Trends in the participation of legal entities in inheritance legal relations in modern realities

Abstract

The article examines and analyzes the main problems of participation in inheritance of legal entities. The author examines the forms of participation of legal entities in inheritance relations in a comparative legal context.

The author identifies the forms in which a legal entity participates in inheritance relations, in particular, a legal entity is an heir under a will; a legal entity is appointed as an executor of a will; property rights in respect of a legal entity are inherited and the exercise of inheritance rights requires the consent of either the legal entity itself or all of its participants; a legal entity is created in accordance with a will, and the constituent act is contained in the will; a legal entity acts as a subject of inheritance management or takes measures to protect the inheritance.

The article emphasizes that the above list cannot claim to be exhaustive, and its application raises certain problems identified by the author. At the legislative level, the legal regulation of the forms of participation of legal entities in inheritance and related legal relations is incomplete and is limited to mentioning only the possibility of a legal entity to be a party to certain relations. This situation has led to the fact that most of these forms are not widespread in practice, and some remain unviable at all, being formulated as theses or references rather than full-fledged legal norms.

In the article, the author analyzes the experience of establishing and legal regulation of hereditary and personal (family) funds under the laws of Austria, Liechtenstein, Germany, Hungary, the Czech Republic, and Croatia. The author outlines the ways of their implementation in Ukraine in two main areas. The first involves the adoption of a separate Law on Private Foundations, which would define the requirements for establishing a foundation, their types (lifetime and inherited; family and commercial, mixed, etc.), the procedure for establishment, in particular when establishing a foundation by will, the property to be transferred to the foundation and the procedure for its management, with the minimum amount of contribution to the foundation fixed; the term of the foundation’s operation, and other issues. The law will also address other issues of the foundation’s participation in inheritance relations, in particular when the foundation is the executor of a will, the administrator of an estate, or the person in whose favor the will was made. In addition to the testator’s assets, the foundation may also be entrusted with the task of satisfying creditors’ claims at the expense of the property of the transferred foundation. The second direction involves the introduction of a trust management structure for inherited property, including through trusts, which requires the use of international legal instruments, such as the 1985 Hague Convention on the Law Applicable to Trusts and Their Recognition. As part of this approach, foundations that are not legal entities may be created. The example is not limited to the countries of the Anglo-American legal system. Foreign experience shows that there are trust funds that are not legal entities, along with charitable foundations that, on the contrary, have the status of legal entities.

In the article, the author analyzes other forms of participation of legal entities in the mechanism of inheritance relations, in particular, when a legal entity acts as a creditor of the testator and makes appropriate claims to the heirs.

How to Cite

In accordance with DSTU 8302:2015:
Печений О. Тенденції участі юридичних осіб у спадкових правовідносинах у сучасних реаліях. Цивілістична платформа. 2024. № 3. С. 113-125. https://doi.org/10.69724/2786-8834-2024-3-3-113-125.

According to the international style of APA:
Pecheniy, O. (2024) Trends in the participation of legal entities in inheritance legal relations in modern realities. С. P. Journal, 3. https://doi.org/10.69724/2786-8834-2024-3-3-113-125 [in Ukrainian].

References