Wills and Inheritance Law
Key information regarding inheritance law and making a will in Malta...
Maltese law regulating the distribution of assets upon death may be divided into two principal categories: Intestate and Testate Succession.
If the deceased has not left a will, or if the will is deemed invalid, the division of property is regulated by the law of Intestate Succession. In that case, the law itself awards the relatives of the deceased their prescribed shares in the deceased’s estate.
In the case of Testate Succession, the deceased’s estate is divided according to the will, provided that the will itself is valid for the purposes of Maltese law.
Maltese Law of Succession recognises two principal types of wills:
- Public will.
- Secret will.
The law also provides for privileged wills in special cases where the testator does not have access to the relevant authorities, such as when the testator is at sea or resides in a country where communication with Malta has been temporarily severed. In all of these cases, the testator must have been legally competent to create a will at the time of its drafting.
Requisites for an Eligible Testator
A person is legally entitled to create a Maltese will provided that they:
- have reached the legal age of majority (18 years old)
- are of sound mind, and
- have not been interdicted or incapacitated by court order
Members of monastic or religious orders are not permitted either to receive or dispose of property by will.
A person aged 16 years of age or over may make a will; however, until the age of majority has been reached, that will is limited only to monetary dispositions only.
In the case of secret wills, the testator must also be literate.
Requisites for a Valid Will
In order for a public will to be valid, it must be received by a Maltese notary, and in the presence of two witnesses.
A secret will must be typed or written in indelible ink and sealed by the testator themselves. Provided the testator is not illiterate, there are no formalities to be observed in the actual drafting. The secret will is presented to a notary, or the registrar of the Court of Voluntary Jurisdiction in the presence of a magistrate, along with a signed declaration that the sealed envelope/paper contains the testator’s will.
In all cases, testamentary dispositions (shares in the estate) are made either by singular title or by universal title. In the case of dispositions by singular title (or legacy), the testator disposes a specific item/s of property to a particular person. In the case of universal title, the testator appoints a number of heirs, or a sole universal heir, who will inherit all of the testator’s property indiscriminately, except for what has been bequeathed by singular title in the same will. In all cases, the deceased’s spouse and his or her descendants are entitled to a reserved portion of the deceased’s estate, regardless of the stipulations in the will.
Testamentary Dispositions by Foreign Wills
It is advisable that a foreign national/person domiciled in a foreign country, and who owns property in Malta, drafts a Maltese will for the purposes of regulating property owned in Malta. Where a foreign will bequeaths property held in Malta, special proceedings have to be followed to establish whether or not the foreign will is valid in accordance with the laws of the country where it was drafted and received.
Where a person dies intestate and is not deemed to have been domiciled in Malta at the time of death, the rules of intestate succession of his or her country of domicile apply to property held in Malta. In this case an affidavit of foreign law must be provided by a foreign legal expert.
The time taken for the distribution of an estate in Malta may vary considerably on a case-by case basis, depending on inheritance laws of the deceased’s country of domicile, the size/value of the Maltese estate, and the nature of the property itself.
Inheritance tax is not regulated in Malta. As such, any tax due on a property transfer which has resulted from a death is payable according to standard Income Tax laws. There is also a duty payable on transfers in terms of the Duty on Documents and Transfers Rules with regard to immovable property and registered securities.