The legislator in our country has given everyone the opportunity to dispose of his property as he sees fit. This possibility is not limitless, as to preserve the interests of the next of kin, the law provides certain restrictions. If you feel that you have been wronged in the distribution of property, you may want to contact a lawyer to file a lawsuit for a reserved portion of your inheritance.
What constitutes a heritage asset?
The heir may make bequests or gifts freely within the limits of the available portion of the estate. This is the mass of the estate which is obtained after deducting the reserved portion of the heirs. The reserved portion of an inheritance may not be prejudiced by a donation made in respect of a person who is not heir at law or by a donation which increases a share of the inheritance.
Descendants (children, including adopted children), spouse and parents have a reserved part of the inheritance. Their reserved part is different depending on the hypothesis you are in. For example: if the heir did not leave a spouse but only descendants, their reserved share is ½ if there is one child and ⅔ if there are more children. In the case of a spouse and descendants, the spouse’s reserved portion shall be equal to the reserved portion of each child, the disposable portion being ⅓ in the case of one child, ¼ in the case of two children and ⅙ in the case of more children.
The portion reserved for parents is ⅓ when the heir has no spouse. If, in addition to the parents, the heir has a spouse, the latter’s reserved portion is also ⅓. In case of inheritance by a spouse only, the reserved share is ½.
NB: The aforementioned share concerns the whole of the heir’s estate and not individual property rights.
How is a reserved and disposable portion of property determined?
Before determining the exact amount of the reserved or disposable portion of an estate, the total mass of the estate must be established – i.e. all the property at the heir’s disposal at the time of death. The assets are valued at market value, deducting from the estate the heir’s debts and the increase in the estate contributed by the heirs. Covenants and donations are added to what is received. If the heir has bequeathed all or a fractional part of his property, no succession mass shall be formed.
Case for the recovery of a reserved part of an inheritance
After the death of the testator, the heirs who are entitled to a reserved portion may bring an action against the donee or beneficiary of the will. We advise you to contact an attorney who will prepare the necessary documents and assist you with the court case.
The right to recover a reserved part arises only where the reserved part has been damaged. The gift or bequest itself is valid and should be reduced only by so much as is necessary to fulfil that reserved part. In order to exercise the right to recover a reserved part of an inheritance against a person who is not heir at law and has not been summoned to inherit, the inheritance must first be accepted by inventory.
According to the interpretative practice of the Supreme Court of Cassation: the acceptance of the inheritance by inventory is a prerequisite for bringing the action only when gifts or private testamentary dispositions (wills) are reduced, but not when universal wills (the whole estate or a fractional part thereof) are involved.
Bequests are reduced first in order, then donations. It is important to know that in the case of an estate for which a real part cannot be determined and a reserved part recovered, the estate remains in the estate and the legatee or donee is entitled to monetary compensation.
NB: The right of recovery of a reserved portion shall not be extinguished by the death of the heir entitled to the reserved portion. His heirs can file a lawsuit in court or intervene in an already filed case.
Lawsuit for retention of title in purchase and sale
In practice, in order to avoid the revocation of the donation due to a reserved portion, the heirs make fictitious sales to disguise the donation. In this case, the transaction is null and void and the court will declare it null and void. Here the burden is on the plaintiff to prove the disguised donation by using evidence of the method of payment, the amount paid, the type of payment and so on. Testimony is also an important factor in proving a simulated sale. The time limit for bringing a claim for a simulated transaction is 5 years from the discovery of the succession.
What is the statute of limitations for bringing an action to recover a reserved portion of an inheritance?
You can file a lawsuit to recover a reserved portion of your inheritance within 5 years from the date of your heir’s death. In the case of wills, the period begins to run on death if there is a will made and accepted. If the heirs have not become aware of the will, the 5-year limitation period starts to run from the moment of becoming aware of the will or its registration with the Registry Agency. The legal action is brought against the person who has been enriched by the testamentary dispositions.
In case the retained part of your inheritance has been encroached upon and you wish to take legal action to recover your rightful property, you should consult a good lawyer specialising in real estate and inheritance law. Law Firm Legal Frame gr. Sofia offers defense and legal services in cases of inheritance, family law and real estate.
