Legal Journal: Were your ancestors emigrants? You might own property in Slovakia and you might not even know about it

Massive waves of emigration of Slovak citizens during the 19th and 20th centuries have resulted in many Slovaks and their descendants now living in countries outside the European Union (EU), hereinafter referred to as the “EU”), many of them without any significant contact with Slovakia. Recently, in our practice, we have encountered a phenomenon where, in inheritance proceedings abroad outside the EU, the heirs do not anticipate the existence of real property in the home country of the testator or their ancestor. After inheriting both movable and immovable assets in their home country, they consider the inheritance to be completed.

However, emigrants usually left their real properties in Slovakia, and so it may happen that their descendants living, for example, in the USA, Canada, Australia or other parts of the world, may not even know that they inherited not only in the testator's home country, but also in Slovakia. Most of the time they find out about such immovable property of the testator quite by accident or in other cases even purposefully when searching for their ancestors. We will explain how to proceed if this topic concerns you in today’s Legal Journal.

Mgr. Petronela Rybová, junior lawyer

JUDr. Karol Nagy, attorney

The situation described at the beginning relates to inheritance proceedings taking place outside the European Union (EU). Most often, these are inheritance proceedings in the USA, which have been an immigration destination for many Slovaks, not only in the late 19th and early 20th centuries, but also after World War II and after 1989, but other non-EU countries are not avoided either. In practice, we encounter three cases:

1. A valid inheritance title from a non-EU country contains a specific specification of the real estate corresponding to the requirements under Section 42 (2) (c) of Act No. 162/1995 Coll. on the Cadastre of Real Estate and on the Registration of Ownership and Other Rights to Real Estate (the Cadastral Act), as amended (hereinafter referred to as the "ZKN"), located in Slovakia (in such a case, the heir had knowledge of the testator's property in the territory of the Slovak Republic).
2. A valid inheritance title from a non-EU country contains specific specifications of the real estate located in Slovakia, which, however, does not meet the requirements under Section 42 (2) (c) of the Cadastral Act (in such a case the heir had knowledge of the testator's property in the territory of the Slovak Republic).
3. A valid inheritance title from a non-EU country does not contain specific of the real estate located in Slovakia and only states generally that all immovable property, wherever located, will be acquired by specific heirs (in such a case the heir had no knowledge of the testator's property on the territory of the Slovak Republic at all or had only general knowledge that such property exists somewhere on the territory of the Slovak Republic).

In the first case, the procedure is the simplest. In accordance with Section 63 of Act No. 97/1963 Coll. on Private International and Procedural Law, as amended (hereinafter referred to as "PIL"), decisions of the authorities of a foreign state, agreements and settlements approved by them in the matters referred to in Section 1 of PIL, if they are decided by courts in the Slovak Republic, as well as foreign notarial deeds in these matters, are effective in the Slovak Republic if they have been recognised by the Slovak authorities.

If the Slovak real estate is specified in the will (or any other permissible type of legal remedy in the case of death) according to Section 42 (2) (c) of the Cadastral Act and the other requirements according to Section 42 of the Cadastral Act are met, the heir must apply to the competent Slovak court for recognition of the inheritance decision issued by the state in which the inheritance proceedings took place so that this decision has legal effects also in the territory of the Slovak Republic. After the recognition of the decision, it is only necessary to register the heir's right to the immovable property in the Land Register.

According to Section 34 of the Cadastral Act, “Rights to immovable property that have arisen, changed, or ceased by operation of law, by a decision of a state authority, by a final bidding at a public auction, by adverse possession, by accession and processing, rights to real property certified by a notary, as well as rights to real property resulting from lease agreements, agreements on the transfer of state property management, or other facts evidencing the transfer of municipal or regional property management, shall be recorded in the cadastre by record, based on public documents and other documents.”

The competent district office, cadastral department may make a record without a proposal, but it can also be done on the proposal of the owner or other authorized person. In cases of inheritance abroad, the relevant district office, cadastral department is not expected to have knowledge of such cases, so a record without a proposal is not considered. In such cases, the owner, heir, or their authorized representative must submit a request to the relevant district office, cadastral department for the registration of property rights by record.

If a valid inheritance title from a non-EU country contains specific specifications of real property located in Slovakia that do not meet the requirements of Section 42 (2) (c) of the Cadastral Act or does not contain specific specifications of real property located in Slovakia at all, the mere recognition of the foreign decision would not be sufficient, as even after its recognition, it would not be possible to make an entry in the Land Register, because such a decision is not eligible for the registration of the right in the Land Register.

Although the recognition of the above decision would not secure the heir the registration of the ownership right in the Land Register, it does not mean that there is no way by which the heir would not be able to get the registration of the ownership right in the Land Register. According to Article 17 of the PIL, the law of the State of which the testator was a national at the time of death governs the legal status of succession. Thus, inheritance proceedings in Slovakia will not be governed by Slovak law but, as a rule, by the law of the testator's home state.

The law of the testator's home State will thus also determine the capacity to make or revoke a will, as well as the effects of defects in the will and its manifestation. The same law is also decisive for determining which other types of order-making in the event of death are admissible. The form of the will shall be governed by the law of the State of which the testator was a national at the time he made the will. However, it is sufficient if he complies with the law of the State in the territory of which the will was made.

Similarly, it is necessary to proceed and discuss the inheritance of a foreigner in the Slovak Republic in the following cases: a) If the state of which the testator is a national does not hand over the inheritance of Slovak citizens to Slovak courts, nor does it grant legal consequences to their decisions, or if the foreign state refuses to deal with the inheritance or does not express itself, or b) If the testator was domiciled there and if the heir who is domiciled there so requests,, c) Also whenever the real property in question is situated in the territory of the Slovak Republic (Section 45 (1) of the PIL).

In accordance with the above provisions of the PIL, it will be necessary for the registration of ownership in the Land Register that the Slovak inheritance of the testator be settled in the Slovak Republic. The court competent to hear the inheritance will be the court of the place where the immovable property is located. The court must be presented with a will or any other admissible type of order in the event of death in the petition for initiation of inheritance proceedings, which shows that the petitioner is the heir of the testator.

The Slovak inheritance procedure results in the issuance of a resolution on inheritance, on the basis of which the ownership of the real estate is registered in the Land Register. The notary, as the court commissioner, files the petition for the entry of the ownership right in the land register. If the heir wishes to speed up the process of registration of the ownership right, nothing prevents him from submitting the application for registration of the ownership right in the Land Register himself. He must not, however, forget to mark the legal validity on the order on succession.

What Not to Forget

In the case of interest in inheriting real estate in Slovakia, one should not neglect the fact that the ownership of real estate is associated not only with rights, but also with obligations. One of these obligations is paying local property tax. If the testator showed no interest in the real property in Slovakia, it’s highly likely that no local tax payments were made, which can accumulate to a significant amount over several decades. Even if the city where the property is located has not secured the tax arrears by establishing a lien on the property, which is an effective means of securing tax arrears, it may still enforce its claims directly in the inheritance proceedings.

In the case of unnoticed properties, they may also fall into disrepair. If the condition of the building endangers the life or health of persons, substantial property, or cultural values, and it’s not necessary to remove it immediately, the construction authority may order the owner to carry out urgent safety work, which will represent an additional cost for the heir.

When initiating inheritance proceedings or submitting a request for the recognition of a foreign decision, it’s essential to consider and not forget that the heir will incur necessary expenses associated with the acquisition or ownership of real property.

Last but not least, it should be noted that the heir does not have to travel to Slovakia in order to attend the succession hearings. The heir may be represented by a representative, who may be a lawyer or a natural person with legal capacity, for the entire inheritance proceedings, including the acceptance or rejection of the inheritance.