What is a testamentary fideicommissum?
In a testamentary fideicommissum (καταπίστευμα), the testator obliges his heir to leave the inherited estate to a specific person. By his will, a person may determine the fate of his property after his death, naming, within the limitations imposed by law, those whom he wishes to inherit it. It is not, however, excluded for the testator to consider it appropriate to establish through his will a fideicommissum, providing that one person, the so-called «encumbered heir» (βεβαρυμμένος), shall acquire the inherited estate or a portion thereof, but only until the occurrence of a specific event (e.g. his death) or the lapse of a certain period of time, at which point he shall be obliged to deliver it to another, expressly designated person, called the fideicommissary (καταπιστευματοδόχος).
This of course does not mean that more than one heir may not be designated as encumbered. Indeed, it is not excluded that this obligation may concern even all the heirs in respect of the hereditary share corresponding to them. Likewise, the capacity of fideicommissary may be conferred upon more than one person, depending on the will of the testator.
May the testator designate a fideicommissary of the fideicommissary?
The testator may not designate a fideicommissary of the fideicommissary. The obligation to deliver the inheritance may be imposed only once, that is, only upon the encumbered heir and not also upon the fideicommissary. Indeed, in the event that such a clause is included in the will, it is automatically rendered void, since the relevant provision is one of mandatory law.
Must the term «fideicommissum» be expressly stated in the will?
The establishment of the fideicommissum in the text of the will need not be declared by the use of solemn phrases, nor even by the word «fideicommissum»; it may also be made by an implicit declaration of the testator, provided that the intent of the testator that someone become his heir only for a certain period and that thereafter the inheritance pass to another person can be inferred from the will.
How is the fideicommissum administered by the encumbered heir?
The encumbered heir is obliged, until the delivery of the fideicommissum, to administer the inherited estate exercising the diligence which he exercises in his own affairs, bearing liability in the event of gross negligence. Within the framework of ordinary administration, the encumbered heir may validly enter into contracts, while it is not excluded that he may also dispose of items of the inheritance, with the consent of the fideicommissary, and deliver to the latter anything obtained from their disposal.
What is the fideicommissary’s defence against the encumbered heir for mismanagement?
The fideicommissary, for his part, has a right of expectancy of inheritance from the death of the testator until the devolution of the fideicommissum. As the holder of this right, it is accepted that he is entitled to seek judicial protection, and specifically to request the imposition of interim measures, in the event that the administration of the fideicommissum by the encumbered heir deviates from the conditions set by the law (Article 1937 § 2 of the Civil Code (AK)) and may bring about the infringement or frustration of the above-mentioned right.
What are the rights and obligations of the fideicommissary?
The fideicommissum devolves automatically upon the fideicommissary as soon as the time elapses or the event occurs that was expressly designated in the will, which need not, however, be certain. In the event that the will designates a fideicommissary without simultaneously designating such an event, the inheritance passes to the fideicommissary upon the death of the encumbered initial heir (Article 1935 of the Civil Code (AK)).
Upon the devolution of the inheritance, the fideicommissary becomes the universal successor heir of the testator, and the encumbered heir is obliged to deliver to him the fideicommissum immediately, in the condition in which it ought to be following ordinary administration. Any fruits and other benefits accrue to the encumbered heir, who is further entitled to claim anything he has paid for expenses, beyond those incurred within the framework of ordinary administration or those constituting ordinary burdens of the inheritance.
In the event, however, that the encumbered heir refuses to deliver the fideicommissum, the fideicommissary may protect himself against him by bringing the action for the recovery of inheritance (Articles 1871 et seq. of the Civil Code (AK)) and claim his legal rights. Furthermore, the fideicommissary has the right to accept or renounce the inheritance, after its devolution upon him.
What are the tax obligations of the encumbered heir and the fideicommissary?
Finally, from a tax perspective, the fideicommissary is regarded as the bare owner of the property that will be delivered to him (whereas the encumbered heir is regarded as usufructuary) and will be taxed at the time the inheritance passes to him; however, the tax will be calculated on the value of the full ownership of the property at the time of its delivery to him by the encumbered heir and on the basis of his relationship to the original testator.
What is the fideicommissum of the residue (καταπίστευμα υπολοίπου)?
A fideicommissum of the residue (περιλιμπανόμενο) exists when the testator institutes the fideicommissary in whatever remains or is found in the inheritance at the time of the devolution of the fideicommissum upon him, and when the testator expressly permits in his will the free and unrestricted administration of the inheritance by the encumbered heir, in which case the latter has the right to make any disposition of the inheritance items by act either onerous or gratuitous (sale, donation), but is not entitled to dispose of them by testamentary disposition, since the inheritance after his death belongs to the fideicommissary. Such a disposition by the latter is void, this nullity being subsequent (not original) and relative in favour of the fideicommissary, by whom alone it may be invoked. The power of the encumbered heir to dispose of the items of the inheritance as set forth above is subject (only) to the general restriction of Articles 281 and 288 of the Civil Code (AK), and consequently the heir may not, contrary to good faith, engage in pointless or wasteful squandering of the estate with the sole purpose of preventing anything from passing to the fideicommissary.
- See also article Certificate of Inheritance
- See also article Renunciation of Inheritance by a Minor
- See also article Contesting a Will
- See also article Death of a Bank Depositor
- See also article Forced Heirship
- See also article Classes of Intestate Succession
- See also article Kinship
- See also article Power of Attorney from Abroad
FREQUENTLY ASKED QUESTIONS ON THE TESTAMENTARY FIDEICOMMISSUM IN A WILL
1. What does it mean for me that I am a fideicommissary?
It means that the testator stipulated in his will that the inheritance shall first pass to another person, the encumbered heir, and subsequently to you when a specific event occurs or a certain period of time elapses. Until then, you retain a right of expectancy in the inheritance, which is protected by law. As soon as the event designated by the testator occurs, the fideicommissum devolves automatically upon you and you become the universal successor of the testator. If no specific event is provided for, the fideicommissum passes to you upon the death of the encumbered heir. You have the right to accept or renounce the inheritance after its devolution.
2. What can I do if the encumbered heir is mismanaging the estate?
As fideicommissary, even before the fideicommissum devolves upon you, you have the right to judicial protection. If you ascertain that the encumbered heir is deviating from the limits of ordinary administration set by Article 1937 of the Civil Code (AK), you may apply for interim measures to protect the inherited estate. Furthermore, the encumbered heir is liable for gross negligence and is required to exercise the diligence he displays in his own affairs. If he refuses to deliver the fideicommissum to you after devolution, the action for the recovery of inheritance (Articles 1871 et seq. of the Civil Code (AK)) is the principal instrument for asserting your claim. The specific measures depend on the form of the mismanagement and the nature of the estate.
3. How long will it take before I finally receive the inheritance?
The timing depends exclusively on the will of the testator as expressed in his will. Most commonly, devolution upon the fideicommissary is stipulated to occur upon the death of the encumbered heir, in which case the timing is uncertain. In other cases, a specific point in time or event is designated (e.g. attainment of majority, marriage, lapse of years). If a judicial dispute arises — for example, a challenge to the validity of the will or refusal to deliver — the procedure may be prolonged by several years depending on the levels of jurisdiction. Conversely, if matters are clear and the encumbered heir is co-operative, delivery takes place immediately upon the occurrence of the designated event.
4. What documents do I need in order to claim the fideicommissum?
Essential documents include the published will together with the publication record from the Court of First Instance, a certificate of non-renunciation and non-contestation of the will, the death certificate of the testator and of the encumbered heir (where required), certificates of next of kin, and a certificate of inheritance where needed. For real property, title deeds, land registry or mortgage registry certificates, and the electronic property identity (Ηλεκτρονική Ταυτότητα Ακινήτου) are required. Any element documenting the condition of the estate at the time of devolution is useful, as well as any evidence of administration or disposals by the encumbered heir. The acceptance of inheritance is effected by notarial deed where real property is included.
5. What tax will I pay when the property is delivered to me?
The fideicommissary is treated for tax purposes as bare owner until devolution and as full owner when the property is delivered. Taxation takes place at the time the inheritance passes to you, but is calculated on the value of full ownership at that time and on the basis of your kinship relation to the original testator — not to the encumbered heir. This may prove favourable or unfavourable, depending on the kinship category. It is advisable to have the objective and market value assessed prior to filing the tax return, in order to avoid late filings and penalties from the Independent Authority for Public Revenue (AADE).
6. What is the role of a lawyer in a fideicommissum case?
Our firm undertakes from the outset the interpretation of the will, in order to determine whether it is a regular fideicommissum, a fideicommissum of the residue, or another form of testamentary disposition, since the distinction determines the extent of your rights. We monitor the administration carried out by the encumbered heir, file applications for interim measures where the estate is at risk, and prepare the action for the recovery of inheritance in the event of refusal to deliver. We draft the acceptance of inheritance, handle land registry and tax matters, and represent the client in any challenge to the validity of the will or dispute with co-heirs. The objective is the secure and complete transfer of the estate to the rightful beneficiary.