Corresponding Author: Hajredin
Ku�i
E-mail: [email protected]
INTRODUCTION
If a person renounces the inheritance, it is
considered as if he had never been an heir, say those who know the right of
inheritance. In Kosovo, especially women give up inheritance. Waiver of
inheritance is provided for in Article 130 of the Law on Inheritance in Kosovo (Anggadwita, Profityo,
Alamanda, & Permatasari, 2019). Paragraph 1 of this article states: "The heir
can renounce the inheritance with a statement given to the court until the
hearing on the inheritance is over (Bănescu, 2022)." in addition to the court, an heir can also
waive the inheritance at the notary if the inherited property is not contested.
(Saliu & Ismaili,
2022) "Our law has enabled the heir to renounce the
inheritance before the court until the inheritance hearing is over. Also, I can
give up before the notary when it comes to the hereditary property that is not
disputed", it says (Mappong & Lili,
2023). Waiver of inheritance is a fundamental right
guaranteed by the Constitution and international conventions. "Because
this is a fundamental right of humanity, guaranteed both by the Constitution
and by international conventions that any person who does not want to inherit
the inheritance of the testator can renounce the inheritance", it shows
that the renunciation of the inheritance can have and the consequences for the
heir. If a person renounces the inheritance, it is considered as if he had
never been an heir (Basset, 2018).
METHOD
During the preparation of
this paper we have used the proper scientific methods so that this paper is
finalized and takes the proper scientific approach, and why the paper is in
short points (Snyder, 2019).
Thus, the methods used in the work are: research methods, comparative methods,
descriptive methods, historical methods, inductive methods, deductive methods,
and other methods that have helped us to finalize the work in question.
RESULTS AND DISCUSSION
Waiver
Of Inheritance
With the
death of a subject of the right, according to the Law on Inheritance, it is
stated that: the property of the same after his death is passed to the heirs
(living subjects) either through the law or through legal works if he has left
any legal deeds (contract for maintaining eternal, gift contract or will) the
owner of the property (in this case the testator).�(See: Law No. 2004 / 26 Law on Inheritance of
the Republic of Kosovo). The person who inherits at the
beginning of the understanding that he is an heir must ask himself the
question: Is receiving an inheritance better for me?
Can you refuse to accept an
inheritance?
If so, who would inherit my share?
Thus,
according to the questions, it should be known that if you will be the heir of
the decedent's property, you will also be the bearer of the obligations that
the decedent had while he was alive, for example: (any debt to any creditor,
etc.) (Mirshekari, Ghasemi, &
Fattahi, 2020). Thus, based on the inheritance law, the heir enables the heir to
understand that he is the heir of the decedent's property, he can declare that
he waives the rights and obligations that he would have as an heir, and
specifically the inheritance law this it is called disinheritance. (Yes there. Article 130). Waiver means to
give up, or give up the right to something. It is not unusual for someone to be
named in a will and the last will to give up the rights or property given to
them in the will. The reasons can range from financial to personal. State laws
are in place to allow this. No one can be forced by the terms of a will to do
something he does not want to do.�(See:
https://info.legalzoom.com/renunciation-mean-3826.html. Received on
07.11.2019).
Waiver of
inheritance is exercised only when the person is informed that he is the heir
of an inherited property (Jashari & Osmanaj, 2016). Every person has the right to renounce the hereditary property
that comes to him by inheritance. The right to give up inherited property
cannot be presumed, because it is linked at any moment to the future will of
the heir (Stalder & Kirschbaum, 2012). At the moment of complete relinquishment of the inheritance, the
heir's hereditary position changes radically because now he loses the
hereditary legal authorizations that, iso jure, he had acquired at the time of
the testator's death. Waiver of inheritance can only be made after the death of
the testator, because the heir acquires the right to inherit at the time of the
death of the testator (�ivojinović &
Đurđić-Milo�ević, 2015). For this reason, renouncing the right of inheritance before the
death of the testator would not produce any legal effect, because the right
that has not yet been born and does not exist cannot be removed.�(See:
https://info.legalzoom.com/renunciation-mean-3826.html. Received on
07.11.2019).
The right to
renounce the inheritance is limited by the deadline until the end of the
inheritance review session (Ellul, Pagano, & Panunzi,
2010). In the law, relinquishment is also provided as an inheritance
right that, if not exercised by the heir within a certain period, will be
realized by his heirs, always if the latter wish. In an extended interpretation
of the legal provisions that refer to the acceptance of inheritance, we can say
that in this regard, the 20-year term of seeking inheritance can be considered
as a term within which the heir accepts or renounces the inheritance.
However, this
is a very long term which does not create security both for the inherited
property and for other heirs who may benefit from the waiver by an heir based
on the right of augmentation. When the heirs do not appear to renounce the
inheritance, it can be assumed that the testator has no heirs or that they are
in difficulty and are unaware of the existence of the estate.
In this case,
the court of the country where the inheritance is opened, mainly on its own
initiative, sets a deadline which we can say refers to article 127 of the LKT
entitled "Unknown Heirs", which states that: If with the passing of a
year from the day of the announcement, if no heirs appear, the inherited
property is handed over to the municipality, but with this the heir who would
appear later is not deprived of the right to hand over the inherited property
or the part that. belongs to him.�(Law No. 2004/26).
Things
to consider before accepting or giving up an inheritance:
1.
Before
accepting or renouncing an inheritance, you should seek legal advice; talk to
your lawyer so he can do all the due diligence before making a decision.
2.
The
consequences of giving up an inheritance are not always the same; this may not
only affect you, but may affect any potential heirs; your solicitor will be
able to advise you accordingly.
3.
Do not
perform any action on the property to be inherited that could be considered as
acceptance of the inheritance.
4.
As a result
of the law in force in Kosovo, disinheritance may harm the inheritance of other
potential heirs if they intend to accept it.
5.
Do nothing
until you are absolutely sure of your decision as the waiver and acceptance of
a legacy are irreversible when signed in front of a Notary.
It will always be easier for the heirs if the deceased has left
his estate in order, with instructions to be followed and no hidden debts.�(https://www.pellicerheredia.com/en/inheritance/renouncing-to-inherit
& Received on: 10.11.2019).
Declaration
of renunciation of inheritance
Waiver of
inheritance is a unilateral expression of the will which can be given in the
inheritance procedure and the same is recorded in the minutes of the examination
of the inheritance. The heir can waive the inheritance with a statement to the
court until the hearing on the inheritance is over.�(Yes there. Article 130 p. 1.) The heir can
renounce the inheritance silently, without any special formality, or expressly,
by means of a statement that will be presented to the Basic Court of Kosovo in
this case or the notary.�(https://www.studiolegalemetta.com/en/refusing-to-inherit
& Received on: 09.11.2019).
The heir may
renounce the inheritance with a statement given to the court until the end of
the inheritance hearing. The declaration of renunciation of inheritance is a
unilateral legal act of the heir, by which he expresses his free will that he
will not inherit, that is, he will not receive rights and obligations from the
inheritance (Selmani, 2015).
The
declaration of renunciation of inheritance can be made in two ways. The first
is when such a statement is made during the procedure and recorded in the
record, while the other is made remotely, i.e. when the person writes such a
statement, certifies it in court or any other body and submits it to the
competent body. the court, while the inheritance procedure takes place.�(Law No. 2004/26)
The heir who
has regularly declared the renunciation of inheritance cannot later revoke this
declaration, "The declaration of renunciation of inheritance or acceptance
of inheritance cannot be revoked". (The Law of Inheritance has made
it possible to cancel the declaration of relinquishment of inheritance. This
is also said by Professor Podvorica). The declaration of
disinheritance is irrevocable. It cannot be revoked, but it can be canceled in
court proceedings if it is proven that the relinquishment of the inheritance
came as a result of violence, as a result of coercion, as a result of
deviation, etc.
Reasons
for renouncing inheritance
An heir's
reasons for disowning may vary: it may be that they would prefer to benefit
other heirs; or because they do not want to inherit from the deceased for
personal reasons.
In the law of
inheritance, wills and trusts, a disclaimer of interest (also called a waiver)
is an attempt by a person to waive his legal right to benefit from an inheritance
(either by will or by deed) or through a trust. "If a trustee does not
accept an interest in property that would otherwise become trust property, the
interest does not become trust property."�(See: John H. Langbein) There are a number
of reasons why a person might want to avoid an inheritance, particularly if the
proceeds would only go to their creditors, or if it would drastically affect
income tax liabilities (Allen & Carletti, 2013). At common law, a person disclaiming his interest would be
treated as dead before the trust took effect. This was a reasonable option if
the disclaimer was a successor heir whose children would inherit in his place
and without the imposition of a gift tax.
The
disclaimer must be in writing and filed with the court overseeing the
disposition of the estate within a statutory period of time, which is usually
nine months after the death of the person from whom the disclaimer is to
inherit, or twelve months after the creation of a trust from a living person (Weisbord, Horton, & Urice, 2022). An affidavit may be required in which the disclaimer must swear
that he did not receive any consideration (ie compensation) for the disclaimer.
Liability must also occur before the denying party has enjoyed any benefit of
the trust or inheritance. Many jurisdictions now have statutes that prohibit a
denial when the individual is bankrupt or receives certain public benefits
because of low income.
A disclaimer
of interest is irrevocable. It must be a complete and not a partial denial. Such
a disclaimer may be made by a legal guardian on behalf of a person who lacks
the capacity to make the disclaimer himself, but this usually requires a
finding by the court that the disclaimer is in the ward's best interests.
Cancellation
of the declaration of relinquishment of inheritance
The
declaration of renunciation of inheritance is canceled and not revoked. The
heir who renounced the inheritance may request the annulment of the declaration
if it was given by threat, violence, fraud, or deception.
The
institution of cancellation of the declaration is allowed by law when the
declared will of the heir contains deficiencies regarding the declaration of
renunciation of inheritance.
In such
cases, the heir has renounced the inheritance not because his true will was to
renounce the inheritance, that is, not to inherit anything from the inherited
property, but he gave the statement under the influence of threats or fraud.
And this makes the will of the heir deficient.
The
declaration of the heir containing deficiencies is not valid. Yes, this
position also comes from the provisions of the LTK. The heir who gave a
statement can request the annulment of this statement if it was given with
threats, violence, fraud or deception (Article 135.2 of the Civil Code).�(Podvorica)
The request
for the annulment of the declaration can be submitted by the heir who renounced
the inheritance (Vlahna & Ku�i, 2023). He can again become the holder of the right if the inheritance
court approves his request and cancels the declaration of relinquishment of
inheritance. In order to cancel the declaration of relinquishment of the
inheritance, the heir must submit a request to the court for the examination of
the inheritance. The statement given in the minutes of the court where the
inheritance is examined will be considered valid, if the heir during the
examination session declares that he renounces the inheritance, regardless of
the fact that in legal doctrine a certain form is also required to produce
legal effects.
Regarding the
time of submission of the request, two legal situations arise. The first, where
the request for cancellation of the declaration is presented before the
examination of the inheritance and the facts are not disputed, then the
decision regarding the cancellation of the declaration of renunciation of the
inheritance is taken by the competent court for the examination of the
inheritance. Well, when the facts presented in the request are considered, the
inheritance court will instruct the heir in civil proceedings, while the
inheritance proceedings will be suspended until the end of the civil
proceedings.
If the
request for annulment was submitted after the end of the inheritance procedure,
then it will be decided in the civil procedure.
CONCLUSION
The heir is never obliged to simply
accept an inheritance. As it happens, the law also provides for the possibility
of renouncing an inheritance or accepting it subject to beneficium inventarii
(ie accepting an asset without obligation beyond the discounted assets). A
change in the law means that the declaration of acceptance subject to
beneficium inventarii or the relinquishment of an inheritance will now also be
made before a notary public of the individual's choice. Previously, this could
only be done by a declaration made to the clerk of the court office in the
court of first instance where the inheritance had fallen.
Depending on what the last will and
testament of the deceased says; and the applicable law of inheritance, assets
and properties may be distributed among other heirs or may be divided among the
children of the disinherited person. They, like the person who renounced the
inheritance, have the right to refuse the inheritance as well..
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