In Ukraine the adult person is free to determine the heirs through a testament which must be dully notarized. The notarization procedure is similar for Ukrainian citizens and for foreigners. It includes the following steps:
- the testator comes to the private or state notary and explains how he/she would like to split the assets between the heirs
- the notary drafts the testator's willingness on two special blanks and the testator signs them both
- the notary stamps both signed documents
- immediately after signing the testament is subject to registration in the State Inheritance Register
Once all steps are completed, the testament becomes valid and person gets his/her copy. The procedure usually takes up to 1 hour.
The testator can change or revoke the testament without notifying the heirs or any other persons. New testament substitutes the previous one if it covers the same assets.
However, sometimes the testament cannot guarantee that inheritance will be distributed in accordance with the testator's willingness. The Ukrainian legislation provides a special regime of inheritance for some categories of heirs – the compulsory share. It is one half of the estate which an heir is entitled during intestate succession. Such special regime protects those heirs who are less legally secured compared to other heirs.
What is important: the compulsory share prevails over the testament. It means, that the person with the compulsory share will inherit part of the estate even if he/she is not mentioned in the testament.
The persons entitled for the compulsory share are as follows:
- minor children
- retired or medically disabled:
It also should be noted, that upon general rule, the heir with the compulsory share will inherit his/her share in every object. For example:
A testator has 10 real estate objects. He makes a testament in favor of the third person. Also, testator has four heirs (of first line) within intestate succession.
One heir has the compulsory share. If there would be no testament, his share would be 1/4. But when the testament exists, his share is 1/8. Therefore, he will inherit 1/8 part in each of 10 real estate objects.
The person mentioned within the testament will inherit 7/8 part in each of 10 real estate objects.
Abovementioned example shows how dramatically the compulsory share may change the distribution of the assets. It is obvious that in the mentioned case the heir under the testament will have limited rights over the 10 real estate objects. There are only two possible ways to change the "general rule":
- enter into agreement with the heir possessing the compulsory share (but sometimes it is impossible due to personal/emotional reasons)
- court proceeding (which is usually a long process)
Separately it should be noted, that while providing the compulsory share Ukrainian legislation also establishes possibility to remove such heir from the inheritance process under special conditions. Also, there are few more legal instruments which may be used to neutralize not only heir's right for the compulsory share, but also to protect from the creditor claims after testator's death. The most favourable instrument depends on the circumstances and may be recommended after detailed analysis of situation.
Therefore, every person who is willing to make testament in Ukraine shall be aware about the compulsory share. It will help to choose the best way to distribute the assets between the heirs.