The will

Writing a will allows the testator to dispose of his assets for the time when he will no longer be alive, to decide who will inherit what. Thus, it is possible to assign a certain property to a chosen person, to benefit a child in relation to others, to protect the wife, to help an association or to assign an asset to a friend who would otherwise not have had a vocation to the succession.

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Attention!

The freedom of disposition of the one who wrote the will is not complete, because the law stipulates that certain heirs will necessarily receive a minimum share of the patrimony. These are called reserved heirs. They are the surviving spouse, the descendants (children) and the privileged ascendants (parents).

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In the absence of a will, the property of a deceased person is passed on to his or her heirs in an order imposed by law. They are called legal heirs. The first to inherit are the deceased's children or their descendants and, in their absence, the deceased's parents and siblings. The next to inherit are the ordinary ascendants (grandparents) and the last category is that of the ordinary collaterals (uncles, aunts and first cousins ​​of the deceased). The surviving spouse is entitled to a share of the inheritance regardless of which of these potential heirs he or she comes into competition with.

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Good to know!

The will may include not only provisions regarding assets but also other last will provisions, such as:

• tasks imposed on the testator,

• disinheritances, i.e. the removal of legal heirs from the inheritance,

• the appointment of a testamentary executor, i.e. a person to oversee the execution of the testamentary provisions,

• the revocation of the provisions of a previous will,

• the recognition of a child born out of wedlock.

 

The authentic will (made by a notary public) is the safest form of will, both from a legal point of view, being more difficult to cancel, and materially, because it is kept in the notary public's archive and has multiple advantages over the handwritten one.

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Advantages of an authentic will

• organization of properties according to the testator's wishes;

•  ensuring the secrecy of the will - the notary assists and keeps the will, its contents being revealed to the heirs after the testator's death;

•  the ability to modify or revoke it at any time;

• challenging it, through the courts, is difficult because the authentic act has public authority

• the will enjoys the probative force of authentic acts and, as such, the burden of proof lies with the one who challenges it;

• if the will is lost, a duplicate can be requested from the office of the notary public who authenticated it.

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Who can dispose by will?

A will is valid only if the testator had discernment and his consent was not vitiated. 

Minors who have not reached the age of 16 and persons placed under judicial interdiction are completely incapable of making a will.

Minors who have reached the age of 16 can dispose by will but only for half of what they could dispose if they were adults.

A minor protected by guardianship does not have the capacity to dispose in favor of the guardian as long as the latter has not been discharged from management.

 

Who can benefit from the will?

Any person, even a minor or incapacitated, can receive an inheritance, with the exception of unborn natural persons and legal persons that have not come into existence.

Particular attention must be paid to the exact name of the legatees and, respectively, to the identification data of associations and foundations.

In case of ambiguity over the identity of the legatees, the inheritance may be impractical or may not be enjoyed by the right person.

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Testamentary execution

To ensure the fulfillment of his last will provisions, the testator may designate one or more testamentary executors. Testamentary execution begins to produce effects from the death of the testator

 

The procedure for authenticating a will

The testator dictates his or her will to the notary, who takes care of writing the document and then reads it to him or, as the case may be, gives it to him or her to read, expressly mentioning the completion of these formalities. If the testator had already drafted his or her last will and testament, the authentic will will be read to him or her by the notary.

After reading, the testator must declare that the document expresses his or her last will and testament.

During the authentication, the testator may be assisted by one or two witnesses.

In order to inform persons who justify the existence of a legitimate interest, the notary who authenticates the will is obliged to register it, immediately, in the National Notarial Register kept in electronic format. Information regarding the existence of a will may only be given after the death of the testator.

 

Can a will be modified or revoked?

Until the last moment of life, the testator has the right to review the testamentary dispositions through a subsequent manifestation of will that has the effect of revoking the total or partial dispositions made previously.

Express voluntary revocation is the revocation that results from a declaration of the testator contained in a document drawn up in testamentary or authentic form. Tacit voluntary revocation is the manifestation that, without having been expressly declared, undoubtedly results from certain acts or deeds subsequently committed by the testator. For example, a will concluded subsequently tacitly revokes the previous one if it contains contrary or incompatible provisions.