The right of representation and inheritance transmission are old classical institutes of inheritance law that originate from Roman law, and which are applied in our inheritance law according to the Law on Inheritance (Official Gazette of RM no. 47/1996 from 12.09.1996).
Although we are talking about two different legal institutes of the inheritance law, very often in our practice these two legal institutes are equated.
Namely, the right of representation is the right of the descendants of a person who for any reason has not become a legal heir (has not outlived the testator, is unworthy of inheritance, is excluded from inheritance or has renounced inheritance only in his own name) to become heirs of the testator and to inherit the part that would belong to their ancestor.
The right of representation applies only to the benefit of the children and other descendants in a straight line, but not to the benefit of the testator’s spouse.
Contrary to the right of representation, in order for the institute of inheritance transmission to take effect, it is necessary for the heir to die after the death of the testator without giving a statement whether he is accepted as an heir.
The right of the heir to give a statement whether he is accepted as an heir or not, passes to his heirs, which is essentially an inheritance transmission.
Given that in the case of inheritance transmission, the right to inheritance has all heirs, as an heir based on inheritance transmission can also appear and the spouse.
Hence, the inheritance transmission applies only in the event when the descendant dies after the testator’s death, but before declaring whether or not he is accepted as an heir, as opposed to the right of representation which applies in many cases – if the descendant has not outlived the testator, if the descendant is unworthy of inheritance, if the descendant is excluded from inheritance or if the descendant has renounced inheritance only in his own name.
Furthermore, inheritance transmission applies to all heirs, as opposed to the right of representation which applies only to the benefit of the descendants. Inheritance transmission, unlike the right of representation, has a wider field of application because it applies to both legal and testamentary inheritance, as opposed to the right of representation which finds application only in legal inheritance.