Drawing up a testament
You need to draw up a testament if you wish that your property is to be distributed in some other manner than what is specified in the law.
However, drawing up a testament is also advisable when you have direct descendants that you wish to treat equally. For instance, you can use the testament to rule that the spouse of a beneficiary will have no marital rights to the property and assets obtained through the testament.
A testament is a document you can use for determining how your property, i.e. your estate, will be distributed after your death.
Nobody is forced to draw up a testament. If a deceased person has left no testament, their property is divided between heirs as provided by law. You should take into account the fact that a direct descendant is always entitled to a lawful share regardless of a testament. The lawful share amounts to one half of the value of the share of the estate that, according to the order of succession, devolves on the direct descendant if no testament had been drawn up.
Anyone aged 18 years or over can draw up a testament. A 15-18-year old may draw up a testament concerning the assets they have earned with their own work.
As the testator, you can also include provisions other than those concerning the distribution of property. You can include your thoughts in the testament and order the text to be read out loud at the inventory of the estate or make its contents known in some other way, for instance.
A testament is a strictly formal legal act. Therefore, a testament must be drawn up carefully according to a procedure provided by law.
You can draw up the testament by yourself. If your situation is complicated, however, it is advisable that you turn to a lawyer specialised in the right to inherit or some other legal specialist in drawing up the testament.
As a rule, the testament document must be drawn up in writing. The testament must include the testator’s name, profession, personal identity code, current address, and the date and place of signature.
The testator must sign the testament in the simultaneous presence of two qualified witnesses at least 15 years old.
The following are not qualified to serve as witnesses:
- the testator’s spouse,
- children, grandchildren and their children,
- parents, grandparents, step-parents, stepchildren,
- brothers, sisters, half-brothers, half-sisters and and their spouses,
- the beneficiaries of the testament and their close relatives.
Common-law partners are not disqualified to bear witness, but using them as witnesses is discouraged.
The witnesses must be made aware of the fact that the document they attest is a testament, and they must sign an attestation statement. With their signature, the witnesses verify that, based on their understanding, the testator has legal capacity, i.e. they understand the consequences of their actions and are able to make decisions.
The testator does not need to present the contents of the testament to the witnesses.
The most common testament used by marital or common-law spouses and partners in a registered relationship is known as a reciprocal testament.
Spouses use the reciprocal testament to leave their property to each other. If the testament has specified that the surviving spouse will have full ownership to the property, and that the property is to be evenly distributed between the closest heirs of both of the testators after the death of the surviving spouse, the surviving spouse will receive the entire property under the testament. However, direct descendants are entitled to their lawful share immediately after the death of the spouse who has perished first. The children will receive the rest of the property after the death of the widow/widower. For instance, childless siblings can draw up a reciprocal testament to benefit one another.
A testator can use a universal testament to give to the benefactor their entire property, a part of their property or what is left after the fulfilment of legal and other obligations. The universal beneficiary under a testament will become a shareholder in the decedent’s estate and have the obligation to take estate inventory.
A testator can use a special testament to determine how their property, such as personal belongings, should be distributed, even in very high detail.
A mutual right of possession testament can be used to rule that the beneficiary will get control and access to the property but may not sell or transfer it.
Under exceptional circumstances, a testament can be drawn up orally, in which case the document will be referred to as an emergency testament.
An emergency testament may only be drawn up orally owing to a compelling physical or mental handicap. The conditions must be such that the testator would, according to their personal understanding, have no time for drawing up a standard testament before their death.
For example, complete inability to move can prevent the person from drawing up and signing a testament in writing. However, this does not entitle disregarding the standard form unless the testator is at an immediate risk of death. In the presently described situation, a testament may be formulated by having some other person draw up and sign the document on the request of the testator.
The testator must inform two qualified witnesses present in the situation of the contents of the testament in detail. Witnesses are required to take notes in support of their attestation regarding what is ordered by the testament and what were the compelling reasons for drawing up the testament orally.
A testament drawn up in writing that the testator has been unable to personally sign but which witnesses can attest is also referred to as an oral testament.
The emergency testament is valid for three months since the end of the illness or another compelling reason. If you would like to retain the validity of the provisions of the emergency testament you have drawn up, you must draw up a standard written testament within three months since the end of the emergency conditions and sign it with two qualified witnesses simultaneously present.
If you have direct descendants and wish that they will inherit your property after your death, no testament will be necessary.
If you do not have direct descendants or wish that your entire property or its part will be distributed in a manner other than according to the provisions of the Code of Inheritance, you must draw up a testament.
- If you are childless but have a marital spouse, your spouse will inherit your property for the duration of their life. After your spouse’s death, a distribution of estate is carried out, and the share of the widow’s/widower’s estate is transferred to your relatives in accordance with the Code of Inheritance. Cousins do not inherit. If you have no heirs, and you have not drawn up a testament, the estate will pass to the state.
- Your common-law partner does not have marital right to your property; therefore, if you wish to leave an inheritance to your common-law partner, you must do so with a testament.
- You need to draw up a testament if you wish to leave an inheritance to your marital spouse in addition to the share of your joint property they are entitled to in the distribution of matrimonial property.
- You can use a testament to ensure that your property will not end up to the spouse of your child if the couple divorces; instead, your child will retain the total share of the inheritance they have received. You can do this by specifying in your testament that the spouse of the beneficiary shall have no marital right to any property received by the beneficiary under the testament.
- Based on your family situation, it might be smart to clarify the division of an inheritance with a testament. For instance, if the family includes children from the parties’ previous marriages and the spouses have both joint and separate property, a testament may make it easier to distribute the inheritance.
- If you wish to donate your property to charity, you must do so with a testament. You can use your testament to donate assets to, e.g. non-governmental organisations, associations, sports clubs, parishes and municipalities.
The testament can be legally kept at home. The best way to ensure the safety of the document is to keep it in a safe deposit box at a bank. The bank will ensure that the testament will not be destroyed or end up in the wrong hands.
Only a single copy of the testament may be drawn up. This is because a testament is presumed to have been revoked if no original copy has been kept at the time of the death of the decedent and only a copy or a signed copy held by a third party is found.
You do not have to tell anyone about the testament. However, to ensure that your will is respected, you should inform your close relatives and beneficiaries that you have a testament so that they will know that they must take this into account after you have died. Also let the people close to you know where you keep the testament.
If you buy the service of a legal affairs office or lawyer for drawing up a testament, you should agree on the price in advance. The price varies according to the amount of work required.
While drawing up a simple testament can cost anything between around a couple hundred to a few hundred euros, drawing up more complicated testaments will cost more.
The offices collect a separate fee for the attestation of the testament.