Action for a Declaration that an Item Belongs to the Estate

QUESTION
What is the purpose of an action for a declaration that an item belongs to the estate of the deceased?

ANSWER:
Probate proceedings are concluded by a final and binding resolution of the notary acting as a court commissioner, by which the estate is deemed to be settled. However, it often occurs that even after the final conclusion of probate proceedings, additional property of the deceased is discovered which was not “inherited” either because the heirs were unaware of it or they assumed it did not need to be reported. If only further debts of the deceased are discovered, no additional probate proceedings will be initiated, as under Section 470 of Act No. 40/1964 Coll., the Civil Code (hereinafter “CC”), heirs are liable for the debts of the deceased directly by law (source: Smyčková, Števček, Löwy, Tomašovič et al.: Civil Non-Contentious Procedure – Commentary, 2nd edition, C.H. Beck, 2024, pp. 780–784).

Subject of the Proceedings

According to the Resolution of the Supreme Court of the Slovak Republic, file No. 3Cdo/168/2014 of 26 May 2015:

“By its very nature, proceedings for the additional consideration of ‘newly discovered property’ of the deceased (§ 175 Code of Civil Procedure) imply that, after the final decision on the inheritance, the court may consider as ‘newly discovered’ only property not yet considered in the earlier probate proceedings (not deemed in the previous proceedings to form part of the deceased’s estate).

The fact that (co-)ownership rights of the heir acquired through inheritance have not yet been registered in the Land Register cannot serve as grounds for considering property already deemed part of the inheritance in the original proceedings.

Proceedings under § 175 of the Code of Civil Procedure for newly discovered property are not intended to re-evaluate factual or legal conclusions of the earlier probate proceedings or to issue a new, different decision on the same matter. The initiation of proceedings for the additional consideration of inheritance does not reopen the ‘inheritance case’ as such. The court in these proceedings builds on and follows from the earlier proceedings and their conclusions.

Reconsideration of the same immovable property (§ 175 Code of Civil Procedure) that has already been the subject of a final decision in the probate proceedings is precluded by the principle of res judicata (§ 159 Code of Civil Procedure).”

The procedure for inheriting newly discovered property of the deceased is regulated by Act No. 161/2015 Coll., the Civil Non-Contentious Procedure Code (hereinafter “CNCP”).

Pursuant to Section 211 CNCP:

  1. If, after the final resolution concluding probate proceedings, additional property of the deceased, or possibly also a debt, is discovered, the court shall, upon application, conduct additional probate proceedings regarding this property. If only a debt of the deceased is discovered, additional probate proceedings shall not be conducted.
  2. In justified cases, in particular upon the initiative of the court, notary, state authority, or local self-government body, the court may also commence proceedings regarding the property referred to in paragraph 1 ex officio.
  3. The court shall discontinue the additional probate proceedings if the property indicated in the application was not owned by the deceased.

Under Section 159 CNCP: Local jurisdiction for additional probate proceedings lies with the court before which the original probate proceedings were concluded.

Commencement of Proceedings

Under Section 174(1) CNCP: Proceedings are commenced upon application if it is clear that the applicant, as an heir, seeks consideration of the inheritance of the deceased. It is not necessary for all heirs to submit the application; it suffices if it is submitted by the heir requesting the consideration of the newly discovered property.

The application must contain the general particulars required under Section 127(1) of Act No. 160/2015 Coll., the Civil Contentious Procedure Code (hereinafter “CCPC”):

  • the designation of the court to which it is addressed,
  • the identity of the applicant,
  • the subject matter of the case,
  • the purpose sought by the application, and
  • the signature.

Under Section 25 CNCP, in addition to the general particulars, the application for the commencement of proceedings must include:

  • the designation of the parties,
  • their representatives, if any,
  • a true and complete description of the decisive facts,
  • the designation of evidence supporting those facts, and
  • it must be clear what relief the applicant is seeking.

Under Section 26(1) CNCP: The applicant must attach to the application documentary evidence on which they rely (e.g., the deceased’s death certificate, documents proving the deceased’s ownership of the newly discovered property, etc.).

Even though proceedings are commenced upon the application of an heir, who must, among other things, identify evidence supporting their claims, such proceedings have a “non-contentious nature” and the inquisitorial principle applies, under which it is the duty of the court to establish the facts of the case (Resolution of the Supreme Court of the Slovak Republic, file No. 5Cdo/241/2013 of 9 April 2014).

“Proceedings for newly discovered inheritance are proceedings in which the inquisitorial principle applies, and therefore nothing prevents the court from substituting the failure of the parties to fulfil their duty to allege facts and provide evidence with its own activity (Resolution of the Regional Court in Košice, file No. 9CoD/3/2020 of 24 November 2024).”

Pursuant to Section 211(2) CNCP, proceedings for newly discovered inheritance may also be commenced based on the initiative of a person other than an heir. In such case, the court initiates the proceedings ex officio by issuing a resolution. If the proceedings are commenced without an application, the court shall serve the resolution initiating the proceedings on the parties in person (Section 27 CNCP).

Parties to the Proceedings

According to case law, the parties to additional probate proceedings are only those heirs who were parties in the original proceedings, or their legal successors (e.g., SJ 131/2004).

Court Fees

Court fees payable in probate proceedings are governed by Act No. 71/1992 Coll. on Court Fees and the Fee for an Extract from the Criminal Register (hereinafter “Act No. 71/1992 Coll.”).

According to Item 18a of the schedule of court fees, the court fee for probate proceedings is:

  • €10 if the net value of the estate does not exceed €3,319,
  • €25 if the net value of the estate does not exceed €9,958,
  • 0.2%, but not more than €250, if the net value of the estate exceeds €9,958.

For filing an application for the probate of newly discovered property, the court fee is 1% of the net value of the estate to be considered, with a minimum of €10 and a maximum of €250.

The fee payer in probate proceedings is the heir (Section 2(1)(d) of Act No. 71/1992 Coll.). The obligation to pay the court fee arises upon issuance of the decision on the inheritance (Section 5(1)(c) of Act No. 71/1992 Coll.). The fee is payable upon the arising of the obligation.