JUDr. Martina Ďurďovič

A servitude concerning the use of a flat is usually established for a particular person. In principle, it is a personal servitude and this right related to the use of an apartment thus expires with the death of the authorized person at the latest; transferral of the servitude burdening the apartment to the heir is excluded, as a rule. However, the servitude can be expanded to also include an heir. You will find details regarding the servitude burdening the apartment in question in the servitude establishment contract. This contract should also be studied in order to obtain a comprehensive assessment of the situation.

If you intend to request the termination of a servitude concerning the right to use an apartment for an authorized person who is not a deceased person, it will be necessary to agree this step with the authorized person via the conclusion of an agreement with that person regarding the termination of the servitude concerning the right to use the apartment. This contract will subsequently serve as the basis for the deletion of the servitude for the right to use an apartment from the public record, i.e. from the Cadastre of Real Estate. However, we would recommend entrusting a lawyer with the writing of such a contract so that the subsequent registration proceedings for the deletion of the right from the Cadastre of Real Estate takes place without any problems. We will of course be happy to help you with the writing of such a contract in our office. The registration of the creation of, change to or termination of such a right in the Cadastre of Real Estate is made by an entry performed pursuant to Section 11 of the Cadastre Act. As far as the registration proceedings are concerned, the application to make an entry into the Cadastre of Real Estate is submitted solely on the prescribed form.

With regard to an intention to request the cancellation of a servitude concerning the right to use an apartment for a deceased person, in this case it will be necessary to file a proposal for the registration of the deletion of an expired right from the Cadastre of Real Estate, to enclose an officially certified copy of the death certificate and also a written declaration made by the owners of the apartment with requisites pursuant to Section 66, par. 3 of cadastral decree 357/2013 Coll. stating that the termination of the servitude concerning the right to use an apartment occurred due to the death of the authorized person. The request to register such a change always involves the duty to pay an administration fee of 1000 CZK unless the submission of the proposal for the matter in question or for the participants in question is freed from the fee by law.

Donation in the event of death is possible according to the provisions of Sec. 2063 of Act. No. 89/2012 Coll. of the Civil Code (hereinafter only “Civil Code”). In the case of a donation in the event of death, the law explicitly requires that the donee accepts the gift and the donor explicitly renounces the right to withdraw the gift, and issues a confirmation of this. The agreement for donation in the event of death is therefore a bilateral legal transaction concluded between the donor and the donee.

The contract for donation in the event of death must be made in writing. In this connection, we recommend that the contract for donation in the event of death should be drawn up by a lawyer and the signatures on the contract be officially verified. Alternatively, the donation contract can be concluded in the form of a public instrument, i.e. a notarial record. In the donation contract it is necessary to list the conditions specified above and also to specify the property which is the subject of this donation agreement – i.e. whether it is movable or immovable in nature. It is, of course, possible to donate all the property of the donor to the donee in the event of death. With regard to the fact that it is a donation in the event of death, it is necessary to realize that the donee becomes the owner of the movable or immovable items, i.e. the things that are the subjects of the donation in the event of death, only from the moment of the death of the donor.

In this context, two situations need to be generally distinguished, depending on whether the subject of the donation is an item that is subject to entry in a public record or a thing which is not subject to such records. In the case of things that are not subject to registration in a public record, the conditions are fulfilled at the moment of the death of the donor and the donee becomes the owner of the donated item at this moment.

In this case, the subject of the donation is not part of the deceased person’s estate and it is not dealt with in the proceedings concerning the estate. On the other hand, in the case of things that are subject to entry in a public record, typically immovable items, these things become part of the deceased’s estate after the death of the testator and may then be given to the donee subsequently, in cooperation with the donor´s heir. In the case of immovable property registered in the Cadastre of Real Estate, the donee himself or herself can submit a proposal for registration after the death of the donor, though the entry procedure cannot be completed until the second participant in the proceedings is known.

The registration procedure can thus only be completed after the legally effective end of the inheritance proceedings. The heir is, of course, bound by the donation contract and must hand over the subject of the donation. The fact that the donor doesn´t have a wife or children does not mean that no heir exists. In this context, the inheritance classes will be followed as determined in the Civil Code, which generally distinguishes between six inheritance classes. If there are no heirs in the first inheritance class, which comprises the children and wife of the testator, the next inheritance class follows. In this class the heirs are the testator´s parents or other persons who shared a common household with the testator for a period of at least one year before the death of the deceased, or those individuals whose maintenance depended on the testator. If none of these exist, the testator´s siblings are the heirs, etc. The procedure continues in this way through all six inheritance groups.

In practice, spent conviction primarily means that a person with a prior conviction will be treated as if he or she was not convicted and the spent conviction will no longer be listed in the criminal record.

However, in the case that another offence is committed, it is possible that the judge involved or a member of the Police of the Czech Republic authorized to deal with the matter will be able to see spent convictions, as they have access to a different type of criminal record file.

A flat that a husband inherits from his mother is the property of the husband and as such will be subject to inheritance proceedings concerning the husband. Who will inherit the property, and how, depends on the type of inheritance proceedings that will take place, i.e. it depends on whether the husband has left a will or if the rules of intestacy will be used. If the husband has a spouse when he dies, it will be necessary during the inheritance proceedings to settle the community property of the spouses, which ceases to exist in the situation (among others) when one of the married couple dies.

With regard to the fact that the husband received the property via inheritance from his mother, this house is not, in accordance with the relevant legislation, part of the community property of the husband and wife. When settling the community property of the husband and wife, the rule of the equal share of both husband and wife would most probably be used. The wife would thus receive half of the property as well as the debts which were part of the community property on the day of the death of your father. The remaining part of the property which is part of the married couple’s community property, as well as all property owned solely by the husband – i.e. the property in question that is owned in severalty, or other property owned by the husband in severalty, would become the subject of the inheritance itself.

In the event that your husband didn´t leave a will, the rules of intestacy would be employed. The husband´s wife and his children, as his offspring, fall into the first inheritance class. The inheritance would then belong to the wife and children, with the same share for each of them. If the husband wished to adjust the inheritance in a different way, it would be necessary to draw up a will in which he could state, for example, that during the inheritance proceedings the inherited property or other property will fall into the exclusive possession of his children, and that nothing will go to his wife.

Another option is to transfer the ownership of the inherited property to a different person via donation while the husband is still alive. There are several options, and it depends on the husband and whether he wishes to alter the relationships to his property of the individuals involved.

With the new Civil Code that has come into effect, many changes have been made in the area of inheritance. The re-codification of the Civil Code introduces new options in the area of wills that give the purchaser more freedom and, with some overstatement, one could say a much freer hand. In the case of a husband´s death, the court would firstly consider the will if the husband has left one. If he didn´t leave a will, the rules for intestacy apply. There have also been changes in this area, mainly in the number of inheritance groups – the inheritance succession of people potentially eligible for inheritance is expanding and the law defines 6 inheritance groups.

The wife of the deceased and the children of the deceased belong together in the first inheritance group, which is regulated by Sec. 1635 of the Civil Code (Act No. 89/2012 Coll.).  By law, in this situation the inheritance would be divided equally between the wife and children. In the case that the deceased had a wife and two children, each of them would receive 1/3 of the estate.

Real estate is a relatively frequent subject of donation as, unlike in the case of a purchase, donation between relatives in the direct line is freed from tax. On the other hand, one disadvantage of such a gift is that the donor may, under certain circumstances, demand its return in the future. The Supreme Court of the Czech Republic has already expressed its opinion on the issue of the return of gifts and has issued the following decision: “The donor can demand that a gift be returned if the benefactor behaves towards them or the members of their family in a way that grossly violates good morals.” (see the Judgement of the Supreme Court of the Czech Republic dated 23rd January 2001, ref. 29 Cdo 228/2000).

If you are afraid that a donor could request the return of their gift, all circumstances of the case should be considered, including whether your actions “grossly violate good morals”, which the law defines as a condition for the gift’s return.

Do not hesitate to contact us for a more detailed evaluation.