Restrictions on the freedom to dispose of one’s succession by will (reserved portion).
Last update: 10/3/2012
Estonian law offers a reserve (i.e. the share of the succession which is obliged to go to an heir), to the spouse of the deceased and the descendants, i.e. his/her children. If the children are already deceased, it goes to the grandchildren. Lastly, Estonian law grants a reserve to the parents of the deceased, in the event where the deceased has no descendants.
The reserved portion, which limits the freedom of making a will, is half the value of the rightful heir‘s share in the inheritance. In the event where the deceased leaves a spouse and children, he/she can then freely dispose of only half of the succession.
The beneficiaries of the reserved portion can waive the reserve before the succession is opened, by a contract concluded between the future deceased and the future rightful heir. This contract must be made in the form of a notarial instrument.
Detailed information
Is there a reserved portion set aside for heirs?
If a testator has by a will or a succession contract disinherited a descendant, his/her parents or spouse who are entitled to succeed in intestacy and with respect to whom the testator bears, at the time of his/her death, a maintenance obligation arising from the Family Law Act or a testator has reduced their shares of the estate as compared to their shares according to intestate succession, they have the right to claim a compulsory portion from the successors (§ 104 (1) Law of Succession Act).
What percentage of the estate does this reserved portion represent?
A compulsory portion is one-half of the value of the share of an estate which a successor would have received in the case of intestate succession if all intestate successors would have accepted the succession. The persons who renounce a succession by a contract shall not be taken into account upon determining the size of a compulsory portion (§ 105 (1) Law of Succession Act).
What is its legal nature?
The claim for a compulsory portion is directed at the receipt of money in the amount provided for in § 105 of Law of Succession Act (§ 104 (5) Law of Succession Act). It is not directed at the receipt of the proportion of the estate.
What is the procedure to be followed to assert a right to the reserved portion? What are the time limits?
The claim for a compulsory portion arises with opening of the succession (a succession opens upon the death of a person). From that moment the person entitled to a compulsory portion can claim the compulsory portion from the heirs. No specific procedure needs to be followed. If the heirs do not agree with the right of the person to claim the compulsory portion, the portion can be claimed in court proceedings.
On the basis of a notarised application of the person entitled to a compulsory portion, executor of the will or the successor a notary shall issue a certificate concerning the claim arising from a compulsory portion (§ 173 (1) Law of Succession Act). In the certificate, the compulsory portion shall be set out as a proportion from the estate, although the compulsory portion is actually a monetary claim against the successors.
A claim for compulsory portion expires after three years of the moment the person entitled to a compulsory portion becomes aware of the opening of the succession and the disposition affecting his/her rights. Regardless of that, the claim for a compulsory portion expires ten years after the opening of the succession (§ 109 (1) and (2) Law of Succession Act).
Is it possible to renounce the reserved portion?
The person entitled to compulsory portion can decide whether to claim the compulsory portion or not. If he/she does not claim the portion, it will not be appointed to him/her automatically.
The compulsory portion can also be renounced in advance in the succession contract with the testator (§ 98).
