22-04-2013

Several Characteristics And Distinctions Concerning Inheritance In Albania

Authors

  • Arben Hakani, Attorney at Law
    Office Holder of HAKANI & Associates Law Firm

Which is the legal framework regulating the right of inheritance in the Republic of Albania?

The Albanian legal landscape concerning inheritance appears to be rather specific as compared to that of other European countries due to the fact that, as a result of the production systems, over a short period of time (70 to 80 years) legislation has been made subject to major changes, with such situation surrounding the family law to the same measure. In addition to this, what is particular about Albania regards recognition and application of a number of other laws concerning property right, including the one concerning land of 1991, the selling and purchasing of public property - dwellings, shops - of 1992, and most importantly, that of 1993 and subsequently, which helped redeem the rights denied by the totalitarian State between 1945 and 1990. In Albania, the following contain references to the right of inheritance:

  • Constitution of the Republic of Albania, approved by Law No 8417 of 21 October 1998.
  • International laws concerning the private right, and particularly, the right of inheritance, adhered to and ratified by Albania.
  • Civil Code of 1994, approved by Law No 7850 of 29 July1994, as amended by Law No 8115 of 29 March 1996; by Law No 8536 of 18 October 1996; and by Law No 8781 of 3 May 2001; abrogated Civil Codes.

Other laws that may cover the right of inheritance:

  • Family Code approved by Law No 9125 of 29 July 2003. Abrogated Family Codes.
  • Law No 7501 of 19 July 1991‘Concerning land,’ as amended.
  • Law No 7698 of 15 April 1993 ‘Concerning property restitution and compensation to former owners,’ as amended by Law No 9235 of 29 July 2004, as amended.
  • Law No 7829 of 1 June 1994 ‘Concerning notary public in the Republic of Albania,’ as amended.
  • Law No 10428 of 2 June 2011 ‘Concerning private international law.’
  • Law No 9959 of 17 July 2008 ‘Concerning foreigners.’

Right of inheritance is especially protected in Albania

1. As early as the 90-ies, the political system in Albania relied on the private relationships in production. It could be said that on-going efforts are still being put forth to ensure moving towards some democracy where the fundamental rights and freedoms of the individual are protected and guaranteed through a political body, namely, the State. In civil societies founded on the principles underlying capital protection and build-up, protection of property consists in the existence of an effectively applicable comprehensive legal framework. We can see that the rule of law and equal justice under law are exemplified in the most important piece of legislation, namely, the Constitution of the Republic of Albania1.

2. The right of inheritance, being a vehicle for gaining ownership, is also protected by the Constitution and the law. One of the guarantees expressly stipulated by the Constitution of the Republic of Albania to ensure protection of inheritance, where threatened, includes the obligation of the State to see to it that an orderly legal process is carried out. An orderly legal process presumes all the administrative and judicial processes. With reference to the rights to an orderly judicial process2, the State is under obligation to ensure that the subjects prescribed by the inheritance law have their cases tried by an impartial and independent court, with such trial being fair, public, within a reasonable time-limit, and as defined by law. Protection of inheritance consists also in the enjoyment of the right to appeal a court decision to a higher court. Protection of the right of inheritance is guaranteed by entitlement to have recourse to the court, as well as to an extra-litigation procedure, which, unlike what is the case with many Western legislations, is only followed after the start of procedure of the inheritance. Hence, making an inventory of the hereditary property, and having it preserved and administered by a guardian for that purpose, are some of the ways instrumental in protecting the hereditary property3.

3. A subject enjoying protection of the right of inheritance must mean both an Albanian and foreign national. Under the Civil Code, ‘foreigners shall enjoy the same civil rights and obligations recognised to the Albanian nationals, aside from the exceptions as defined by law’4, as, for instance, where a bilateral agreement of reciprocity is required, and so on.

Which are some of the principles and procedures (in the ‘macro’ aspect), which must be taken into account regarding the right of inheritance in Albania?

1. The main issue in such discussion concerns the Albanian practice of devolution of property from a deceased person to a person alive. Inheritance is obtained as a result of the heirs’ specific qualities or relationships with the testator5. What is specific about Albania is that after 19546 the recognition system of inheritance changed into a beneficiary system, with the latter being still in place nowadays. In Albania, start of procedure of the inheritance takes place upon the death of a person, which is certified by a public act or by a court decision (declared as decedent). Start of procedure of the inheritance relates to determination of the time and place of death; the applicable law; determination of the testamentary or legal heirs; the testator’s estate, and so on. All of these (the time, place, heirs and estate) constitute an institute that is broadly and discretely covered by the right of inheritance. Focussing a little bit on each one of them will help convey a general idea.

2. Determination of the time of death (physical or civil) relates to: the applicable law, which person inherits from which. The law expressly provides for the principle concerning reference to the time of death of de cuisit, and not to the time of the execution of the inheritance, and that where it is not possible to determine which person died before which, then the principle concerning each other’s being cut off from inheritance, commorente, is applied.

Defining the venue for starting the procedure of inheritance is of import to the competent court, and to the applicable law. Hence, procedure of the inheritance is started at the location where the testator had his last domicile, if known, at the place where the property or its largest part is situated7. The principle concerning legislative unity (procedural and material) is also applied in Albania. Hence, the place of death principle (lex succesioni) is also applicable to an Albanian national who dies in Albania. The point is if a person (an Albanian national, an Albanian having two nationalities, a foreigner, or a foreigner holding citizenship of two countries) passes away in Albania or outside of it, and has property in Albania or in other countries. As already mentioned earlier on, for the purpose of starting procedure of the inheritance the Civil Code lays weight on the domicile criterion, whereas a concrete approach to this has not yet come through in the course of the judicial practice. Around 20 years away from the coming into force of the Civil Code, a totally different picture regarding a person’s domicile criterion unfolds given the evolution of the society. Taking into consideration the legislative unity, the question arises: following determination of the venue for starting procedure of the inheritance, which inheritance law will apply - that of nationality, according to the ancient principle that the right due to the second is the law applicable to the former, or the one applicable to domicile, or the one applicable to the usual residential placement?

3. Applicable law (or territorial and material jurisdiction). Under the Albanian legislation, the issue around the applicable law regulating the start of procedure of the inheritance is handled in terms of the status of the testator, and the place of estate. The questions to be asked in such case would include the following: which law will an Albanian court rely on in handling the start of procedure of the inheritance? Whereas in adjudicating matters a local procedural law is applicable, can it base itself on a foreign material law?8 And, will an Albanian judge go about the division of the inherited property on the basis of the judgement handed down by a foreign court concerning the heirs and the property relationships? With reference to the criterion concerning the place to start procedure of the inheritance, the question would be: will the law applicable to the testator (status) or to the place of his estate be the case? If the law applicable to the testator is opted for, the following options would arise: the law of nationality, domicile, or usual residential placement? Whereas regarding the place of estate, the question about the applicable law is: will the same rule apply both to movable and immovable property?

Albania looks forward to joining the European community revealing a specific background concerning the free movement of its nationals after the human exodus in the 90-ies (which is still going on to this date), with their number amounting to nearly 1/3 of the population. Such a considerable number of persons, who have their domicile or place of residence out of Albania, and in many cases have acquired a second nationality, renders the discussion a live topic. Hence, a broader meaning must be extended to the law applicable to inheritance beyond the Civil Code to include both the Albanian and foreign nationals whose domicile and place of residence is in or out of the country, and the estate is located in Albania or out of it. The provisions of Law ‘Concerning private international law,’9 approved several months back, provide the answers to the afore-mentioned questions around inheritance. In terms of the start of procedure of the inheritance and the division of property, regarding movable property, the courts will not rely on the law of nationality, neither on the law of domicile, but on the law of the testator’s usual residential placement10, and regarding immovable property, the law applicable to their location is the case11.

4. Constitution of heirs or entering into the inheritance takes place on the basis of the criterion concerning kinship, adoption, marriage, and cohabitation. Law prescribes 6 degrees of heirs, according to which they become constituted heirs on the basis of the criterion concerning their kinship to the testator. Being a constituted heir relates to their being alive (legal entities if registered with the National Registration Centre), or to the presumption (300 days) as of the time of death of the testator. According to doctrine12, a child is considered to have been born alive when his lungs are filled with air. An adopted child or a child born out of wedlock is considered on equal footing with a legitimate child, with such rule being applicable to siblings born to the same mother or to the same father. A spouse enjoys equal rights with the minor heirs, whereas testamentary inheritance imposes several restrictions13. As is the case with the Western legislations, in Albania an heir may also be cut off from inheritance as specified in the law (undeservedness), or he may waive inheritance within a period of 3 months, but not later than 6 months after the start of procedure of the inheritance. Such waiver, as a unilateral irrevocable act of willpower, may not take place before the start of procedure of the inheritance, neither with regard to one part of the estate, or subject to condition, or to the benefit of an heir. Substitution (appointment for substitution) of an heir takes place according to the principle: at the place, to the extent, and enjoying the rights of the one he substitutes, with such not being applicable to those originally instituted, however, successively applying without limitation to those in direct line, as well as to the siblings’ children and their successors.

5. Upon the start of procedure of the inheritance, the estate to be inherited is also determined. Hereditary property comprises the entire testator’s material goods, as well as the freely transferable rights and obligations created up until the moment of death (devolution). Based on the unimaginable transformations brought about by technology, or the accumulation of capitals through investments in multinational trade companies, and so on, in Albania special attention is being attached to determination of the type of property, or material goods to be inherited. The mandate or power of attorney is not a birthright, but it is effective until substituted by the heirs. The hereditary property, which is capable of being distributed, is considered a property divested of the transferable liabilities and disposals per leg. An heir is responsible for the obligations up to the full value of the testator’s estate.

6. Start of procedure of the inheritance would be equated to gain of property, meaning that both the property and the right of possession are simultaneously passed on to the heir upon the death of the testator. Division (ratios) of the hereditary property is made according to the principle of the equality of parts of the instituted heirs. An exception to such rule, where appropriate, includes the spouse entitled to inheritance and the person unable to work. The part due to the heir, who is not willing to inherit, or cannot inherit, according to the principle of proportionality, passes on to the other heirs (the principle of increase). A person, while still alive, may under contract alienate his property to whomever, not being afraid of impairing the property interests of his heir in the event of death; hence, the principle of devolution of property is not applicable. In addition, unlike such legislations, for the purpose of protecting the heirs of the legal reserve the estate is not divided into available and unavailable property. Such protection benefits the minor heirs and those unable to work, whose part is not affected or reduced by what is disposed of by will, with such rule not being very practical as compared to that governing forced heirship.


1. Articles 4, 11 and 41 of the Constitution of the Republic of Albania.

2. Articles 42 and 43 of the Constitution of the Republic of Albania.

3. Articles 343 through to 347 of the Civil Code.

4. Article 3 of the Civil Code, with this being more broadly covered by Law No 10428 of 2 June 2011 ‘Concerning private international law,’ and Law No 9959 of 17 July 2008 ‘Concerning foreigners,’ etc.

5. Article 364 of the Civil Code. Under such provision, cohabitation does not have the meaning given to it in the family law. Inheritance by law deals with such weird heir of the second degree of kinship at greater length.

6. For more on this, see Order in Council No 1892 of 5 July 1954 ‘Concerning inheritance.’

7. Article 318 of the Civil Code.

8. It does not refer to the international laws adhered to and ratified by Albania, but to foreign internal laws.

9. For more on this see Law No 10428 of 2 June 2011 ‘Concerning private international law,’ abrogating Law No 3920 of 21 November 1964 ‘Concerning rights of foreigners in Albania.’

10. Articles 9, 12 and others of Law No 10428 of 2 June 2011 ‘Concerning private international law.’

11. Article 33/1, 2 of Law No 10428 of 2 June 2011 ‘Concerning private international law.’

12. Civil Code and Family Code are incomplete and ambiguous as regards the person’s legal status.

13. See for this the contents of Article 377 of the Civil Code.

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

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