Death can bring about various complications to grieving relatives, not least when a person dies intestate. When a person dies without having drawn up a will there are numerous aspects to that person’s succession that need to be considered.
Succession is a method of continuation of the personality of a deceased person; hence, an heir shall, by way of continuation, have the obligation to discharge all liabilities of an inheritance prior benefitting from a deceased person’s estate.
Inheritance is the mechanism which devolves the estate of a deceased person (de cujus), either by disposition of man or in the absence thereof, ipso jure. Inheritance is ipso jure due to the deceased person not having devolved all of his estate, if at all, the right of accretion does not arise from co-heirs, or there is no valid will. This is referred to as intestate (ab intestato) succession. This is a pre-determined mode of succession which is adopted and is established by the legislator.
Persons classed as heirs ab intestato are the ascendants, descendants, collateral relatives, the spouse of the deceased, and the Government of Malta in specific instances as provided ex lege. When all of these persons are present, the law does not consider the prerogative of their relation or the origin of the property, except in the specific cases provided ex lege, but considers the proximity of the relationship between the heir and the deceased.
The proximity of the relationship can be either through the direct line or the collateral line. The direct line may be descending or ascending, and it connects ascendants and descendants who are directly related. The collateral line connects persons descending from a common ancestor but not from the same direct line.
Nonetheless, even though there is an automated ex lege mechanism in place for intestate succession, one’s capacity to succeed is a principal factor when determining intestate succession. The persons who do not have the capacity to succeed are the following:
Nonetheless, the children or descendants of a person deemed unworthy to benefit from the inheritance are still able to succeed in their own right or by virtue of the rule of representation.
The rule of representation allows that the descendants shall benefit from the inheritance of their ancestor on a per stirpes basis. This is a notion whereby descendants are owed the share of their ascendant divided by the number of brothers or sisters. On the other hand, per capita basis is when all persons in the same degree receive the same portion of the inheritance. The use of a notion rather than the other in intestate succession shall be determined ipso jure.
Representation is not permissible when the ascendant is still alive and has not been deemed incapable of succeeding the inheritance. Moreover, a descendant is not able succeed by virtue of the rule of representation if the ascendant has renounced the inheritance. When such renouncing heir is the sole heir or all heirs renounce the inheritance, their descendants shall be able to inherit on a per capita basis.
Nonetheless, a descendant who renounces the inheritance of his ascendant shall still be able to represent his ascendant by virtue of the rule of representation.
An important factor in succession is legitimate and illegitimate children. Our present law does not differentiate between the two as they are both deemed as descendants. When the de cujus has a spouse and descendants, and intestate succession is to govern the inheritance, a moiety shall be ipso jure given to the spouse and the other moiety is to be divided amongst the descendants. When the spouse or descendants predecease the de cujus, but the descendants or spouse remain respectively, they shall be devolved the entire moiety.
Intestate succession also provides for the possibility whereby there are no descendants nor a spouse, in which case the inheritance shall devolve on:
Direct collateral shall mean brothers and sisters, whether:
Intestate succession between collaterals does not extend beyond the 12th degree. When succession goes beyond the 12th degree, the Government of Malta is deemed to be the heir next in line.
For information or personalised assistance please contact us at info@gtg.com.mt
You may also wish to read:
MALTA Succession Law: The Reserved Portion – Is-Sehem Riżervat
Malta Succession Law: Inheritance – Confident Acceptance & Renunciation