In this article, we will talk about the provisions of inheritance in the Personal Status Law No. 188 of 1959. The article will address the concept of inheritance, its pillars, and conditions, and how it is divided?
What is inheritance (1)?
Inheritance is the transfer of goods (such as the deceased’s money or property) from one person (the inheritor) to another person (the heir). This refers to the transfer of the deceased’s ownership over these goods to his\her living heirs, whether the good is money, real estate, or a legal right.
Inheritance usually includes three pillars:
- Inheritor: is deceased.
- The heir: is the person(s) who is/are entitled to receive the inheritance from the inheritor by the law.
- Inheritance: It is the money of the deceased that the heir receives.
Two reasons for inheritance are consanguinity and valid marriage
What is an estate?
The estate is everything that a deceased person possesses or owned, meaning that it includes all the money and property owned by a particular person, especially at death.
What is the difference between inheritance and estate?
Estate: includes all the rights, money, and property owned by a particular person, including the right to process and proper handling of the deceased’s body, spending his\her debts, and carrying out his\her will.
Inheritance: refers to the ownership of the deceased transferred to an heir through the laws of descent after clearing the estate from all rights. Though sometimes used about property acquired through a will, the legal meaning of inheritance includes only property that descends to an heir through intestacy, when a person has died intestate (without a will)[1].
Accordingly, it can be said that the estate is the money and the rights related to it, including the debt owed by the deceased. Inheritance refers only to the money and property from the estate to which no rights have ever been attached.
The following categories may be beneficiaries of inheritance:
- Inheritance by kinship (relatives up to the fourth degree) and spouses
- Acknowledgment of a person's lineage (recognition of a person's lineage).
- The legatee (the person who obtains the heir according to the inheritor's will).
- Bona vacantia or unclaimed property (when the deceased has no will or living heirs, the money transfers automatically to the government)
What are the deceased rights as part of the estate after the death of the inheritor?
- Handling the deceased body after death according to each religion or Sharia Laws.
- Paying off debts, all of which are taken out of the deceased’s money.
- Executing his or her will by taking out the third of what was left of his or her inheritance.
- Giving the remaining inheritance to those who deserve it.
Who are the heirs in cases of distribution of inheritance by kinship?
- Parents, children (the male takes twice as the female share).
- Grandfathers, grandmothers, brothers and sisters, and children of brothers and sisters.
- Uncles, aunts (father’s and mother’s brothers and sisters), and relatives of the deceased.
What is an heir deed?
It is to identify the legal heirs of the deceased and determine the number of their inheritance shares, so that the heirs can later benefit from the legal proof of heir deed documents (for example, during conducting a transaction for the property transferring from the inheritor (the deceased) to the heir). This would also enable the heirs to use this document during other transactions that require the heir's deed, such as the distribution of the pension to the heirs of the deceased. According to the Civil Procedures Law No. 83 of 1969 and Personal Status Law No. 188 of 1959,
An heir deed will enable the beneficiary to:
- Enables the heirs to obtain their shares of the inheritance after the death of the inheritor.
- Obtain the pension for the heirs if the deceased inheritor was an employee.
- Obtain proof of guardianship in case a minor is involved.
What are the documents required to issue the heir deed?
- An application to the Personal Status Court.
- Civil status identity document of the applicant.
- Residence card for the deceased.
- Civil status identity of the deceased.
- A copy of the verification form of the original civil document from the Civil Status Department.
- A copy of the death record from the office of births and deaths.
- A copy of the death certificate of the inheritor.
- A copy of the identity documents of the witnesses.
- Report of the judicial expert.
What are the steps required to obtain the heir deed?
- The heir will submit a request to the Personal Status Court, according to the address of residence of the deceased, to obtain the legal heir deed. This request may be submitted by one of the heirs, a represented on their behalf, or a lawyer representing them.
- The application is stamped by the Mukhtar of the neighborhood and the municipal council.
- The court will refer the request to the specialized employee to review the request.
- Then the court sends a letter to the Civil Status Department to obtain a copy of the verification form of the original civil document.
- The court also sends a letter to the Office of Births and Deaths to obtain a death record copy.
- Refer the heir deed applicant to the Minors’ Care Department if there are minors. In the case of minors, the court will follow the following procedures to guarantee the rights of the minor heirs:
A- Sending a letter to the Real Estate Registration Department to verify whether there is a property in the name of the deceased or not.
B- Sending a letter to the Traffic Directorate to verify whether there is any type of vehicle or car in the name of the deceased or not.
C- Sending a letter to the banks to verify whether there are funds and deposits in the banks in the name of the deceased or not.
- The heir deed request is submitted to the specialized employee in the court of audit for further review.
- The Court of Audit sends the request to the judge.
- The judge summons two witnesses other than the heirs (for example relatives or neighbors) whose names are mentioned in the request, and the judge encloses the testimony of the two witnesses in the heir’s deed request file.
- The judge will then refer the request to the judicial expert to divide the shares, and then refer it back again to the judge.
- The Court employee delivers the application file to the applicant to pay the legal and stamp fees at the Accountant's Office, attach the receipt to the file, and hands it over to the judge.
- The legal heir deed will be issued by the Court.
If the deceased inheritor was a governmental employee, who is entitled to his or her pension?
- The daughters, until they are married or employed, or if the daughter was divorced or widowed (in other words, if she is married or has government employment, she cannot receive the pension).
- Children under the age of 18 years
- The sons of the deceased if they are students at school or university.
What are the steps for transferring the pension from the deceased employee to his or her heirs?
- First: Go to the Retirement Department and the Civil Section if the employee is affiliated with a Civil Department, and to the Military Section if the employee is affiliated with a Military Department.
- Second: The heir submits a request for a pension transfer transaction to obtain a family record, which is a form in which the details of the deceased, the date of death, the name of the father, mother, wife, children, and nationality information are filled out, and attached with the Legal heir deed.
- Third: The Retirement Department will deactivate the Q card[2] of the deceased person and sends a letter to the Civil Status Department and the Financial Department to inform the Department about the death of the retiree and cease his\her pension payment. The pension will be returned to the state treasury, and, after completing the transaction, these funds will be returned to the eligible heirs.
*Note: A copy of the verification form of the original civil document and guardianship certificate must be attached if the deceased retiree had minor children.
- Fourth: The Retirement Department sends a letter to the Social Welfare Department to verify whether the mother, the wife, or the daughters of the deceased have a social welfare pension or not.
- Fifth: The heir (or the person who is doing the transaction) requests from the Civil Status Department to submit a letter to the Deaths Department and obtain a verification record of the death certificate and requests a letter of death record of the deceased.
- Sixth: The Retirement Department sends a letter to the General Secretariat of the bank from which the deceased received his\her pension, informing them of the death of the employee and stopping the payment of the pension until the completion of the transaction procedures, knowing that the location of the general secretariat of the bank is in the Central Bank of Iraq.
- Seventh: The Retirement Department will inform the heir or the person responsible for the transaction to return to the Retirement Department after a certain period (for example, a month) to receive the completed transaction file and to receive a new Q card that enables the heirs to receive the deceased's pension.
- Eighth: Upon receiving the transaction file, the person responsible for the transaction must go to the Central Bank with the transaction file and the new Q card to verify the amount of money available in the bank account, then return to the Retirement Department to receive a check of the said amount along with the new Q card.
*Note: All the procedures for this transaction take about 40 days until the heirs receive the retirement pension.
- Ninth: A pension identity card is issued to the heirs after completing the required forms and letters by registering the names of the heirs in the retirement department, attached with their photos and their fingerprints in a file that is kept in the Public Retirement Authority.
What are the documents required when transferring the pension to heirs?
- The original copy of the death certificate.
- The Q card or the original retirement ID.
- Photos and civil documents of all Heirs.
Note: If the deceased was an employee, not a retiree, the steps will be the same as mentioned above, considering the replacement of the retirement department at each point with the department to which the deceased belonged (for example, if the deceased was a teacher, the transaction starts from the Department of Education instead of the Retirement Department).
Are the procedures different if the deceased was displaced?
No, it does not differ, there are no exceptions, as legal procedures apply to all.
Is a person entitled to distribute the inheritance before his or her death?
According to Iraqi law, there is no inheritance before a person's death, but a person can transfer the ownership of his/her property to other people according to his/her desire. But, if the inheritor is between life and death and transferred the ownership of his/her property, the heirs can nullify this process according to Iraqi law by appealing the heir’s decisions and actions and seizing her\his property under the pretext that he or she is not in their full mental and health state, Then the procedure is invalidated and the property is either seized or distributed according to the law after the death of the inheritor.
* In the event of the death of the head of the family, a legal guardian must be appointed for the minor children. In this case, a legal guardianship certificate must be issued.
What is the legal guardianship certificate and what is its purpose?
The guardianship certificate is issued in the event of the death of the father of minor children (or the death of the mother and the father doesn’t want to be the guardian), then a person (like the mother or any other family member) who meets the conditions of the guardian will need to obtain this certificate. The purpose of the guardianship certificate is to enable the legal guardian to manage the affairs of the minor if the minor is unable to manage his or her affairs.
What are the required documents to issue a guardianship certificate?
- The heir’s deed of the deceased.
- Civil status identity document for the minor children (original and photocopied).
- The civil status identity document of the father's mother, grandfather, or grandmother.
- The civil status identity document of the mother (if alive).
- Request a legal guardianship certificate from the Personal Status Court
- A statement from two witnesses to verify the guardian’s ability to take care of the minors’ affairs.
What are the procedures to obtain a legal guardianship certificate?
- After completing the legal Heir’s deed transaction, the person who wants to obtain guardianship goes to the Personal Status Court to apply for the guardianship certificate, enclosing in the file the above-mentioned documents.
- The Personal Status Court sends a letter to the Civil Status Department to provide the court with a copy of the verification form of the original civil document.
- The court also sends a letter to the Minors Welfare Department to confirm the department’s approval that the person obtaining the guardianship certificate is eligible.
- After the court obtains the above letters, the testimony of the applicant and the two witnesses are recorded.
- Then the procedures are completed, and the completed file is submitted to the judge to sign the guardianship certificate.
Do I need a lawyer?
An Iraqi citizen can complete the inheritance procedures without the help of a lawyer.
[1] Investopedia
[2] The Q Card is the electronic card that the employees use to receive their pension
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