Succession

Estate constitution

What property constitutes an individual’s estate for succession purposes?

An individual’s estate, for succession purposes, may consist of any asset to which the deceased has legal title, which may be either solely or partly owned, both being eligible to form part of an individual’s estate to be transferred over to the deceased’s successors under Maltese law. Differences in procedures in the distribution of the deceased’s assets are taken into consideration by the notary handling the transaction, with immovable property being transferred by causa mortis contracts and monies and stocks being transferred over by respective bank forms to be submitted, while other movables are to be decided upon between the respective heirs at their own discretion if not assigned in the will.

Debts may also constitute a part of the estate proportionately according to the testator’s wishes.

In terms of co-ownership, the general principle is that the co-owners who are holding a part of the property each for a period of three years from the passing of the opening of the succession are deemed to be co-owners of each item of the property held commonly.

Disposition

To what extent do individuals have freedom of disposition over their estate during their lifetime?

Individuals have no restrictions on their freedom of disposition over their estate throughout their lifetime per se, but certain conditions are applicable to interdicted or incapacitated persons. If the individual suffers from a mental disorder or some other condition as defined in the Mental Health Act, rendering him or her incapable of managing his or her own affairs, he or she can be declared as being interdicted or incapacitated through an application filed by persons defined in article 521 of the Civil Code by a court in its voluntary jurisdiction, and a curator may subsequently be appointed.

To what extent do individuals have freedom of disposition over their estate on death?

In Malta, according to article 615 of the Civil Code, an individual who has descendants is precluded from freely disposing of his or her estate. According to article 616 of the Civil Code, in cases where the deceased had four children or fewer, his or her descendants are entitled to one-third of his or her estate. In cases where the said deceased had five or more children, his or her descendants are entitled to half of his or for her estate. The deceased is obliged to assign to the surviving spouse an entitlement of one-third of the estate if there are no children, and one-quarter if there are children in full ownership. Reserved portions are worked out after all debts and costs are deducted from the deceased’s estate accordingly.

Intestacy

If an individual dies in your jurisdiction without leaving valid instructions for the disposition of the estate, to whom does the estate pass and in what shares?

The law stipulates that individuals who die ab intestato shall have their estate granted in favour of ‘descendants, the ascendants, the collateral relatives and the spouse of the deceased, and the Government of Malta’ (article 789 of the Civil Code). For structural purposes, intestacy rules can be split in two.

 

Regulations on inheritance when the deceased is survived by his or her spouse and children
  • In this case, half of the estate is transferred over to the spouse and the other half is transferred over to the children equally. In the case that the deceased’s children do not survive him or her, the children of the deceased’s children would inherit their grandfather’s share.
  • In the case that the deceased has no children, the spouse takes the entirety of the inheritance.

 

Regulations on inheritance when the deceased is not survived by his/her spouse, children and their descendant
  • In the case where the deceased is only survived by his or her parents and siblings, the estate is split half to the parents and half to the siblings in equal shares, with the law excluding the remotest relatives from being included (such as a grandparent).
  • If the deceased is not survived by any of the above but has second cousins who survived him or her, then the estate will be split in equal shares between them.
  • If the deceased is not survived by any of the persons mentioned above or any other relatives, then the estate will devolve in favour of the government of Malta.
Adopted and illegitimate children

In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?

Adopted children or children born out of wedlock are treated the same way as legitimate children in terms of the disposition of one’s estate, whether alive or dead, testate or intestate.

Distribution

What law governs the distribution of an individual’s estate and does this depend on the type of property within it?

According to EU regulation 650/2012, which is applicable to the succession of persons who died on or after 17 August 2015, only one law has jurisdiction over the distribution of an individual’s estate. The applicable law, which was transposed into Maltese legislation through Act XVI of 2015 of the Civil Code, states that the applicable jurisdiction that is to govern an estate is chosen on the location of the person’s last habitual residence at the time of death. The last habitual residence at the time of death is determined by the authority dealing with succession, which should make an overall assessment of the circumstance of the life of the deceased throughout his or her living years and subsequently at the time of death. The assessment should include factual elements, in particular the duration and regularity of the deceased’s presence in the state concerned and the conditions and reasons for that presence. The habitual residence thus determined should reveal a close and stable connection with the state concerned. The country that is deemed to have jurisdiction in governing one’s estate will also have authority on litigious matters pertaining to the said estate, such as renunciation or claims.

In the case that an individual is a citizen of one country yet favours the distribution of his estate to be managed by his or her national law, or any other nationality in possession, one is at full liberty to do so upon direct stipulation in his or her will.

The non-mandatory issuance of the European Certificate of Succession, which was also introduced upon EU Regulation 650/12, facilitates such processes to heirs, legatees and other members in the administration of an estate to prove their status and exercise their rights and powers in other member states without any further special procedure being required.

Formalities

What formalities are required for an individual to make a valid will in your jurisdiction?

A will made in Malta must be either public or secret.

  • A public will is made in front of a notary and published by the said notary to the public registry. The contents of the will are not delved into upon publication; hence only the details of the testator are saved. The public will is subsequently recorded in its full capacity in the acts of the notary, only to be opened after the testator’s demise.
  • A secret will is a sealed testament written by the testator or a third party; hence its contents are not known at all by anyone other than the testator himself. The sealed document is then presented to the notary, who delivers it to the Court of Voluntary Jurisdiction in the presence of a magistrate and a signed declaration that it contains the will of the named testator. Secret wills are also to be opened on the demise of the testator.
Foreign wills

Are foreign wills recognised in your jurisdiction and how is this achieved?

A will made outside of Malta will have effect in Malta if the will is drawn up and authenticated in the same way as prescribed by the law of its country of origin. There is no formal manner of addressing foreign wills under the Maltese jurisdiction. The customary practice is that the heirs advise their respective notary of such will, who will validate it and act upon it if it is the most recent will made by the de cujus.

Administration

Who has the right to administer an estate?

Administration of an estate is usually done by the heirs or successors, but in certain circumstances an executor may be appointed to make sure that the estate is disposed according to law and that the will is given full effect. An executor may be appointed by the testator (hence being a testamentary executor) or he or she may be court appointed with the consent of the heirs (hence being a court-appointed executor).

How does title to a deceased’s assets pass to the heirs and successors? What are the rules for administration of the estate?

Upon the acceptance of an inheritance, which is not obligatory and can be express or implied, the title passing on to a deceased’s heirs varies according to the type of asset being transferred over. For immovable property, a causa mortis deed must be published and registered by a notary public, which is sufficient to constitute proof of title, either being in the property’s entirety or by universal title. On movables specified directly in a will, the will itself is proof of title along with a death certificate of the said deceased. The heirs proportionately split other non-specified assets of the testator.

There are no specific rules for administering the estate, but in cases of a testamentary executor a certain procedure is applicable. The executor draws up an inventory of the inheritance and subsequently adheres and promotes the rights of the said inheritance.

Challenge

Is there a procedure for disappointed heirs and/or beneficiaries to make a claim against an estate?

The disappointed heir may file an application before the First Hall of the Civil Court for his or her case to be heard.