Probate proceedings

By virtue of Section 2 (1) of Act XXXVIII of 2010 on probate proceedings (hereinafter Probate Act) probate proceedings are non-contentious civil procedures in which the notary’s procedure is equivalent to the procedure of a court of first instance, and may deliver decisions having the same effect as a court judgement. The decisions of notaries may be appealed against to the regional courts.

The aim of the probate procedure is to establish succession as to the property of the deceased. The notary having jurisdiction in conducting such procedure is determined by the last domestic domicile or place of residence of the deceased; failing this depending on the place of the estate where death occurred, failing this depending on the location of the estate, or if none of these apply the Hungarian Chamber of Civil Law Notaries designates a notary to conduct the case upon the request of an interested party in succession. The above shall apply in the respective consecutive order.

It is the task of the notary to provide independent and impartial assistance to the parties concerned in the probate proceeding, and to inform them on their rights and obligations. The notarial procedure is preceded by the preparatory work of the competent local government corresponding to the jurisdiction of the notary’s seat in charge of the probate procedure. Following the town clerk’s inventory of the estate the notary proceeds to prepare the probate hearing. The notary shall only set a date for the hearing if all necessary data are available to clarify the facts of the case. Due to the fact that the notary is required to pursue correspondence with the authorities or organisations concerned by postal service, the preparation for the hearing may take several months.

Following the preparations the notary may set a date for the probate hearing. Parties concerned in the probate proceeding are summoned. If a person in spite of having been duly summoned fails to attend the hearing personally or by a representative, it shall not prevent the notary from holding the hearing and awarding the estate or closing the procedure by way of some other decree.

The heir may convey a part or the whole estate to a co-heir, an heir not directly concerned in the probate proceeding, or an estate creditor at the probate hearing. It is in the interest of the heir that the acquiring party be present at the hearing, or have his/her statement filed. Failing this the notary shall not take the transfer of the estate into consideration. The surviving spouse, or heirs in rem may also request the redemption of the right of survivorship of the spouse at the hearing.

The parties (interested parties in the probate proceedings) and representatives shall exercise their rights in good faith, and are obliged to fulfil their obligations related to the proceeding. They are under an obligation to present or submit their statements and facts in due time – depending on the phase of the proceedings - to enhance the diligent management of the procedure.

At the hearing the notary establishes the facts required for the award of the estate (decision on the assets), the prevailing order of succession in the specific case, and that who and on what grounds has claims as against the estate subject to the expressed statements and the available documents. Upon the clarification of the facts of the case, the level of kinship between the deceased and the person claiming to be the heir has also to be established.

Following the closing of the probate hearing the notary delivers the decree and announces the award of the estate, against which an appeal may be lodged to the regional court with jurisdiction in the territory of the seat of the notary.

The costs of a probate proceeding consist of a fee and costs specified by the regulation on notarial rates and tariffs (notarial remuneration). The remuneration of the notary shall be borne by the heir(s); in the absence of such a person, the person who submitted a claim as against the estate. If several people are liable to pay for the probate procedure in advance or otherwise, such liability shall be joint and several.

It must be pointed out that the Hungarian notary does not only assist in the probate procedure, his/her involvement is not of a preparatory or ancillary nature, but conducts the whole procedure from its commencement to the end, and exercises discretionary and decision making powers when establishing the facts and delivering decisions in the course of the proceedings. Moreover, in particular phases of the procedure pursuant to the general provisions of Act III of 1952 on the Code of Civil Procedure (hereinafter CCP) conducts an evidentiary procedure [e.g. Probate Act § 97 (2)]. A settlement approved by a notary’s decree has the same effect as a settlement approved by a court, that is, such a notarial decree not merely has formal but substantive force as well (res iudicata).