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Gift Contract for Death Case

Gift Contract and Gift Contract for Death Case

A gift contract is a bilateral legal transaction in which the donor, at their own expense and with the consent of the recipient, enriches the recipient without any consideration. The donor does not receive anything in return for the gift, while the recipient becomes enriched through the gift.

Therefore, the donor is granted special protection by recognizing the right to unilaterally revoke the gift for legally defined reasons. The recipient must fulfill a condition if they wish to retain the gift: they must demonstrate a certain level of gratitude to the donor or, at the very least, not be ungrateful.

Creditors and absolute heirs are protected against the donor's gratuitous disposition of assets, where the donor (as a debtor or testator) would harm their creditors or absolute heirs by depleting their assets through a gift contract. Such gift contracts are invalid. Under legally defined conditions, creditors and absolute heirs (after the donor's death) can challenge and demand the nullification of these contracts.

The above applies to both gift contracts and gift contracts for death cases.

A Gift Promise

A gift promise should be distinguished from a gift contract. In a gift promise, the donor undertakes to transfer ownership to the recipient without consideration. However, this obligation is not fulfilled immediately but at a later time. The donor remains the owner of the property until it is handed over to the recipient, or in the case of a gift contract for real estate, until the recipient is registered as the owner in the land register.

A gift for death case is a type of gift promise in which the donor retains ownership of the gifted item until their death. The recipient acquires ownership rights only upon the donor's death, for example, in the case of real estate, the recipient can be registered as the owner in the land register only after the donor's death. The contract is fulfilled only after the donor's death, and until then, the donor remains the owner and possessor of the property.

The characteristics of a gift for death case are:

  • It must be executed in the form of a notarial deed, and the contract must be handed over to the recipient; otherwise, it is invalid.
  • Like any other gift contract, the donor can revoke it due to distress, grave ingratitude, or the subsequent birth of children. Waiving the right to revoke the gift is void.
  • It has a similar effect to a will, with the difference that the testator can revoke a will at any time without specific reasons, while a gift contract can only be revoked for specific reasons.

 

Absolute Share and Invalidity of the Gift Contract

Both gift contracts and gift contracts for death cases are challengeable if the donor has harmed creditors or deprived absolute heirs of their rightful shares. In the case of deprivation of absolute shares, the gift contract is challengeable only after the donor's death, when the inheritance occurs.

It should be noted that if an absolute heir has received a gift, it is considered part of their rightful share, and other absolute heirs who would be deprived of their share due to the gift have the right to demand that the gift be returned to the estate.

In both cases (creditors and absolute heirs), the enforcement of the claim is subject to a time limit, after which the right to judicial protection ceases.

Gift Contract or Will?

Gift contracts and gift contracts for death cases, as well as wills, are non-gratuitous legal transactions that cannot validly circumvent the rules regarding the absolute share. The right of an heir to the absolute share cannot be deprived through a gift contract or a will.

A gift contract for death cases provides the recipient with a safer solution compared to a will, as it is more difficult to revoke. In this regard, a gift contract in which the gifted item is handed over and ownership is transferred immediately, rather than upon the donor's death, is even safer for the recipient.

The choice between a gift contract and a will depends primarily on the intended purpose and goal. For the recipient, a gift contract is certainly more favorable in terms of the possibility of revocation.

The answer also depends on the timing of the tax obligation or the obligation to pay inheritance and gift tax. With a gift contract, the tax must be paid immediately, while with a gift contract for death cases and wills, the tax is paid only after the donor's death, except in the case of first-degree heirs who are exempt from paying tax.

For more detailed information about gift contracts, please refer to the articles and questions and answers below.

Attorney Jurij Kutnjak from Slovenia, Maribor offers comprehensive legal assistance in inheritance and handling all inheritance law issues: from drafting wills and concluding contracts with inheritance law elements (contract for life interest, contract for lifetime support, handing over contract) to representation in probate proceedings and possible litigation related to the estate or inheritance throughout Slovenia.

To schedule a consultation regarding inheritance and representation in the probate process, call attorney Jurij Kutnjak during business hours at the phone number 00 386/2/25-23-780 or send an email to info@odvetnik-kutnjak.si.

Legal Documents:

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authorization for representation
will, revocation of will, inheritance statement, renunciation of inheritance, proposal for the issuance of a European certificate of inheritance

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