The custody of instruments and wills
The reason of depositing documents with a notary is to facilitate providing evidence in the future if necessary, or ensuring rights and priorities. The notary draws up records upon the receipt of an instrument. The notary has to ascertain that the content of the instrument is in accord with what the depositor indicated, thus a deposit may not be handed over in a sealed envelope. The deposit of instruments may bear significance when evidence is presented, e.g. in the event of a dispute an author may be able to prove that a work under copyright was in fact written by him/her, thus he has priority over it. The notary may only release the instrument to the depositor, or to a third person – after certifying his/her identity – designated by such depositor. The depositor must specify the time when the notary is entitled to release the instrument, so the safekeeping cannot be for an indefinite duration. The same rules apply to the custody of promissory notes, bills of exchange and information data carriers.
A testator in order to have his/her will in a safe custody and to ensure its execution may only hand it over to a notary in person. Such safekeeping of a will may be made as in the form of a so called ‘open’ or ‘closed’ deposit. In the latter case, the client presents a sealed envelope to the notary stating that it contains his/her own will, but the notary cannot verify it. In case of an allographic will, that is which is not written by hand, it is sufficient if only the testator places his/her signature onto it without any witnesses pursuant to the Civil Code. The notary prepares a record on the receipt of the will, and stitches it to such will. The notary may only return the deposited will to the testator him/herself, and if he/she is deceased, shall send it to the notary in charge of conducting the probate proceeding.
Fiduciary services (money and securities)
Money, valuables and securities in public circulation may be placed in the custody of a notary if they were related to a transaction incorporated into a notarial deed so that such notary is assigned to release or pay it to the other contracting party or to a third party.
The Civil Code provides for a notarial escrow as an alternative to the deposit in court if the conditions for settlement by way of court deposit are satisfied (CC § 6:56).
If either of the four alternative conditions laid down in CC § 6:53 (1) are met, a notarial escrow or a court deposit may be used to settle a debt:
The debtor may settle his obligation to pay cash or deliver securities or other documents by way of court or notarial deposit if:
a) the identity of the creditor is uncertain, and the debtor is unable to ascertain the creditor’s identity by no fault of his own;
b) the creditor cannot be found at the place of settlement;
c) the creditor refuses to accept performance properly offered by the debtor; or
d) in the case of a collectivity of creditors, the latter do not permit the debtor to pay each of them.
The jurisdiction of the notary is determined by the location
a) of the domicile or place of residence, registered office or branch office of the beneficiary,
b) where the obligation to be fulfilled by the escrow deposit was created, or
c) of the place of settlement.
The application to place money in escrow is to be made personally by the depositor or a representative in the competent notary’s office. The sum of money to be placed in escrow is to be indicated specifically and in forints, subsequently such sum increased by the procedural fees is to be paid by transfer to the national Chamber’s escrow account in forints.
The notary does not issue any decree on the acceptance of money as escrow, but attaches a clause stating ‘The notary has accepted the escrow deposit’ to the application.
The depositor may reclaim the deposit until the notary notifies the beneficiary on the escrow deposit.
In the event the person of the beneficiary is known to the notary at the time the deposit of funds is made, the notary serves a decree on such beneficiary on the depositing and on the possibility to apply for disbursement within 15 days of having taken the escrow deposit. However, if the person of the beneficiary is not clear to the notary at the time the deposit of funds is accepted, such decree will have to be served on the beneficiary within 15 days of having ascertained the person of such beneficiary. If the beneficiary provides proof proper of in person or by a representative before the notary of him/her being the beneficiary, the notary notifies him/her on the deposit of funds in escrow and the possibility to apply for disbursement – provided it had not already been done so -, and records the occurrence of such facts in minutes.
The notary who accepted the deposit shall also be responsible to issue a decree on the disbursement of the deposited funds. Such disbursement of funds may be made upon application, request or ex officio. The latter is the case if the term as specified in the application for holding the funds in escrow expired. The application for disbursement shall be made on a standard form issued by the MOKK and completed in full detail, and submitted to the competent notary at his office in person or by a representative.
In the event any excess funds remained on the escrow account following disbursement, such remainder shall be transferred back by the MOKK if it is ordered to do so.