Probate proceedings, i.e. succession proceedings, are conducted by a court. As a rule, the court in whose jurisdiction the deceased was permanently resident at the time of death is competent to conduct probate proceedings. Judicial steps in probate proceedings are carried out by a notary acting as a court commissioner and appointed for this purpose by the court.
Succession proceedings are generally initiated by the competent court of its own motion after the death of an individual is notified by the registry office. Proceedings are initiated on request only if the applicant is evidently claiming a right to the estate as an heir.
The notary conducts a preliminary investigation, taking all steps necessary to determine the extent of the deceased’s estate and to establish the heirs, devisees, legatees, the executor of the will, administrator of the estate, and other persons whose rights and obligations are at issue in the proceedings. The notary also examines the register of legal acts upon death to determine whether it contains any entries on legal acts or other legal elements (in particular a will, an inheritance agreement, etc.) that are relevant to the proceedings and to the settlement of the inheritance. Anyone in possession of facts relevant to the proceedings and the settlement of the inheritance makes them known further to a request from the notary. Any person in possession of the deceased’s disposition of property upon death or any other instrument relevant to the proceedings and the settlement of the inheritance provides that document to the court on request. This does not apply to any instrument placed in notarial safekeeping. The status and content of such an instrument is determined by the notary in whose safekeeping it has been placed. An instrument is returned as soon as it is no longer required in the proceedings.
The notary notifies anyone who may be considered an heir of the deceased of their right of succession and advises them that they may waive the succession, and what the conditions and consequences of waiving the succession are. If someone who has not been notified by the notary of their succession right is deemed to be an heir of the deceased, pending the final conclusion of the succession proceedings they may assert this right before the court in writing or by making an oral statement for the official record. The notary investigates the succession rights of everyone he or she has notified of their succession right or who has duly asserted a succession right in order to determine whether they have waived the succession or whether their right to waive the succession has expired.
The notary orders a hearing in camera, to which he or she summons the heirs of the deceased, the executor of the will and other parties whose rights or obligations will be at issue at the hearing, as well as their representatives and other persons whose presence is required. Parties to the proceedings are also allowed to attend the hearing even if they are not summoned.
The notary issues a decision that, in particular, establishes succession and, where appropriate, the distribution of the estate among the heirs.
If the deceased has not left any assets belonging to the estate, the court discontinues the proceedings. If the deceased has left only assets of no or little value, the notary releases the deceased’s assets to the person who arranged the funeral, if this person agrees to receive those assets, and discontinues the proceedings.
A notary acting as a judicial commissioner in succession proceedings is entitled to a fee determined in accordance with the scale of notaries’ fees. The fee of a notary acting as a court commissioner that is payable for the steps carried out in probate proceedings is based on the open market value of the estate’s assets.