Pozivanje naslednika oglasom i naslednopravni položaj države u srpskom pravu

Abstract

If it is unknown to the court whether the decedent has any heirs, or if the court suspects that the person who has a claim on the inheritance may not be the only or the closest relative of the decedent, the court shall publish a notice inviting people who have a claim on the inheritance to report to the court within one year from the publication of the notice. The public notice or invitation to the possible unknown heirs represents a compromise between the investigative principle in the probate proceedings and the need to bring such proceedings to an end within reasonable time. Following the public invitation by the court, the consequences of failure to identify all possible remaining inheritors shall depend on the identity of the known heir(s). If the known heir is a private entity, the court will declare them as heir. But, if the sole inheritor is the State, it will only acquire the usufruct of the estate, not legal ownership, with the possibility of acquisition of a title or right to property by uninterrupted and undisputed possession for a prescribed term of three years for movables and ten years for real estate. Th ese time limits run from the moment of the decedent's death. After examining the practical consequences of these rules, the author concludes that, by prescribing a special regime of succession for the State as inheritor when the unknown heirs are invited by public notice, the legislator has put the State in a privileged legal position in comparison to private entities. Th e special regime facilitates the transition of the estate from private to public ownership, which is contrary to the principle of the private legal nature of succession. In addition, the rules for allocating inheritance to the State are legally and dogmatically deficient because they are contrary to the principle of universal succession and ex lege inheritance (since at the moment of the decedent's death no one becomes the heir and the legal owner of the estate) and with the general rules on the acquisition of property by acquisitive prescription (as the existing rules enable the usufructuary to become the owner after the passage of the prescribed time period).