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Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
Succession under Maltese law is mainly regulated by the Civil Code (Chapter 16 of the Laws of Malta), which regulates testate succession, the drafting of wills and intestate succession. The Civil Code provides that any person, except those that are subject to an incapacity in terms of the code itself, may dispose of or receive property by will.
Under Maltese law, an individual may decide to dispose of their assets:
- through the express disposition of the law in the form of a will;
- by operation of the law, if no will is presented; or
- through a trust.
Since 1 August 2015, the Succession Regulation (650/2012) governs the estate of any person having assets or any other connection with EU member states that have adopted the regulation.
What rules and procedures govern intestacy?
The Civil Code provides for intestate succession, a pre-established succession mode which is granted – in the order and according to the rules laid down – in favour of:
- collateral relatives;
- the spouse of the deceased; and
- the government of Malta.
What rules and restrictions (if any) apply to the governing law of a will?
Under the Civil Code, individuals are generally free to dispose of their worldly belongings as they please. By means of a will, one can bequeath property by singular title (known as a legacy) and institute universal heirs. It is important to note that regardless of freedom of disposal of one’s belongings, the Civil Code provides for a reserved portion in favour of the descendants and spouse of the deceased person, should any exist. In this regard, the reserved portion due to the children of the deceased is:
- one-third of the value of the estate, if there are fewer than five children; or
- half of the value of the estate, if there are five or more children.
The surviving spouse is entitled to:
- one-fourth of the value of the estate in full ownership, if the deceased is also survived by children or other descendants; or
- one-third of the value in full ownership, if there are no children or other descendants.
The surviving spouse is also entitled to the right of habitation in the property occupied as the principle residence of the surviving spouse at the time of death.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
A will may be either public or secret and may only be opened once the testator has died and a copy of the death certificate is presented to a notary public. A public will is drawn up in front of a notary public and two competent witnesses; it is then registered in the Public Registry, and only the testator’s personal details are recorded. A secret will is typically drawn up by the testator and handed to a notary who, in the presence of two competent witnesses, draws up the act of consignment and deposits the original will in the registry of the Civil Court.
Validity and amendment
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
If the validity of a will is contentious, the courts will make a final decision on its validity. The courts will make such a decision only if court proceedings are initiated claiming that the will is invalid. The claims must be based on any of the grounds of invalidity stated in the law.
How is the validity of a will established in your jurisdiction?
Maltese law contains numerous disability provisions, which render a person incapable of disposing by or receiving under a will. As a general rule, a ‘major’ (ie, a person who has reached 18 years of age) is capable of performing all the acts of civil life, including the making of a will. The law further provides that persons who have attained the age of majority but have a mental disorder or other condition that renders them incapable of managing their own affairs, or who are insane or prodigal, may be interdicted and incapacitated from carrying out certain acts.
The disability of persons interdicted is either general (ie, covering all acts) or specific. Persons who are interdicted are deemed incapable of making wills unless the interdiction is on the ground of prodigality, in which case the court ordering the interdiction may authorise the interdicted person to dispose of their property. Similarly, persons who are incapable of understanding and volition or are of unsound mind at the time of the will’s creation are also deemed incapable of making a will, even if not interdicted.
If the person subject to incapacity makes a will, such will is null notwithstanding that the person’s incapacity may cease before their death. The law also lays down numerous disability provisions regarding those who cannot receive by will, among whom are persons deemed legally unworthy of receiving by will, owing to some fraudulent or wilfully wrongful behaviour towards the testator. Further, where a tutor or curator has been appointed to administer the property of another person, the tutor or curator cannot benefit under a will made by the person under their charge during the tutorship or curatorship, unless the tutor or curator is the ascendant or descendant, brother, uncle, nephew, cousin or spouse of the person making the will. Likewise, members of monastic orders or religious corporations of regulars may not dispose by or receive under a will after taking vows in their religious order or corporation, unless they are lawfully released from their vows.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
To be recognised as valid under Maltese law, a will made abroad must follow the form prescribed by the law of the country of origin. The rules regarding the reserved portion are considered to be of a public policy nature; therefore, dispositions that are contrary to those rules will not be given effect in Malta if the will is challenged.
What rules and procedures govern:
(a) The appointment of estate administrators?
The appointment of an administrator is not mandatory. The administration of the estate of a deceased person may be vested in:
- a testamentary executor;
- the heirs (in absence of an executor); or
- a court-appointed executor (with the consent of the heirs or on the demand of any interested party).
(b) Consolidation and administration of the estate?
Administration procedures are similar to probate, a legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under a will that has been declared valid by a probate court.
Probate administration is not in itself regulated in terms of Maltese law. Nevertheless, Maltese law contains certain formalities and procedures which must be observed when drawing up wills and disposing of an inheritance. As such, there are provisions addressing:
- the validity of wills;
- opening and publication of wills;
- testate and intestate succession;
- testamentary executors;
- vacant inheritance and the appointment of curators;
- the reserved portion; and
- the rights of the surviving spouse.
(c) Distribution of the estate to heirs?
Where no testamentary executor is appointed in a will, heirs of the testator step into the shoes of the testator by default, in terms of the legal representation of the estate. Thus, the heir acquires the deceased’s property subject to the same burdens to which it was subject prior to death. Where an administrator or testamentary executor has been appointed, they must draw up an inventory of the inheritance. They will:
- exercise and promote the rights of that inheritance by answering any judicial claims brought against the inheritance;
- administer under the obligation to deposit any moneys included in the inheritance or received for the sale of movable or immovable property; and
- render account to the person concerned.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
Where a testamentary executor or administrator takes on the administration of the deceased’s inheritance, they are entrusted with the power to collect sums owing to the estate and sell property thereof to satisfy the debts of the estate or discharge legacies. Such power is limited to instances of absence or insufficiency of funds in the estate, and the executor may not dispose of the estate arbitrarily. Further, the testamentary executor must render an account of their administration, which is secured by the hypothecation of the executor’s property.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
There are no inheritance or gift taxes in Malta. Further, no duty is chargeable on the transfer causa mortis of movable property. However, duty is chargeable on the transfer causa mortis of immovable property and of securities.
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