A testament is a vital legal document that plays a key role in the disposal of property after the death of its owner. Although many believe a testament is necessary only for wealthy people, it can also be useful for everyone. The document allows the owner of the assets to express their wishes and determine who will be the heir, which can help avoid conflicts between loved ones. In this article, we will consider what a testament is, its features, its drafting process, and some aspects related to its execution.
General Provisions on Testaments
A testament is a paper document, written in the testator’s hand, in which the owner of assets (property, bank accounts, securities, etc.) expresses his will regarding the disposal of these assets in the event of death.
Any property can be bequeathed without restrictions, including property that does not yet exist but is planned to exist on the day of the opening of the inheritance. At any time, the testator has the right, without giving reasons:
- Change the testament
- Cancel the testament
- Prescribe in the testament the actions (legal ones) that the heir must perform to receive the inheritance
Where to Make a Testament
A testament is a unilateral transaction made with a notary or a government agency representative when there is no access to a notary for various reasons (for example, when the testator is undergoing treatment or in military service). A notary can write a testament based on the testator’s words in the presence of a witness, but the testator must sign the testament itself. When this is impossible for objective reasons, another person signs the application in the presence of a notary. In this case, the personal data of the signatory is prescribed in the testament .
There is a concept of “secrecy of the testament .” This means that the notary and other persons who participated in drafting the testament do not have the right to share information about the contents of the testament before the inheritance is opened. The secrecy of the testament does not extend to the testator himself.
Cases to which a testament Does Not Apply
The legal norms list the cases to which the testator’s wishes expressed in the testament do not apply.
Regardless of the content of the testament , it does not apply to the following cases:
1. When it comes to a compulsory share in the Inheritance
Regardless of the content of the testament , a compulsory share in the inheritance is at least half of the share that would fall to the minor or disabled children of the testator, his disabled spouse and parents in the case of inheritance by law.
2. When the testament states how the heir should dispose of the inheritance in the event of his death
3. When illegal or objectively impossible actions of the heirs are specified as conditions for the heirs to receive the inheritance
Who Can and Cannot Bequeath Property
Only the individual owner can bequeath property. Companies cannot make a testament in their name.
The capable owner of the property must express his will in the testament . It means that an incapacitated person (a person to whom the court has appointed a guardian) cannot bequeath their property by itself. Also, a representative of a capable person cannot dispose of property in a testament . A testament can only be made in person. It makes no sense to bequeath property because the testator is not the owner. Such a testament will have no legal force.
A spouse and other persons cannot jointly dispose of property in one testament . A testament can contain instructions for only one person.
To Whom Can Property be Bequeathed
The person who bequeaths property is called the “testator”. The testator is not limited in the choice of heirs (those to whom the property is bequeathed). The heirs can be:
- One or more persons
- Relatives and non-relatives of the testator
- The state and its territorial units
- Companies
The main requirement that an individual heir must meet is to be alive on the day the inheritance is opened. The heir’s legal capacity is irrelevant—even incompetent persons can inherit property through guardians. The heir’s citizenship is also irrelevant to inheritance.
The testator can appoint a “substitute” heir (this is the so-called “substitution of the heir”) in case the heir refuses the inheritance, dies, does not accept the inheritance, or does not fulfil the conditions for receiving the inheritance specified in the testament .
In this case, the testator can disinherit close relatives who will not be heirs by law.
How to Revoke a Testament
A testament can only be revoked at the initiative of the testator. Technically, this can be done in two ways:
Method 1:
The testator asks the notary for a copy of the testament . To do this, a written application for the issuance of the testament for destruction is submitted to the notary who certified the testament .
The notary draws up the documents on the same day and hands over the testament for destruction.
Method 2:
The notary destroys the testament himself at the testator’s order. With the order, the testator must send his copy of the testament to the notary.
The notary destroys the testament and informs the testator about this.
Certification of the Testament
For a testament to be considered valid, it is not enough to simply set out your testament on paper. It is necessary to certify the testament in the prescribed manner. The testament must be certified by a notary or a government agency (organization) representative with the right to certify testaments. It is considered invalid if a testament is not certified or in writing. You can contact any notary regarding the certification of a testament .
A notary has a specific procedure for certifying a testament . For example, a notary must warn the witness and the person who signs the testament instead of the testator (for example, when the testator has physical disabilities) that the secrecy of the testament must be observed. The notary is also obliged to explain to the testator the provisions of the obligatory share in the inheritance.
Abroad, testaments are certified by authorized persons of diplomatic missions and consulates of Belarus in other countries. For questions about the content and certification of a testament , we recommend using the advice of an experienced lawyer.
A notary certifies a testament , a paid service. You must pay a notary fee, usually one basic unit. As of November 2024, this is 40 Belarusian rubles (about 12 euros).
Closed Testament
A closed testament is a testament “in an envelope.” It is also signed by a notary, but the notary does not know its contents. Only the testator writes and signs such a testament and knows its contents.
There is a certain notarial procedure for certifying and storing such a testament . For example, two witnesses are needed to hand over an envelope with a testament to a notary. Such a testament exists only in one copy. There is also a procedure for opening the envelope and informing the heirs about the opening of the inheritance.
In a closed testament, in addition to the disposition of property, you must indicate the heirs’ current addresses and contact details. It may not be easy to independently draw up a closed testament so that it is valid. Therefore, we recommend using the advice of an experienced lawyer.
How the Heirs Find Out about the Testament
A regular, unclosed testament is made in two copies. One remains with the notary in the inheritance case, and the other remains with the testator. The testator can keep the testament where he/she sees fit. The testator is not obliged to keep the storage location and contents of the testament secret. The testament specifies the details of the notary who has the inheritance case. The heirs must contact him/her after the inheritance is opened.
When the heirs know that there is a testament but do not have the document on hand after the inheritance is opened, they can contact any notary. Notaries have access to an information system in which they can find out which notary office in Belarus and with which notary a copy of the testament is kept.
Notaries share information about the testament based on the testator’s death certificate. They do not disclose such information during the testator’s lifetime—this is a notarial secret. Based on the death certificate, the notary opens the inheritance case and checks whether the testator left a testament through the unified register of testaments. Only after this can the heirs find out the contents of the testament .
Features of the Execution of the Testament
There are several options for executing a testament. Depending on the circumstances and contents of the testament, one of them can resolve issues related to its execution.
Option 1. The testator appointed an executor of the testament
When a property is bequeathed to several heirs, the testator can entrust the execution to a person who is not an heir. In this case, the executor of the testament is called the “executor”. Such a person must agree to be the executor, and the testament specifies this person’s details.
Option 2. The testator did not appoint an executor of the testament
When there are several heirs and the testament does not specify an executor, the heirs can choose one to execute the testament or entrust the execution to a person who is not an heir.
When the heirs cannot agree on an executor, they or one of them have the right to go to court. In this case, the court will appoint an executor of the testament. For advice on issues related to the execution of a testament, we recommend that you contact our inheritance lawyer.
What Does an Executor Do
The main duty of an executor of a testament is to take measures to execute it. The testator can define the duties of the executor of the will in the testament. When the testament does not contain a list of the executor’s duties, he must perform the duties listed in the Civil Code of Belarus provisions. You can get advice on such duties from our lawyer. In particular, the executor of the testament can conduct cases in court and other government agencies related to the execution of the testament . The executor’s duties cease upon the heirs’ entry into the inheritance – 6 months after the testator’s death.
A testament is not just a legal document but an important tool that allows a person to express their last wishes and ensure the protection of the inheritance. Having a testament helps avoid conflicts between heirs and ensures that the property will be distributed according to the testator’s testament . Understanding the process of drawing up a testament and its legal nuances is very important for everyone who cares about the future of their property and loved ones. It is important to remember that correctly drafting a testament requires consultation with a lawyer to avoid possible mistakes and ensure its legality.
Contact us
If you have any questions or disputes regarding testaments in Belarus, we will be happy to help! Our long-term experience in divident payment will help you resolve any disputes in this area.
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