modifies the bequested possession in a way that makes it lose its previous form and intended use.
Nullity of the Will
As per Art 42. of the SA a testamentary disposition shall be considered null if:
- It has been made in favour of a person who does not have the right to inherit by will;
- When the drafting of the will has been conducted without observing the procedure for a notarial testament or the prerequisites for the form of the handwritten testament have not been fulfilled;
- when a testamentary disposition or the sole motive, expressed in a will, due to which the disposition has been made, are contrary to the law, the public order and the good morals; the same is also valid when the condition or encumbrance are impossible. In these cases the nullity of the will can be claimed anytime.
A testamentary disposition is voidable:
- When it has been made by a person, who at the time of drafting had not been able to bequest, and
- When it had been made due to a mistake, an act of violence or fraud.
A mistake in the motive shall be a reason for the abolition of the testamentary disposition when the motive is expressed in the very will and the disposition has been made only because of this very motive. A claim for abolition of a testamentary disposition shall be extinguished upon the expiry of three years from the day, on which the claimant has come to know about the reason of voidability, and in any case upon the expiry of ten years from the opening of the estate for distribution. Where gaining knowledge precedes the opening of the estate, the three year term shall start running from opening of the estate.
The purpose of appointing an executor of the Last Will is to ease the distribution of the estate left by the deceased. The executor is appointed by the testator, whereby the consent of the executor to be assigned is also needed. The executor of will must take inventory of the estate, after inviting the heirs and legatees to attend the process. He/she shall enter into possession of the estate and manage it, as far as these actions are required for the implementation of testamentary dispositions. For his actions and efforts he is due compensation from the heirs and legatees. The executor cannot alienate properties except where necessary and with the permission of the regional judge, who decides after hearing the heirs. In cases of negligence, lack of capacity or acts, which are incompatible with the required level of trust, the regional judge can remove the executor of the will from his task.
The author of this article, Ms. Irina Konstantinova, is a legal associate at Law Firm Ruskov and Coll. in Sofia and specializes in the field of Inheritance Law.