How to draft a will

How to draft a will

Jan 31, 2013

Even though drafting a will is a comparatively simple task, it is always advised to consult a notary. Below you can find information that will help you decide on what the easiest way to support a good matter in your will is.

In a will, you can donate all of your property or a part of it. To make the will valid, it will need to meet certain necessary formal requirements. More on drafting a will.

In a will contract, you can donate all property or a part of it to a person or an organization, with whom you conclude the contract. The advantage of this form of a will is that both parties agree on the use of the donation in advance. More on will contracts.

A devise allows you to order your heir to give money or other possessions of lower value (thousands to ten thousands CZK) to somebody. If you aren’t sure whether the form of a devise is appropriate, you can consult the matter e.g. with the organization that you would like to donate to. More on a devise.

A will

By drafting a will, you determine who will bequeath your property, your debts included. It has to be done in a written form and must meet certain requirements, depending on what type of a will you choose to draw up.

Types of wills

A will prepared by a notary

The safest way to ensure that your intentions and wishes will be followed is a will in the form of a notary deed. A notary both guarantees that the legal requirements in the document will be met (therefore its validity) and gives advice on how to distribute your property. He also archives the document in the Central register of legal proceedings for testamentary dispositions, so as the will is not forgotten once it comes to the inheritance negotiations.

You can ask any notary to draft a will for you. For this service (drafting and archiving the document in the Central register), you will be asked to pay 1800 CZK (excl. VAT), independent of the value of your property.

The notary can also archive a will that you bring to him having drafted it in one of the below mentioned ways. For such service, you will need to pay 1100 CZK (excl. VAT).

The list of all notaries in the Czech Republic

A handwritten (holographic) will

The simplest form to draft is a will that doesn’t require the presence of other people (witnesses or a notary), i.e. the will which you write and sign by yourself. Once such a will is written and signed, you can store it with a notary, who will archive it in the Central register of legal proceedings for testamentary dispositions. Naturally, you can keep it at home or give it to someone whom you trust, too. There is a possible disadvantage though that the notary doesn’t necessarily find out about its existence when negotiating the inheritance. It is advised to ask a notary to draft one for you, since it is possible that such a will could contain formal mistakes and thus complicate proceedings if it comes to a discord among beneficiaries.

A will written at the presence of witnesses

You can also write a will accompanied by two witnesses. In that case, you don’t need to write it in hand and you only have to sign it. Each of the witnesses then needs to sign it, state that he/she is a witness and add his/her information (address, date of birth, contact details if needed). It is necessary to beware that not everyone is eligible to become a witness. For example, no one is eligible to give testimony on what he is to acquire himself (in this situation, either the testator has to write the passage himself, or three witnesses must be present). The same restrictions apply to a person close to the beneficiary or his employees. The exact conditions for witnesses of a will can be found in the following paragraphs of the Civil Code: § 1539-1541. As for a handwritten will, it is advised to ask a notary to store and archive it in the Central register. It is also advised to ask a notary to draft one for you, since it is possible that such a will could contain formal mistakes and thus complicate proceedings if it comes to a discord among beneficiaries.

A will contract

By concluding a will contract, you assign a part of your property (max. ¾ of the total value) to a second party. As opposed to a simple will, you can’t easily change or revoke a will contract unilaterally - you can only do so by coming to terms with the second party. It is necessary to think it through carefully before choosing to write a will contract. A will contract is to be written in the form of a notary deed. The notary then archives it in the Central register of legal proceedings for testamentary dispositions.

The remuneration you need to pay to a notary for drafting a will contract depends on the value of the property that is the subject of the contract and lies between 0.05% and 2% of the property value.

A devise

Through a devise, you can order an heir to give something from your property to another person – money, estates, savings, regular payment etc. A devise is a good choice when you’d like to give a donation of a lower value or when you’d like to give a specific thing (the value of which should not represent the majority of the property, since at least a quarter of each beneficiary´s share of the inheritance needs to be clear of the value of the devise). The bequeathed item is not acquired directly from the inheritance, but from an heir. This way it is less certain that the devise order will be fulfilled, however, its advantage is that you determine what exactly will be inherited. As opposed to heirs who inherit a part of the inheritance incl. debts, the one who receives inheritance based on a devise is not responsible for any debts.

How is a devise applied?

If you donate a car or money for humanitarian purposes and establish a devise for a non-profit organization, this entity doesn’t participate in the inheritance proceedings and doesn’t acquire the legacy directly from the inheritance - it only acquires the right to devise from an heir. However, during the inheritance proceedings, the organization must be informed that a legacy was bestowed - this needs to be supervised by a notary. Some devises (esp. devises for specific items of the property, e.g. a car) are being dealt with already during inheritance proceedings and the notary checks if those were dealt with before he confirms the legacy content. Other devises - the ones that are payable later on (e.g. money) - must be safeguarded before the inheritance is confirmed. This safeguarding by a notary is applied to the case of devises designated for humanitarian or publicly beneficial purposes and should prevent cases where the heir doesn’t fulfil the devise after he acquires a legacy.

It is possible to establish a devise both in a will and in an independent document, to which the same formal requirements are applicable as to a will. It is also possible to establish a devise in the form of a will contract – either as a contract with an heir, or with a beneficiary. The simplest way is again a notary deed, since the notary will advise in connection to it and will formulate the devise correctly. It is also advised to let the notary archive the document and therefore make sure it will be known of during the inheritance proceedings. The same fee is charged for above mentioned notary services as for drafting a simple will and in the case of establishing a devise through a will contract, the fee is determined by the fee for the will contract.

The Register of legal proceedings for testamentary dispositions

is a confidential electronic central register managed by the Notarial Chamber of the Czech Republic. The register contains all wills that a notary drew up in the form of a notary deed or that he is to archive, devises (if independent of the will in the form of a so called postscript), will contracts and other testamentary dispositions. The aim of the registration is to make the notary aware of any existing will or other testamentary dispositions available for the inheritance proceeding. He is to check the Central register at the beginning of each inheritance proceeding.

You can ask any notary to register a will or any other testamentary disposition.

The list of all notaries in the Czech Republic

The notary will archive the will or other testamentary disposition everytime he is drafting it in the form of a notary deed. However, you can also ask the notary to archive a will or a document that you compiled on your own if it is done so as defined by law. In such case, the notary will also register it. There is not a large difference between the fees for these two services: For a simple will or a devise, you will be asked to pay 1800 CZK for its drafting and registration and 1100 CZK for its archiving and registration.

If you are considering including PIN in your will, please contact Mr. Tomas Vyhnalek and we will be pleased to provide you with all needed information and assistance.

Tomáš Vyhnálek

Phone: 226 200 437

E-mail: tomas.vyhnalek@clovekvtisni.cz

Člověk v tísni, o.p.s.

Šafaříkova 24

120 00 Praha 2

IČO: 25755277

Author: PIN