Inheritance Law

Area overview

Inheritance in Serbia rests on two bases: law and will (testament) (Zakon o nasleđivanju, the Inheritance Law, Art. 2). When the deceased (ostavilac) did not make a will, or the will covered only part of the estate, the remainder of the estate (zaostavština) is distributed under the rules of statutory succession - by orders of succession (nasledni redovi). The law sets out four orders of succession (Zakon o nasleđivanju, Art. 8-19): the first order consists of the deceased's descendants and spouse (Art. 9), the second the spouse and the deceased's parents (Art. 12), the third the grandparents (Art. 16), and the fourth the great-grandparents (Art. 19); after them, the deceased's more remote ancestors inherit (Art. 20). The basic rule is that heirs in a closer order fully exclude heirs in a more remote order; if there are no other statutory heirs at all, the estate is inherited by the Republic of Serbia (Art. 8, para. 4, and Art. 21).

A will takes precedence over statutory succession, but this freedom of disposition is not unlimited. The law protects the circle of closest relatives through the institute of the forced share (nužni deo) (Zakon o nasleđivanju, Art. 39-40): descendants, adopted children, the spouse, parents, and (under certain conditions) siblings and grandparents have a right to a share of the estate that the deceased could not freely dispose of by will. The forced share of descendants, adopted children, and the spouse amounts to half of what they would receive under statutory succession, while the forced share of the other forced heirs (nužni naslednici) amounts to one third. If that share has been infringed by the will or by gifts, the forced heir may seek its protection by a lawsuit, subject to the deadlines described in the specific situations below.

Regardless of whether succession takes place by law or by will, the estate is distributed through the probate proceeding (ostavinski postupak) - a non-contentious (vanparnični) proceeding governed by the Law on Non-Contentious Proceedings (Zakon o vanparničnom postupku, Art. 87 et seq.). The proceeding is opened of its own motion by the court in whose territory the deceased had their last domicile or residence, as soon as it learns that the person has died (Arts. 88 and 89), and its conduct is, as a rule, entrusted to the notary public who drew up the smrtovnica (Art. 110a). The proceeding establishes the circle of heirs, the contents of the estate, and the size of the inheritance shares; if facts on which the right to inherit or the size of a share depends are disputed among the heirs, the court directs them to resolve the dispute in civil litigation and suspends the probate proceeding until that litigation concludes (Arts. 119 and 121); for a dispute over a legacy or another right from the estate, it directs the parties to litigation without suspending the proceeding (Art. 120). When the heirs themselves reach an agreement on the division, the court incorporates that agreement into the inheritance decision (Art. 122, para. 3); if there is no agreement, the decision only establishes the ideal (undivided) shares, and the heirs remain in a co-heirship (naslednička zajednica) until the division is carried out later, either by agreement or through the courts (Zakon o nasleđivanju, Art. 228-229).

Sources

• Inheritance Law (Zakon o nasleđivanju, Sl. glasnik RS, no. 46/95, 101/2003 - Constitutional Court decision, and 6/2015), Arts. 2, 8-21, 39, 40, 228 and 229
• Law on Non-Contentious Proceedings (Zakon o vanparničnom postupku, Sl. glasnik SRS, no. 25/82 and 48/88 and Sl. glasnik RS, no. 46/95 ... 14/2022), Arts. 87-89, 110a and 119-122