FAMILY AND SUCCESSION LAW

1). When distributing a deceased's estate, can the notary act on his own motion or must he first apply to the court for an inheritance certificate?

According to the Law on non-contentious procedure, the procedure for the distribution of the legacy is initiated ex officio, as soon as the court is informed about the death of the person or when that person is declared dead (Article 121)
The court, acting upon legacy cases, would entrust the notaries according to official areas of the notaries specified in the Law on Notariat (Article 135).
The Court which entrusted the work to the notary decides about reasons for exemption of the notary, as well (Article 136).

2). In what ways may a deceased's estate devolve: by operation of law, by will, by pre-inheritance agreement?
The deceased's estate may devolve by operation of law and on the basis of will. The pre-inheritance agreement is not envisaged in the macedonian inheritance system. Article 6 of the  Law on Inheritance prescribes that one person could inherit only on the basis on law or last will.
The contract by which one leaves his/her inheritance or his/her part to his/her contract party or to a third person is null, unless the disposal is performed by a contract for life-long support. In our legal system the contract on inheritance is null and void (Article 7).
Nullity of the contract for future inheritance or legacy Article 8 envisages that a contract is null and void whit which someone transfers inheritance for which he/she hopes to inherit in future, as well as any inheritance contract to a third person who is still alive.
  The agreement on inheritance or some other benefit that a contractor hopes to inherit while the heritage is not yet open shall also be null an void.

3).What are the rights of the surviving spouse and, if applicable, surviving partner?

According to the Macedonian law on inheritance, the following persons could become heirs: all the children of the deceased person, and their descendants,  spouse, adoptive parents, parents, siblings and their descendants and his grandparents and their descendants (Article 12).
These individuals shall inherit by the hereditary lines.
The heirs of closer inheritance line shall exclude from inheritance the persons from more distant inheritance line.
In the first hereditary line the deceased's estate is inherited by the children and the spouse of the deceased person (Article 13). They shall inherit equal shares.
The share of the spouse could be reduced when  there are children of the deceased who do are not from the marriage with the living spouse and the spouse has its own property that is bigger than the part that would belong to the spouse by the division of the inheritance in equal parts. In this case, the Law prescribes that each child of the deceased may inherit twice as much compared to  the living spouse. (Article 15).
The parents and their offspring and the spouse of the deceased represent the second hereditary  line.

  The legacy of the deceased who left no descendants shall be inherited by his parents or their offspring and his spouse.
  The parents of the deceased shall inherit one half of the legacy (they divide this half in equal parts), and the second half belongs to the the surviving spouse (Article 16).
  If both parents died before the deceased, and they have no offspring, the living spouse would inherit the entire legacy (Article 19).
  In the second hereditary line there is also another group of heirs: foster child and guardian, stepson and stepfather and stepmother, daughter in law and father in law and mother in law, son in law and mother in law, and others, under the conditions and in the manner prescribed in the Law on Inheritance. They could inherit only if there is not a surviving spouse, and they divide the inheritance in half with the parents of the deceased or with his siblings.
In the third hereditary line the inheritance shall be divided by the grandparents of the deceased.
In the Macedonian legal system, extra-marital partner does not inherit at all.
The Macedonian Family Code prescribes that community of life between a man and a woman which  is not based in accordance with the provisions of this Act (cohabitation) and which lasted at least one year, is equal to marriage in terms of the right of mutual support and division of property acquired in the duration of that community (Article 13).

4). Does your succession system make provision for the protection of family assets in the case of re-marriage of the surviving spouse? If so, how?

In the Macedonian succession system there are no provisions for the protection of family assets in the case of re-marriage of the surviving spouse.
Still, the Macedonian Law on Inheritance foresees property that stands out from the legacy and thus it is excluded from the procedure of distribution of the legacy among successors.
The Law on Inheritance (Article 37) prescribes that the spouse, ancestors, adoptive parents, descendants, adopted child and his descendants who lived with the deceased in the same household could acquire the objects from the household that serve to satisfy their daily needs, except for items of significant value. Allocated objects are not taken into account in calculating the reserved part, not are taken into account in his hereditary successor section.

5). Does your law of succession make provision for a reserved portion of the estate? If so, who may benefit?

The Macedonian Law on Inheritance has a provision for a reserved portion of the estate. There are certain categories of heirs who may benefit from the reserved portion of the estate.
 The Law on Inheritance says that certain heirs are entitled to a part of the legacy that is called a reserved part (Article 31).
The reserved part of the descendants, adoptive children and their descendants and the spouse is one-half, while the reserved part of the other heirs is one third of the portion of each heir that would belong to them according to the legal order of succession, regardless of the fact if any of the "reserved-part" heirs required part of the legacy, or are excluded from inheritance or uncapable to inherit. Moreover, the rules concerning increase or decrease of the heritable part of the spouse or parents are not applicable when it comes to reserved portion of the estate.
The right to a reserved portion means that to the so-called "reserved portion" successor belongs a certain part of each object and right that comprise the legacy, but still the testator may determine that the heir would receive his share in certain property, rights or money (Article 32).

Article30
Reserved portion heirs are: children of the testator, adoptive children and the spouse.

  Descendants of the children of the testator and his parent are "reserved portion" heirs only if at the time of death of the testator they had lived in communion with him or he supported them or if they are permanently uncapable to work and do not have the necessary subsistence means.
The parents of the testator and his siblings are "reserved portion" heirs only if they are permanently unable to work and do not have the necessary means of subsistence.
Persons mentioned in this article are necessary heirs when, according to the legal order of succession, they are being entitled to inherit.

Calculation of  the  reserved portion Determining the value of legacy
  The value of the inheritance upon which the reserved portion is being calculated, is determined as follows:
- Previous inventory and assessment of the goods that the testator owned at the time of death is being performed, including here everything that was adduced by the will, and all his claims, even those he have towards a successor, except claims which are obviously recoverable;
- From the determined value of the goods  that the testator possesed at the time of death the amount of the testator's debts are being reduced, than the amount of the cost of the inventory and assessment of the legacy, and the cost of the funeral of the deceased;
- The resulting residue is added to the value of all the gifts the testator made in the last 90 days of his life, even those gifts for which the testator ordered not to be calculated in the successor's inherited part.

Inheritance does not include goods that testator adduced in the frames of contract for life-long support, and whose transmission is postponed until the death of the recipient of alimony.

6). Does the surviving spouse or partner benefit from a right to accommodation (i.e. to remain in the matrimonial home or the home shared by the couple)?

In principal, there is not such a possibility in the Macedonian Law on Inheritance. Yet, the living spouse may request bigger part from the legacy that in first place was envisaged to be distributed among other heirs. In this sense, Article 27 of the Law on Inheritance prescribes that when the spouse who does not have necessary subsistence means and is called to inherit in the second hereditary line, with the heirs of the second succession line, the Court may decide, that the spouse shall inherit a portion of that part of the legacy that should be inherited by other heirs. Morover, the Court could decide the spouse to inherit the whole legacy, if the legacy is of so little value that by its division, the spouse would have fallen in scarcity.
  When deciding, the Court would take into account all circumstances of the case, especially the value of the property and working ability of the spouse, the financial status of the other heirs and their working ability, and the value of the legacy, as well.

7). What is the time-limit for bringing an action to recover "reserved" assets?
Lawsuit referring reducing of the disposal of the will may be required within three years of the proclamation of the will, and lawsuit asking for returning of the gifts committed in the last 90 days of life of the testator may be filled within three years after the death of the testator or from the date when the decision on declaring him dead has become legally binding (Article 45).

8). Can an action for recovery be brought against a third party possessing in good faith a reserved asset transferred by a legatee or purported donee?
Article 136
 The right to require legacy with a lawsuit as the successor towards the holder of legacy expires within two years from the day since the successor found out that there is legally valid  succession decision, and within ten years from the date when the succession decision has become legally valid.
  The right to require legacy in any case shall become obsolete after expiration of 20 years from the death of the testator.

9). Does your law of succession contain special rules for cases where the estate includes a business? If so, what are they?
No, in the  Macedonian legal system there are no special rules for cases where the estate includes a business.

10). Does your law of succession contain special rules for the protection of an heir who lacks capacity? If so, what are they?
This could fall under the general custodian rules. The provisions referring to protection of persons that lack capacity are not placed in the Law on Inheritance, but in the Family Code of the Republic of Macedonia.
Through the custodianship the state gives special protection to minors who are without parental care and to adults who have been deprived or have limited legal capacity (Article 124).
According to the provisions of this Law, a protection is also given to other persons who are not able to take care of the protection of their rights and interests.
The Center for Social Work appoints a custodian over individuals who are partially or completely deprived of legal capacity by a court decision (Article 165).
Legal capacity is the ability of a person to express legally relevant willingness to participate in legal transactions.
  The custodian of the person whose  legal capacity has been taken away or limited is obliged to take care especially about his personality, rights, interests, health and housing, having regard to the reasons for which the person has revoked or limited legal capacity, seeking those to be removed, and the person to be enabled for independent life and work (Article 167).

  The custodian of the person who has been deprived of legal capacity has the rights and duties of a guardian of a minor younger than 15 years of age (Article 168).

 Article 173 of the Family Code stipulates that the Centre for Social Work shall assign a custodian for certain things or certain type of work over a person whose place of residence is not known, and that has no legal representative, over unknown owner of  estate when it is needed someone to take care of the estate, as well as in other cases where it is necessary to protect the rights and interests of individuals.
  Custodian, under the conditions stipulated by law, could be appointed by the authority in front of which the proceeding takes place. This authority shall without delay inform the Centre for Social Work.
At the request of the person who due to illness, age or other justified cause is unable to take care for himself of his rights and legal interests, the Centre for Social Work may assign a custodian for certain things or certain type of work (Article 176).

11). Is it possible for the presumed heirs of the deceased to renounce their future inheritance even before the succession procedures commence or to assign their rights to their future inheritance?
No, there in no such possibility for the presumed heirs to renounce their future inheritance even before the succession procedures commence or to assign their rights to their future inheritance.
When it comes to the Renunciation of an inheritance which is not open the Law on Inheritance (Article 132)prescribes that: The renunciation of legacy that is not yet open does not produce any legal effect.

12). Are inheritances subject to tax? If so, are certain heirs exempt?
Yes, the inheritance is subject to inheritance tax of 2% - 5%, depending on the level of kinship. However, there are few exemptions from this rule whereby certain types of heirs are exempted from tax, as follows:

• First line of heirs are exempt from inheritance tax; and
• Second lines of heirs are subject to 2% or 3% inheritance tax.

Third line of hairs and also, persons which are not related to the deceased are subject to 4% to 5% inheritance tax.
Legal basis for the inheritance tax is the Property Tax Law (published in the "Official Gazette of Republic of Macedonia" No. 92/2007, 102/2008, 35/2011, 53/2011, 84/2012). The articles that are of importance for the inheritance issues are listed below.

INHERITANCE AND GIFT TAX
Subject to taxation
Article 10
(1) Inheritance and gift tax shall be paid for immovable and for the right to usufruct and usage of immovables which the inheritors, i.e. the receivers of gifts inherit, i.e. receive on the basis of the Law on Inheritance, i.e. the gift agreement.
(2) Inheritance and gift tax shall be paid for cash, monetary claims, securities and other movable property if the market value of the inheritance, i.e. the gift agreement is higher than the amount of an annual average salary in the Republic of Macedonia for the previous year, according to the data from the State Statistics Office.
(3) The value of all gifts of the same type referred to in paragraph (2) of this Article,  received during one calendar year shall be considered one tax base.
(4) The municipality administration, the administration of the municipalities in the city of Skopje and the administration of the City of Skopje shall keep records on the basis of which the receiver of the gifts may be levied tax at the end of the year, if during the same year he receives more gifts of the same type, in an amount exceeding the prescribed amount referred to in paragraph (2) of this Article.

(5) The form, content and manner of keeping the records referred to in paragraph (4) of this Article shall be prescribed by the Minister of Finance.
Taxpayer
Article 11
(1) Taxpayer of inheritance and gift tax shall be a natural person and legal entity – resident of the Republic of Macedonia that inherits property referred to in Article 10 of this Law, as well as a natural person and legal entity that receives property as a gift, in the country and abroad.
(2) Taxpayer of inheritance and gift tax shall be a foreign natural person and legal entity – non-resident, for the immovables and the movable property he inherits, i.e. receives as a gift on the territory of the Republic of Macedonia.

Article 12
(1) If the inheritor who has accepted to be inheritor cedes the inheritance for the benefit of a person who would come to that inheritance even in case the inheritor would not have ceded it, the tax shall be paid by the person in whose ownership the inherited property is transferred.
(2) If the inheritor cedes inheritance to a certain person that would not come to the inheritance in case the inheritor would not have ceded it, then the inheritor who has ceded the inheritance shall pay the inheritance tax and the person for whose benefit the inheritance is ceded shall pay a gift tax.
Tax base
Article 13
A basis for the inheritance and gift tax shall be the market value of the inherited, i.e. the property received as a gift, at the moment the tax obligation arises, reduced by the debts and the costs that are borne by the property which is subject of taxation.
Article 14
The market value of the inherited or the property received as a gift shall be established according to the Methodology referred to in Article 5 paragraph (4) of this Law.
Arising of tax obligation
Article 15
(1) The tax obligation, in regard to the inheritance, shall arise at the moment of the legal validity of the decision on inheritance.
(2) The tax obligation, in regard to the gift, shall arise on the day of concluding the gift agreement.
(3) If the immovables being subject of inheritance, i.e. gift, are encumbered by the right to usufruct, the obligation of inheritance and gift shall arise after the termination of the right to usufruct.
(4) If the sale of the inherited, i.e. the movable property received as a gift referred to in Article 10 paragraph (2) of this Law is forbidden by law, the tax obligation shall arise on the day the approval for sale becomes legally valid, i.e. on the day of the sale.
(5) If the legally valid decision on inheritance or the gift agreement is not registered or they are not registered on time, the tax obligation shall arise on the day when the inherited property, i.e. the property received as a gift is revealed.
Tax rates
Article 16
(1) The rates of the inheritance and gift tax shall be proportional and different depending on the hereditary order.
(2) The inheritance and gift tax for a taxpayer of second hereditary order shall be calculated according to a rate of 2% to 3% and for a taxpayer of third hereditary order or taxpayer who is not related to the decedent, the tax shall be calculated according to a rate of 4% to 5 %.
(3) The amount of the rates referred to in paragraph (2) of this Article shall be established by the council of the municipality by a decision.
(4) The amount of the rates referred to in paragraph (2) of this Article shall be established by the council of the municipalities in the city of Skopje and the Council of the City of Skopje by a decision, in accordance with the Law on the City of Skopje.
Tax exemptions
Article 17
Inheritance and gift tax shall not be paid by:
1) the inheritor, i.e. the receiver of a gift of first hereditary order;
2) the inheritor, i.e. the receiver of a gift of second hereditary order of one inherited, i.e. apartment, i.e. family residential building received as a gift if he has lived with the decedent, i.e. with whosoever leaves the gift in a joint household at least one year before the death of the decedent, i.e. at the moment of receiving the gift, under condition that they and the members of their family do not have another apartment, i.e. residential building and
3) the inheritor, i.e. the receiver of a gift of second hereditary order whose basic activity is agriculture, and will inherit, i.e. receive an agricultural land and economic facilities as a gift, if they lived with the decedent, i.e. with whosoever leaves the gift in a joint household at least one year before the death of the decedent, i.e. at the moment of receiving the gift.
Article 18
The state bodies, the bodies of the municipalities, the bodies of the municipalities in the city of Skopje and the bodies of the City of Skopje, the National Bank of the Republic of Macedonia, the Red Cross organizations, humanitarian, social, scientific, educational, cultural institutions and religious communities shall be exempted from inheritance and gift tax for the gift that they received in a form of immovable or movable property, securities, monetary funds and claims.

13). What are the rules of private international law in your country in relation to succession?
The law governing a succession is determined on the basis of the nation­ality of the deceased (Article 35). This rule comprises all substantive issues of succes­sion regardless of whether it is testate or intestate. However, there are two spe­cific questions that are governed by separate choice of law rules: first, the capacity of the testator to make a will is governed by the law of the state of the testator's nationality at the time when the will was made (art. 36); second, the form of the will (Article 37, para. 1) is governed by the solutions of the Hague Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions of 1961, of which the Republic of Macedonia is also a member, with only two minor modifi­cations. The revocation of a will is valid as to form if it is valid under any of the laws under which a will could be validly made (art. 37, para. 2). (Law on International Private Law, Official Gazette of Republic of Macedonia 87 / 2007).
In cases of inheritance the authoritative law is the one of the state in which the deceased had citizenship (Art.35).
The state where the testator had citizenship at the moment of writing the will shall, set up the criteria which determine the ability for making a will (Art.36).
A testament is valid in terms of shape, if it is valid according to one of the following laws:

• the law of the place where the will is made​​;
• the law of the state whose citizen was testator either at the time of the disposition of the will be the time of death;
• the law of habitation of the testator at the time of the disposition of the will or at the time of death
• the law of residence of the testator at the time of the disposition of the will or at the time of death
• the law of the Republic of Macedonia and
• about estate - under the law of the place where the real estate is located (article 37).

The revocation of a will is valid in terms of form, if that form is valid, according to which any law under which, in accordance with the provisions of paragraph (1) of this Article, the will could validly be drawn.

14). Has your country signed double taxation agreements in relation to inheritance rights?
Republic of Macedonia has signed double taxation agreements with 37 countries and usually inheritance tax is part of those agreements.  Most of the agreements are based on the OECD Model Tax Convention, however, the respective double taxation agreements are specific for each  country because the text may vary upon case-to-case basis. Macedonia has signed double taxation agreements with the following countries:
- Albania
- Arab Republic of Egypt
- Austria
- Belarus
- Bulgaria
- Croatia
- Czech Republic
- Denmark
- Islamic Republic of Iran
- Italy
- Latvia
- Federal Republic of Germany
- France
- Serbia and Montenegro
- Hungary
- Moldova
- Netherlands
- People's Republic of China
- Poland
- Romania
- Russian Federation
- Republic of China
- Slovenia
- UK and Northern Ireland
- Sweden
- Switzerland
- Turkey
- Ukraine
- Finland
- Spain
- Lithuania
- Qatar

15). Does your family law make provision for the transmission of property across generations? If so, in what manner?
No. The Macedonian family law does not have provisions for the transmission of property across generations.
Still, our Law on Inheritance envisages legal institute called: Deprivation of the reserved proportion in favor of descendants.
  If a descendent who has the right to reserved portion part is debt-ridden or purveyor the testator could fully or partially deprive of its reserved proportion in favor of his descendants.
  This deprivation remains valid only if at the time of opening the inheritance the person deprived has a minor child or minor grandson of the earlier deceased child or adult child or adult grandchild of the earlier deceased child who is incapable of work  (Article 49).

16). Does your family law make provision for powers of attorney which survive incapacity?
Yes. In the Macedonian Family Code, the fifth section refers to the subject: Custodianship over individuals who survive incapacity is presented in part IV (Articles 165-172) of the Family Code.
***The essence of these rules are already mentioned in the answer of the question 10.

17). Are pre-nuptial agreements possible? If so, how are they established?
No. There are no legal grounds to conclude pre-nuptial agreements in Macedonia.

18). Are agreements between partners (de facto couples, homo- or heterosexual) possible during cohabitation? If so, how are they established?
The partnerships (both heterosexual and homosexual) are not recognised in the legislation from the perspective of inheritance rights.
The Macedonian Family Code prescribes that community of life between a man and a woman who is not based in accordance with the provisions of this Act (cohabitation) and which lasted at least one year, is equal to marriage in terms of the right of mutual support and division of the property acquired for the duration of that community (Article 13).

19). Is your Parliament discussing legislative reforms in relation to any of the matters covered by this questionnaire?
In December 2010, following a decision of the Government of Republic of Macedonia, a Commission for Drafting of the Civil Code has been formed. In that context, the Commission is working on introducing certain reforms in the sphere of family law and law on inheritance.