It acts as an alternative to probate inheritance, but the legislator gives preference to probate inheritance. A will is a citizen’s disposal of his property in case of death, made in the manner prescribed by law. Under the order refers to the power, property belonging to him at his discretion to decide the fate of the property after death. The priority of inheritance by will is one of the key principles of inheritance as a whole. Any citizen, if he wishes, can dispose of his property by bequeathing it to anyone, individuals or legal entities, independently determine the shares of the heirs, deprive the inheritance of one, several or all heirs without indicating reasons, include other testaments to the will.
The decision to increase the share in the inheritance
The heirs after the death of the mother are the plaintiff and defendant, who are each other's siblings. The plaintiff, living with his mother, bore the burden of her maintenance, treatment, in addition, carried out a funeral, and therefore believes that the hereditary share should be increased. And since the plaintiff is a co-owner of the apartment and does not have any other living quarters, he asks that he recognize his pre-emptive right of inheritance with payment of appropriate compensation to the defendant.
The plaintiff at the hearing did not appear, notified, ensured the appearance of his representative lawyer Zhukova OS
1149 of the Civil Code of the Russian Federation). This right to receive inheritance property in the amount of at least half of the share that would be due to such an heir upon inheritance by law, if by virtue of a will such an heir does not inherit, or a portion of the will and property not due to him does not amount to this amount.
The required share is inherited regardless of the contents of the will. When determining the size of the mandatory share in the inheritance, the value of all inheritance property (both in the bequeathed and in the non-promised part), including items of ordinary home furnishings and household goods, should be taken into account, and all heirs under the law who would be called upon to inherit this property should be taken into account (including heirs by right of representation), as well as heirs by law, conceived during the life of the testator and born alive after the opening of the inheritance (paragraph
What is hereditary mass?
The hereditary mass consists of an asset and a liability.
The assets of the testator, his rights belong to the hereditary asset. The liability includes exclusively obligations.
Those rights shall be inherited that arise from contracts concluded during the life of the testator.
The hereditary mass is compiled on the basis of the following claim rights:
- Income due to the deceased
- Repayment of funds issued in loans by the testator,
- Compensation for harm caused to both the life and health of the testator and his property.
In addition to rights and property, heirs may receive from a deceased relative a whole set of debt obligations.
The heir has the right not to enter into an inheritance, which includes debt obligations that are beyond his strength.
In this case, you can simply ignore the notary's notifications about the need for inheritance. When the time allotted for this by legislation ends, the inheritance will simply be distributed among those heirs who have expressed a desire to receive it.
However, the heir cannot receive liabilities in an amount greater than assets. The legislation provides for the protection of heirs from excessively high debts. That is, for example, if the heir receives property worth 300 thousand rubles and debts of 500 thousand rubles, then by law he will have to pay obligations in the amount of 300 thousand rubles.
The composition of the hereditary mass
The hereditary mass or composition of the inheritance as a legal concept is indicated in Art. 1112 of the Civil Code of the Russian Federation. According to the norm, the following objects are included in the hereditary mass:
- Property - material things, cash, securities. These include apartments, cottages, land, houses, vehicles, personal items, money and bank deposits.
- Property rights are any benefits that are due to the deceased from the use of a property. This may be dividends and interest on the deposit, the funded part of the pension, rental income, royalties.
- Property obligations - requirements that should have been paid to the testators in life due to their possession of certain things. Most often, the heirs receive property debts with property. Having received an apartment, they have to pay debts on utility bills and property taxes.
The heir must not take and refuse part of the property. He has only two solutions: to accept the inheritance in full or to refuse everything that was supposed to him by law.
In order for the property to be included in the estate, a documentary evidence of its ownership by the testator on the basis of ownership is necessary.
Thus, the inclusion of a residential building or the inclusion of an apartment as part of the family estate in each individual case depends on the availability of confirming rights of the deceased documentation.
When it comes to personal items, such as washing machines, bicycles and other household items, witness testimonies are taken into account to confirm their belonging to the deceased.
In the same article of the Civil Code of the Russian Federation, where the property to be inherited is indicated, the legislator reflects a list of those objects and rights that cannot be inherited by will or by law.
Property that is not part of the hereditary mass includes:
- Personal non-property rights, such as, for example, privacy of correspondence,
- Property that does not belong to the testator on the basis of ownership (rented car, non-privatized municipal apartment),
- Property rights and obligations that could be performed only by the testator. This is, for example, the obligation to pay child support, compensation for non-pecuniary damage, a license to sell alcohol or carry weapons.
Many are interested in the question of whether insurance payments are included in the estate, because they relate directly to the testator.
Insurance compensation is paid to the heirs, but the insurance is terminated in such cases. Heirs can no longer get life or health insurance that a deceased relative had.
Inclusion of property in the estate
If a testament appears as the basis of inheritance in a hereditary case, the list of the hereditary mass shall be indicated in it. Or, an inventory is made by a notary to him in the presence of two witnesses and in the presence of the heirs.
The inventory shall contain information of the following nature:
- List of inherited property
- Documents proving the testator’s ownership right to him,
- A detailed description of these things,
- Their cost characteristic.
This document is mandatory signed by a notary and heirs. If witnesses or the custodian of the property took place in the case, they are also required to affix their signatures to it.
Based on the inventory, the shares of the heirs are formed and the value of the notarial tariff for each heir is determined.
If the heirs do not agree with the decision of the notary not to include certain property in the estate, they have the right to challenge this decision in court.
To do this, the heirs need to file a lawsuit with the district court, which requires the following information:
- Data about the testator,
- Property that is subject to challenge for belonging to the hereditary mass,
- Information about the notary who opened the inheritance business,
- Information about other heirs, indicating the degree of their relationship with the deceased testator,
- Request for inclusion of property in the estate,
- Evidence of the validity of such inclusion and ownership of property to the testator.
The judge is obliged to appoint a case and call all parties to establish the circumstances of the problem.
If the court proves that the property really belonged to the testator, then it will be included in the estate.
The exclusion of property from the estate
The right to exclude this or that property from the estate is vested in all interested parties. This procedure is executed in the same way as the inclusion of an object in the hereditary mass - through a trial.
In this case, it is also required to file a statement of claim with the district court and present substantial evidence for such a legal decision as the exclusion of property from the estate.
It turns out that if one of the subjects has reason to believe that, for example, an apartment cannot be the subject of inheritance, he must declare this in court.
So, the spouse can ask the court to exclude the apartment from the estate if it is the subject of jointly acquired property and, on the basis of the legal norm on the marital share, should go to her.
It is one thing to receive inherited property under the law, it is quite another to correctly dispose of it further. The potential heirs always have many questions about the taxation of such property.
All citizens, regardless of what the general hereditary mass consists of, degrees of kinship and other features are exempt from paying taxes. However, there are exceptions to this rule too.
In particular, income tax in the amount of 13% of the property value must be paid by the heirs to the following inheritance objects:
- Incomes as a fee on literary works received by the testator,
- Revenues from the sale of art and musical creations,
- Income derived from the inventions of a deceased testator.
After the inheritance of the property by the new heir, when the ownership of it passes from one entity to another completely, all taxes begin to accrue on a common basis.
No preferential tax system as an heir to the new owner of the property will not apply.
How are debts inherited in 2019?
All consumer loans, car loans, mortgages, tax debts and housing and communal services pass along with the property to the heirs.
In this case, there are several features of such debt inheritance, in particular:
- If a life insurance contract was entered into by the testator at the conclusion of the loan agreement, the obligation to pay the debt should be paid by the insurance, not the heir. Therefore, in this case, you should contact the insurance company to determine whether the death of the testator is an insured event.
- It is better to transfer information on the death of the testator in advance to the bank, where he acts as the debtor. This will help to avoid the charging of undue fines and penalties.
- The statute of limitations for debt collection from heirs is 3 years. After its expiration, it will be impossible to collect debts without restoring the missed period on good grounds.
- The heirs are jointly and severally liable for the payment of the testator's debts in accordance with their shares in the inheritance.
Debt as a subject of inheritance is not a pleasant gift for an heir. However, according to the law, he is obliged to pay them in an amount that does not exceed the value of the property or property rights received.
The hereditary mass is a list of the property, rights and obligations of the deceased testator, which is to be distributed among the heirs in accordance with their shares.
The inclusion of a land plot or other type of property in the estate is carried out on the basis of documents confirming ownership.
The heirs have the full right to appeal in court against certain decisions on the inclusion of property in the inheritance or its exclusion from this mass.
How to find out about the inheritance
In the event of the death of a relative or close person, it is necessary to make inquiries from any notary regarding the existence of a testament document, for this it is necessary to submit documents about the testator and a certificate of his death. A relative may, within 6 months from the moment of death, enter into an inheritance, if at the same time a will is not found, then it is necessary to carry out the procedure of inheritance of property by law.
First of all, the spouse, children, and parents can enter into the inheritance right of property of a deceased citizen. At the same time, relatives of the first stage of inheritance distribution distribute the property in equal shares among themselves, and participants in the next stage of inheritance cannot claim the right to inherit.
If there is a testamentary document, then citizens who are inscribed in the text of the document in the clause on obligatory heirs enter primarily into the inheritance.
To make sure that a will exists, efforts must be made to find it. This document is created in duplicate, with one being at the notary who certified the document, the other in the hands of the testator.
The will can be found at the place of the testator’s permanent residence, however, if there are heirs by law who are interested in carrying out the inheritance procedure under the legal inheritance scenario, they can intentionally hide the document or destroy it.
If there is a suspicion that the document of the will is hidden or destroyed, then the heirs of the first stage can file a petition to the notary public about the search for the will. Within two weeks, the notary public addressed by the heirs reports the address of the notary public where the given citizen made testaments if the search result is positive.
For fidelity, in order to expedite the process of searching for a will, you can visit lawyers located at the place of the last registration of the testator or at the place of his actual residence, so it can turn out to speed up the process of searching for a document.
The heir must have the following documents with him when he is going to contact the notary public:
- Identity document of the heir,
- The death certificate of the testator or the court decision on the basis of which the citizen is recognized as deceased,
- Birth certificate, marriage certificate, or other document that confirms the relationship of the heir to the owner of the property, which is inherited by legal successors.
Usually, cases of inheritance of property are opened and conducted by a notary, but if it was not possible to find a will document at the notary after a two-week period, it is worth contacting other officials who, by law, have the right to authenticate.
Such officials include the following:
- Head doctors of medical institutions or commercial centers,
- Heads or directors of special institutions,
- Heads of institutions of the UFSIN system,
- Captains of the sea ships
- Heads of military units.
If the last location of the testator is known, then it is necessary to apply to the management of the above institutions and find out if a testament document is available.
If the appeal at the place of residence or the place of death of the testator is not found, the request for the search of a document to various authorities and administrations does not give a result, it is necessary to draw up an application to the notary chamber at the location of the heir, to submit documents proving the identity of the heir, death testator to receive an official answer: whether or not there will be a will drawn up by the indicated deceased citizen.
If the heir sends a letter of inquiry to a notary, for example, to another city, then he must attach copies of his documents and certify them with a local notary.
It often happens that the testator thinks for a long time and informs his relatives that he made a will, but in fact there is no document, and no one executed it.
You need to know that if a will is found, the notary who opens the inheritance case after the death of the testator will check the presence of the person requesting the document in the list of heirs. If a citizen is not indicated as a mandatory heir, he will receive an official response that the will has been found, but the information is not subject to disclosure about the composition of the heirs.
If the document is not found, then the citizen will receive a written response stating that the will from such a citizen was not entered in the notary registry.
What to do if I learned about the inheritance too late
Часто бывают ситуации в юридической практике, когда наследники, которые являются дальними родственниками усопшего наследодателя, не могут знать о том, что они остались единственными очередными наследниками, так как все предыдущие линии наследников отсутствуют или остальные наследники составили письменный отказ от вступления в наследство. In this case, the term of entry into the inheritance has been missed.
In this scenario, the heir has the right to resolve the issue in two ways:
- By drawing up a statement of claim on the restoration of the period of entry into the inheritance on the basis of reasons that by way of evidence in court will be recognized as valid,
- Peacefully resolve the issue with the heirs, who already dispose of the property received in the inheritance, on the redistribution of property between all relatives, including newly emerging candidates. This option is rarely implemented, as part of the property legal heirs manage to use, use, spend or sell.
If, nevertheless, the relatives who entered the inheritance on time agree to redistribute their shares, taking into account the interests of the late successor, then it is necessary to issue written consent to the procedure for redistributing property and obtaining new certificates of ownership for each heir.
Summarizing, it is necessary to understand that it is possible to find out about the composition of heirs by will or by law only after the death of the testator, if there is information that the relative has died, it is worthwhile to request data on the availability of the will from the notary, which can contain information about the heirs.
If a citizen interested in such information is included in the heirs, he will be able to exercise his right faster, if not, then he will simply receive a written refusal to disclose information and data concerning the heirs.
If the heir later found out about his right, and the property has already been transferred to the state, after being recognized as escheat, in this case, all property will be returned to the heir in full after the restoration of the term of entry into the inheritance by court or by payment of compensation.
How to find out if there is an inheritance or testament
What can be advised in this case? First of all, of course, seek help from relatives or friends of the deceased living in the same city. If you cannot obtain the necessary information from unofficial sources, submit an official request to the notarial chamber of the region, territory, district - at the place of the last residence of the deceased.
You can send a request by mail, attaching copies of the above documents to the application. If it turns out that the deceased relative made a will, but your name is not there, do not try to find out the names of the heirs - the notary does not have the right to disclose this information.
Remember! To find out if you have the right to inherit by testament is possible only after the death of the testator. But do not delay with the deadlines - only 6 months after his death are allocated for the entry into the inheritance.
How does the heir learn about the inheritance that has opened?
Otherwise, the court may refuse to satisfy its requirements. Following the hearing, the court will make a decision. If it is in the applicant’s favor, then the heir will have to formalize the right of ownership.
Closed testament Closed testament is a type of order. The document is prepared with witnesses and sealed in an envelope.
The testator may not show the contents of the document even to a notary public. A closed will is opened after the death of the testator at the request of one of the heirs (Article 1126 of the Civil Code of the Russian Federation). During the procedure, witnesses must be present. The order is opened no later than 15 days after the opening of the inheritance case. The peculiarity of the document is that applicants for the inheritance will learn the list of heirs by will only after opening the envelope and reading out the order.
What is not part of the inheritance?
Otherwise, he will lose his advantage over other applicants or completely remain without inheritance. Is the will at the time of filing the documents determined by a notary.
It will be enough for him to check the data on his registry. A will was discovered after 6 months. If the heir has found the administrative document, which was drawn up in his name by the testator after the deadlines for entry into the inheritance, then he will need to go to court.
The method of litigation depends on the availability of other property claimants. If there are such persons, then it will be necessary to file a statement of claim.
The claim should include a request for an extension of the time period for the acceptance of property and recognition of the right of ownership of the inheritance. Defendants in the case will be heirs who have entered into inheritance rights under the law.
The applicant will need to justify the reasons for missing.
The grandchildren of the testator and their descendants inherit by right of representation.
According to the rules of Article 1143 of the Civil Code, the heirs of the second stage are the full and half brothers and sisters of the testator, his grandfather and grandmother both from the side of the father and from the side of the mother. The children of the testator’s brothers and sisters - his nephews and nieces inherit by right of representation.
Article 1144 of the Civil Code of the Russian Federation classifies full and half brothers and sisters, her testator (uncles and aunts) as heirs of the third stage.
Who are the heirs of the first, second and third stages? What are the terms and methods of accepting an inheritance? Do you have any rights to the property of the deceased if you are not indicated in the will (right to an obligatory share in the inheritance)?
Upon inheritance, the property of the deceased (inheritance, inheritance property) shall be transferred to other persons in the manner of universal succession, that is, unchanged as a whole and at the same moment, unless otherwise provided by the rules of the Civil Code.
Inheritance is regulated by the Civil Code and other laws. Inheritance is carried out by will and by law. Inheritance by law takes place when it is not changed by will, as well as in other cases established by this Code.
The composition of the inheritance includes things belonging to the testator on the day the inheritance was opened, other property, including property rights and obligations. Rights and obligations that are inextricably linked with the identity of the testator, in particular the right to alimony, the right to compensation for harm, are not part of the inheritance.
MANDATORY SHARE IN INHERITANCE is
The following shall have the right to an obligatory share in the inheritance: a) minor or disabled children of the testator (incl.
adopted) b) disabled spouse c) parents (adoptive parents) of the deceased d) dependents supported by the heir.
The mandatory share is established in the amount of not less than two-thirds of the share that would be due to each heir upon inheritance under the law (mandatory share). Who can claim? The right to an obligatory share in the inheritance are only those citizens who are indicated in Art.