Successions in Montenegro
1 - How can I pass on my assets while I’m still alive?
You can pass on your assets while you are still alive by concluding the contract on donation or any other contract on transferring of property or by concluding the contract on distribution of your property among your heirs. However, when making a donation or conluding any other contract on transfer of property your assets transfer into the ownership of the other contracting party. Please also note that the contract on donation may be recalled by donator or challenged by the heirs. For further advice you should visit a notary, who will assist you in making the informed decision.
2 - Can I retain some rights associated with the assets I give away? Can I reserve a right of reclaim?
Yes, you may retain some rights associated with the assets you give as donation. Such provisions have to be included into the donation contract. For instance you may reserve the right of ususfructus or right of habitation in donated real estate. You can also restrict for certain period or for your lifetime the donee’s right of further disposal of the gift without your consent.
Under certain conditions the right to recall the donation is reserved to the donor by the law, such as (i) if the donee grossly insults or shows extreme ingratitude towards you or your close relative; or (ii) If after giving the gift you fall into vulnerable position and are unable to maintain yourself or your dependents, provided however the donation still exists in donee’s ownership. The donation agreement can be annulled during a year after donor has been informed about abovementioned facts and in any case no longer than 10 years after the donation has been granted.
You should also take into account your interests related with controlling the property. To avoid putting yourself into situation of losing control on your assets totally reserve some rights on that property for you. For further details visit notary, who will help you to make the decision.
3 - How can I make sure my children are treated equally?
Pursuant to Law on Succession in Montenegro the children of the decedent together with the spouse are treated equally as heirs of first inheritance order, and they inherit the decedent’s property on equal parts. Children from marriage and children from extramarital relationship enjoy equal rights concerning inheritance. However, If you want to avoid any possible disagreement among your children after your death, you may also distribute your property to your children by making a donation agreement or drafting a last will and thus insuring the equal treatment from your point of view. Even better solution is making the contract on distribution of property among heirs, where the all legal heirs are obliged to take part as contracting parties. In that way you avoid any possible disagreement among heirs.
4 - Can I help one of my children without this reducing his/her share in the inheritance?
5 - Can I influence the effects of the donation on the succession?
6 - Can I give my assets directly to my grandchildren?
Grandchildren shall be deemed as legal heirs only if, at the time of opening the estate, their parent who would have been the heir of the decedent is no longer alive or if he/she renounce the inheritance or debarred from inheritance.
7 - How can I protect my spouse or partner?
You may also make marriage agreement (which must be drawn up by notary) defining the matrimonial property and your spouse’s share in it. Moreover, the spouse is also entitled to claim separation of his/her assets from the decedent’s assets which responds to the spouse’s contribution in creating it. However if you don’t have the marriage contract your spouse shall still be entitled to a half of the property gained by you during the marriage. As to the extramarital partner the law provides that the partner from long term extramarital partnership (lasted at least three years) has the same position concerning the inheritance rights as the spouse.
For further information you should address the notary or lawyer.
8 - Can my children renounce the inheritance in advance?
1 - How do I draw up my will?
If you are a full aged and capable person able to reasonably determine your actions and clearly express your intentions you entitled to be a testator. You have to draw your will only personally. A will shall not be made through an agent.
You have several options to draw up your will: (i) to write a will in your own handwriting and sign it (Holographic Will); (ii) to sign the writing composed by other person, declaring before two witnesses that it is his/her will; (iii) or go to notary and tell him how do you want to make your will, and notary applies legal form to your statement of last will. You do not need to show any documents about property, which prove that you are an owner.
All aforementioned forms of will could be deposited at notary so that they will be preserved and guaranteed to be submitted to the competent notary which, in due time, would conduct the succession procedure.
2 - How can I be sure it will be applied?
If you make notarial will or deposit your handwritten or written will before witnesses to the notary you can be sure that your will would be safely kept and after testator death will be submitted to the notary which would conduct succession procedure. Every will drawn up by the notary is registered at the Will Registry at Notary Chamber of Montenegro. Furthermore, the Notary Chamber is not entitled to reveal any information about the existing of the will before the testator death.
3 - How can I find a will that has been filed with a notary?
Every notary conducting the succession procedure will apply to the Notary Chamber for information whether the decedent made will which is registered in the Will Register. Having in mind that all the wills drafted by the notaries are registered in the Will Register, there is no possibility that the will drawn up by the notary remains unrevealed in succession procedure if it exists
4 - Which law can I choose?
5 - Can I favour a particular heir (are there restrictions)?
6 - How can I favour my spouse or partner?
The partner from long term extramarital partnership (lasted at least three years or less if you have child with him/her) has the same position concerning the inheritance rights as the spouse. However, if you want to favour your partner you can take the same measure as favouring your spouse.
For further advice you should address the notary or lawyer.
7 - Can I disinherit someone?
Law on Succession of Montenegro also recognises the reasons for obligatory debarring the heir from inheritance, and these reasons are ex officio monitored by the competent body conducting the succession procedure. These reasons are: if heir deprived decedent of his/her life; if heir forced or tricked devisor to compose the will or to recall the will already composed; who destroyed, forged or hid the devisor's will in order to prevent his/her last will to be realized; who denied his/her legal obligation to support decedent or the one who deprived decedent of urgent help that was needed.
For further advice you should address the notary
8 - Can I make my last will jointly with someone else?
1 - How are intestate successions regulated by law?
According to Law on Succession of Montenegro the heirs belong to four orders of inheritance. The members of the previous order of the inheritance exclude from the inheritance the members of the former orders of inheritance. The Representation rule applies, which means that the member of the previous order of inheritance that had deceased before testator is inherited by his/her descendants, and so on. If the deceased has not drawn up the will, the heirs of first order are spouse and children inherit equal shares of the assets. If there’s no any heir of first order, heirs from the next order of inheritance inherit the assets
2 - Are there particular regulations for specific objects?
The only specific objects with regard to Montenegrin succession law are furniture and other household objects which always belong to the spouse and other decedents' heirs who lived with him/her.
3 - How can I find out if the succession procedures have already been initiated?
4 - How can the heirs to the deceased be identified?
5 - How can I prove that I am the heir?
6 - Are there priority heirs? Is there a reserved portion for certain people?
Rregardless of the content of a will children, spouse and parents of a testator are entitled to the compulsory portion of assets that shall be one half (children and spouse) or one third (parents) of the portion to which each of them would have been entitled by the inheritance on intestacy if their order of inheritance applies (reserved portion).
7 - Do I inherit the debts? What happens when there are minor children among the heirs?
8 - Can the surviving spouse inherit?
9 - How are the inventory and evaluation of the deceased’s assets carried out?
The decedent’s assets are usually evaluated by the heirs' statement, but if parties declare inappropriate value of assets, value may be determined by engaging the court expert establishing the market value of the objects. For Detailed information ask your notary.
10 - What are my obligations if I accept an inheritance?
11 - Is it possible to renounce an inheritance or accept it under benefit of inventory?
General rule is that heir accepts the inheritance under the benefit of inventory. The heirs will only be responsible for the deceased's debts up to the value of assets they inherit.
12 - How do we administer and divide up the assets if there is more than one heir?
If the deceased made a will about their assets, the deceased's assets will be divided as it was ordered in the will, but In the event of intestacy, the heirs shall inherit the shares depending on their relation to decedent. The heirs may mutually agree on division of the estate pursuant to their respective shares and in that case the notary shall their agreement insert in the decision on inheritance.
Ask your notary for detailed information about it.
Paying inheritance tax
1 - How are succession duties calculated?
Taxes on inheritance and donations differ in relation what kind of property is subject of inheritance or donation. For Detailed information ask your notary.
2 - What is the tax rate for succession duties Does tax regulation provide for a tax-free threshold? for the children? for the spouse? for someone not directly related to the deceased? other?
Ask your notary for detailed information.