Inheritance tax and law
January 31, 2008
The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Moldova: what restrictions there are and whether making a will is advisable.
How high are inheritance taxes in Moldova?
There are no inheritance taxes in Moldova.
Thanks to Law firm Turcan & Turcan
What inheritance laws apply in Moldova?
Inheritance of property is governed by Moldovan laws.
Inheritance issues are regulated by the Civil Code of the Republic of Moldova (Law No. 1107-XV, 06 June 2002), the Code of Civil Procedures (Law No. 225-XV,30 May 2003), and Law on Notarial Activity (No. 1453-XV, 08 November 2002). There are also some bi/multi lateral treaties ratified by the Moldovan Parliament which are applicable on inheritance issues, namely:
- The convention on mutual legal assistance on civil, family and criminal issues concluded between the members of the Commonwealth of Independent States;
- The treaty between the Republic of Moldova and Romania regarding legal assistance on civil and criminal issues;
- The treaty between the Republic of Moldova and Ukraine regarding legal assistance and legal positions on civil and criminal fields - such treaties have also been concluded with the Republic of Lithuania, the Republic of Latvia, Russian Federation and the Republic of Azerbaijan.
The legislation of Moldova does not make any distinctions between foreigners of different religions or nationalities or foreigners who reside abroad. All foreigners are deemed equal, notwithstanding their race, ethnic origin, language, gender, opinion, politic affiliation, property, and social origin. Foreigners who are citizens of countries with which Moldova has concluded bi (multi) lateral treaties on mutual legal assistance come under the provisions of such treaties.
The following principles apply to inheritance of property located in Moldova:
- Lex patriae applies to inheritance of movable property, i.e. the laws of the owner's nationality regulate the inheritance of movable assets.
- In cases of intestacy (without a will) lex rei sitae applies to real estate inheritance, i.e. the inheritance of immovable assets is regulated by the laws of the country where the property is located.
- In cases of testate succession (where there is a will) the "foreign choice of law rules" apply. A foreign testator may choose in his/her will the law of the country which is applicable to his/her succession. This is normally the law of the testator's nationality, domicile, place of permanent residence, or country where the will was written. Such law may be different to lex patriae or lex rei sitae.
Moldovan law does not allow "renvoi".
Remission back to Moldovan law is excluded. If the law of a foreigner's nationality, domicile, or personal choice refers inheritance issues back to Moldova, then the foreigner's law remains applicable, even if it provides that lex rei sitae (e.g. Moldovan law, with respect to real property located in Moldova) should apply. Moldovan law refers only to the relevant substantive inheritance provisions of the foreigner's law, and not to the whole of the foreigner's law system.
Spouses of different religions or nationalities are subject to Moldovan law.
The affiliation of one spouse to one nationality or religion and of the other spouse to another nationality or religion has no relevance to inheritance issues. If one spouse is a Moldovan national and the other is a foreigner, then Moldovan laws apply to the inheritance of immovable assets (except for those located abroad) of the Moldovan spouse as well as to the inheritance of immovable assets owned by the foreign spouse in Moldova; unless the will of the deceased spouse provides otherwise.
Inheritance dossiers without conflicts are handled by notaries.
Notaries located in the location of the last domicile of the deceased person or, when such location is unknown, in the location where the inheritance assets are located, handle inheritance dossiers. If the assets are located in various places, the dossier is opened at the location of the most worthy assets.
The general jurisdiction courts are competent to handle any conflicting issues which arise in respect of inheritance cases. When real estate is located on the territory of the Republic of Moldova or the last domicile or the property of the deceased person is situated in Moldova, then the decisions on disputes regarding the inheritance of foreigner's property are expected to be made primarily by Moldovan competent courts.
A notary can handle an inheritance case without conflicts typically within six months. If the heirs fail to accept the inheritance during this period, the court is entitled to prolong such term for another six months. Court trials regarding inheritance issues may last for several (usually from 1 to 2) years.
The intestate heirs are grouped in categories based on their proximity to the deceased, as follows:
Heirs of first category:
- Descendants (children, including adoptive children of the deceased),
- Surviving spouse,
- Privileged ascendants (parents, including adopters) of the deceased. If the descendants are not alive at the moment of succession, they are represented by their descendants, i.e. children, or if the latter are not alive- by grandchildren, or by grandnephews, etc., who will deem to be considered as first grade heirs of the deceased;
Heirs of second category:
- Privileged collaterals (brothers and sisters),
- Ordinary ascendants (grandmothers and grandfathers) of the deceased. If privileged collaterals called to inherit die before the deceased, their right to inherit goes to their children, or if the last are not alive - to their grandchildren.
Heirs of third category:
- Ordinary collaterals (uncles and aunts) of the deceased. If ordinary collaterals called to inherit are not alive at the day of succession, they will be represented by their children.
The persons primarily called to inherit are the heirs of the first category. If heirs of a previous category are absent, or waive their inheritance, or are deprived of the right to inherit, then the heirs of the subsequent category are called to inherit. The state succeeds the deceased in property only if there are no intestate or testamentary heirs, or all of them waive the inheritance, or are deprived of the right to inherit.
The persons called to inherit receive equal ratios. For example, if intestate heirs of a deceased person are represented by a spouse and two children, then the estate is divided into 3 equal portions.
Wills written under Moldovan law must include a reserved portion.
If Moldovan law is applicable, then the discretion of the testator is limited because a reserved portion (successor reserve) of the estate must be established.
The reserved portion must go to the surviving heirs in the first category, i.e. children, spouse, and parents who are unable to work. The reserved portion of a forced heir is not less than 50% of the estate which would otherwise go to him/her according to the rules of intestate succession. The residue of the estate may also go to the willed heirs, in the same proportions as those initially assigned to them in the will.
Moldovan legislation establishes the following solutions regarding the value of the estate willed to forced inheritors:
- When the estate willed to forced heirs has a larger value than the reserved portion legally assigned to them, then such inheritors do not have the right to claim for increased portions, and can obtain only the willed assets.
- When the estate willed to forced heirs has a smaller value than the reserved portions legally assigned to them, then the value of their inheritance can be raised until it reaches the value of the reserved portions provided by law. If the residue (unwilled) portion is not sufficient to attain the reserved portions then their value is raised from the willed estate.
A foreigner who owns real estate in Moldova is advised to make a will.
The making of a will enables a foreigner to avoid Moldovan rules of intestate succession. It is not customary for Moldovan citizens to formally make a will.
A will made abroad is recognized in Moldova if it complies with the formal requirements provided by the national law of the testator, or the law of testator's domicile, or the law of the country where the will is made, or the law of the country where the immovable assets are located, or the law of the court or other competent authority that handles the inheritance case. The substance of the will should be governed by the law chosen by testator, or, in the absence of such law, by the law of the country where the will has the strongest connections (e.g. the law where the assets are located or the national law of testator) or by the law of the country where the will is made.
Moldovan law admits three types of will:
- An holographic will is a private deed personally handwritten, dated and signed by the testator.
- An authenticated will is authenticated by a notary (or in specific situations, when there is no notary, by certain established by law individuals such as chief of hospital, asylum, sanatorium where the testator was institutionalized, etc.). In practice the notary personally collects the will in respecting the wishes of testator.
- A secret will is written (not necessarily handwritten), dated and signed by the testator, afterward enclosed and delivered to a notary who applies the authentication text and signs on the envelope together with the testator. The notary is unaware the will content.
If the testator is not able to sign the will, it may be signed by another individual in the presence of a notary and two witnesses. If the testator is illiterate or deaf, blind, or dumb, his/her will is made in the presence of two witnesses and a person who can communicate with the testator and is signed by the testator.
If a foreigner decides to make a local will, his/her presence in Moldova is required and no representation of the testator by lawyer or other persons is admitted, except in the above mentioned specific cases.
A will regarding the estate of a foreigner may be made abroad and afterwards be recognized as valid and applicable in Moldova.
The owner is entitled to dispose freely of property during his/her lifetime.
There are a few restrictions. Moldovan laws prohibit the donation by the owner of his/her property (excepting insignificant gifts) to the owners, managers, staff members of the medical, educational, social assistance or other similar institutions where the property-owner or his/her spouse or relatives up to the forth degree are institutionalized.
Gifts can be challenged during the lifetime of the owner, or after the owner's death, if there are grounds for revocation i.e. the beneficiary committed illegal acts (e.g. attempted to murder the owner or his/her close relatives), or refused without reason to support the owner (when such support was a condition for the donation). After the owner's death, a challenge can be only made:
- by the heirs of the deceased property-owner;
- within one year from the day of the grounds for revocation appearance;
- before the expiration of a one year period after the owner's death.
Ownership rights of real property must be registered.
Moldovan legislation looks at registered ownership and registered rights to determine the owners of real property. The ownership of real estate in Moldova arises on the day of registration of ownership rights in the Register of Immovable Assets. Sometimes (mostly due to the inaccuracy of cadastral officers when registering the title) the co-owning spouse can be omitted from the Register, although he/she still has a valid co-ownership right over real estate.
No registration is required for the transfer of movable assets. A person who possesses movable property is considered to be the owner unless the opposite is proven. Normally the ownership right over movable assets is acquired at the moment of transfer. In certain cases the law or an agreement may provide a different time for gaining ownership of movable assets (e.g. the parties of a sell-purchase agreement may agree that ownership will be transferred from the seller to purchaser before or after the transmission of the property, or the ownership of shares ipso legi is at the time of recording the transfer with the Shareholders Register)
The spouses' ownership right over joint property gained during marriage is determined by the law of the state where spouses have current common residence, or in absence of it - where the spouses had their last common residence. In the absence of common residence the spouses' property located on the territory of Moldova is governed by Moldovan legislation.
In Moldova the property gained by spouses during their marriage is the spouses' undivided property. The sole property of each spouse is the goods gained by him/her before marriage, and the goods donated to, inherited or gained on another gratuitous basis during the marriage, by each of them, as well as goods of personnel usage. As a general rule in the case of division of spouses' common property, each of them is entitled to 50% from the common property.
Children can inherit property.
Children not of legal age are entitled to inherit property, but they are not entitled to manage and dispose of inherited property. It is the responsibility of a trustee or guardian to manage the property inherited by minors. Trustees or guardians cannot be appointed by will. The guardians of minors are represented by their parents. In other cases guardians or trustees are appointed by the trusteeship authority.
Agricultural land cannot be inherited by foreigners.
If a foreigner inherits agricultural land located in the Republic of Moldova, he/she is under the obligation to sell the land within one year period. If such an heir does not sell the land, the land shall be forcefully sold on the basis of a court ruling, and the proceeds from sale shall be transferred to the heir.