Succession Law (Inheritance)

Succession law in the broad sense of the term determines the transfer of property from a deceased person’s estate to their legal successors (informally known as ‘heirs’). Under Maltese law, the bulk of succession law is found in Part II Title III of the Maltese Civil Code entitled 'Of Succession'. 

The devolution of a deceased person’s property onto its heirs could take place by means of:

• A will made according to law (known as ‘testate succession’);

• By operation of law (known as ‘intestate succession’) in the case of absence of a will

• Through a trust (heirs will be nominated as beneficiaries)

In Malta, only two types of wills are recognised – the public will and the secret will, both of which must be made according to law for in order to be valid and legally enforceable. The public will is usually drafted by a notary public according to the needs of the testator. The will is then formally ‘received’ by the notary public in the presence of two witnesses and published, ie. enrolled in the public registry. The existence of a public will, that is, whether or not a particular person has in fact made a will, is searchable in the public registry; whilst the contents of such wills remains undisclosed until the death of the testator.

Maltese law also recognises the secret will, even the existence of which, remains unknown until the death of the testator. The contents of the secret will need not even be disclosed to the notary or the witnesses. This type of will is deposited in the Court Registry and may only be opened after the testator’s death and by the authorization of the Court in favour of the interested parties.

Maltese law also allows married couples to submit a unica charta (joint) will.

Wills which are not made according to the procedures imposed by law, such as holographic wills, are not legally enforceable in Malta.

Intestate succession occurs when a person dies without having made a will (however, there are other cases where intestate succession can prevail – either in whole or in part) and therefore the succession takes place by operation of law. The provisions of Articles 788-816 of the Maltese Civil Code govern intestate succession. A set of predetermined rules based on the presumed proximity of the relationship between the deceased and his heirs. As a rule, the estate of the deceased devolves accordingly upon the said person’s i) descents; ii) spouse; iii) ascendants; iv) collateral relatives; and lastly v) in favour of the Government of Malta.

There is also what is known as the ‘reserved portion’ (formerly called the legitim) which is a legal right to part of the estate guaranteed by law in favour of the descendants and/or spouse of the deceased. As a rule, the reserved portion is calculated on the estate in its entirety, after deducting the debts due by the estate, and the funeral expenses. There are many factors which determine the amount of the reserved person – such as the number of children of the deceased.

In Malta, we do not have what is known as ‘probate’ – ie. the judicial process in which a will is reviewed to determine whether it is valid and authentic. However, this is not to say that probate issues will never arise in cross-border inheritance scenarios involving Malta or a Maltese parties. Furthermore, Maltese Courts have often dealt with cases relating to validity of wills published in Malta, disputes as to who is the legal heir and rights of heirs, challenging actions performed by the testator, the extent of the reserved portion, etc…

Lastly, no duty is chargeable on the transfer causa mortis (transfer from deceased to heir) of movable property. However, duty is chargeable on the transfer causa mortis of immovable property and of securities.

Civil lawyers and notaries specialising in succession law at Lexvirtualis™ can help you with:

• Drafting a will according to your needs, as well as and the legal restrictions and advising you as to the legal and fiscal implications involved

• Reviewing an existing will and advising accordingly

• Intestate successions

• Cross-border successions and probate

• Setting up a trust for devolution of property

• Private International Law / Conflict of Laws

• Challenging the legal validity of a will; challenging acts made by the testator

• ADR and Litigation