Application to declare a citizen dead. Sample. Comments

Conditions for declaring a citizen dead. Day of death

A citizen may be declared dead by a court if at his place of residence there is no information about his whereabouts for five years, and if he went missing under circumstances that threatened death or giving reason to assume his death from a certain accident - within six months .

The day of death of a citizen declared dead is the day the court decision to declare him dead comes into force.

If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death.

Proper plaintiff

Only an interested person can go to court.
The plaintiff must indicate the reasons for going to court in the statement of claim. The proper plaintiff is:

Heir by will or by law - to open the inheritance remaining after the disappearance of the missing testator.
Guardians, trustees, adoptive parents of a child of a disappeared parent - for the adoption of a child. You can register for adoption in a situation where the parents are deceased, unknown, or deprived of parental rights for more than 6 months. Therefore, a guardian will not be able to adopt a ward whose parent is missing without a death certificate.
Guardians, trustees, foster parents, guardianship department, parents, spouse - to assign a pension for the loss of a breadwinner. Disabled dependents of the deceased have the right to a pension. This could be children, parents or spouse.
The owner of the property where the missing person is registered - to remove him from the registration register. Deregistration can only be done with the consent of the person registered or through the court. If there is a death certificate, the migration service deregisters the person without additional documents.
Spouse - to end the marriage. If there is a death certificate for the missing husband, the wife is considered a widow. This means she can remarry without filing a divorce.

Statement of claim for recognition of property rights by inheritance

How to refuse an inheritance after 6 months? Step by step order

What circumstances does the court determine? Burden of proof

In the case of declaring a citizen dead, it is necessary to establish the following legally significant circumstances:

last place of residence of the citizen;
absence at the citizen’s place of residence of information about his place of stay for five years;
the presence of a legal interest of the person submitting an application to declare a citizen dead, and the existence of material and legal relations between the applicant and the citizen in respect of whom the question of declaring him dead is raised;
taking measures by the applicant to search for the person;
impossibility of establishing the location of this person;
the existence of circumstances giving reason to believe that the person may be intentionally hiding: he is wanted, does not want to pay alimony or comply with other decisions of the court, other authorities, etc.;
no dispute about law.

In accordance with Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections.

Consequently, the burden of proving the existence of the circumstances specified in Article 45 of the Civil Code of the Russian Federation is placed on the person who filed the request to declare the citizen dead.

Step-by-step procedure in court

It is not difficult to recognize a missing person as dead through court.
It is necessary to prepare evidence of his absence from his place of residence and invite witnesses. The trial process takes from 2 to 3 months. Procedure:

Preparation of evidence.
Filing a claim.
Submitting documents to the court.
Attending a court hearing.
Obtaining a court decision.
Contact the registry office.

An application to declare a citizen dead must be submitted to the district or city court at the place of his last registration or at the place of residence of the interested person.

In accordance with Art. 262 of the Code of Civil Procedure of the Russian Federation, cases of declaring a citizen dead in court are considered in accordance with the procedure of special legal proceedings. Therefore, there is no need to include a defendant in the claim.

List of documents

Before going to court, you must prepare the following documents:

plaintiff's civil passport;
a document confirming the relationship with the missing person (birth certificate, marriage certificate);
an extract from the house register;
certificate from the place of work;
documents from the Ministry of Internal Affairs on the search for a citizen;
receipt of payment of state duty (300 rubles).

The following must be invited as witnesses:

friends, relatives, acquaintances;
colleagues;
district police officer

In order to go to court earlier than after 5 years, it is necessary to prepare evidence that the citizen disappeared during hostilities or in a situation that threatened his life.

Example. Milana went to work in the morning. At 10 o'clock that day, the building where her office was located collapsed due to a gas pipeline accident. The woman's body was not found. But footage from a video camera located across the street shows that she entered the building that day. There was no information about her for 6 months. Relatives went to court and declared her dead.

In this situation, the following was added to the evidence:

a certificate from the Pension Fund confirming Milana’s employment in an organization located in this building;
video footage of her entering the building;
testimony of witnesses who explained that the woman no longer came home and did not contact her relatives.

Since the collapse of a building can be regarded as a situation that threatened life and health, you can go to court to be declared dead after 6 months.

One of the key pieces of evidence is data from the Ministry of Internal Affairs that the missing citizen was put on the wanted list, but the search efforts did not produce results. You can also attach to the claim documents about the refusal to initiate a criminal case regarding the disappearance of a person.

Sample claim for declaring a citizen dead

The claim must contain the following information:

name of the court;
plaintiff's details;
document's name;
information about the disappearance of the missing person;
search data;
information about the reasons for going to court;
reference to the law;
claim;
petition to call witnesses;
list of documents;
date and signature.

Sample claim

Judgment

To make a decision, the court examines the evidence presented, hears testimony from witnesses and makes requests to the competent authorities:

to Rosreestr - about the presence of real estate in the property of the missing citizen and transactions with it during the period when he was considered missing;
in the Ministry of Internal Affairs - about the existence of a search case;
to medical organizations (polyclinic at the place of residence, drug treatment and psychiatric dispensary) - about whether the missing citizen sought medical help during the specified period, or whether he is undergoing inpatient treatment;
in the registry office - whether an act record of the death of the missing person, registration of marriage or birth of a child was made during the specified period;
in the Pension Fund of the Russian Federation - whether the missing person made insurance contributions to the Pension Fund of the Russian Federation during the specified period, and whether he is a recipient of pensions or benefits;
in the Federal Migration Service - where the missing citizen is registered;
to the local administration - is there information about the actual place of residence of the missing person.

Based on the information received, the court satisfies the plaintiff’s demands or refuses to satisfy them. A negative court decision can be appealed within 30 days from the date of issuance.

If there are no objections, the decision will take effect after 30 days.

Obtaining a death certificate

After the court decision enters into legal force, the plaintiff must register the fact of death in the registry office and obtain a death certificate. The state fee for issuing a certificate is not paid.

Consequences of declaring a person dead

The date of death of a citizen is considered to be the date the court decision enters into legal force. But in a situation where a person disappeared under circumstances that threatened his life, the court may set the date of death as the day of disappearance.

From this moment on, consequences similar to those of biological death occur:

The inheritance opens.
A trustee is appointed for the property (if necessary).
The child is placed under guardianship or in a foster family (if the other parent is absent).
A survivor's pension is assigned (at the request of the dependent or his legal representative).
The marriage union is considered terminated.
The citizen is deregistered (at the request of the heirs or the owner of the apartment).

Required documents

Documentation will be required to be attached to the claim, which will confirm that the applicant is related to the disappeared person.

Submission required:

identification document of the applicant;
marriage/birth certificates;
certificates from the place of employment;
extracts from place of residence;
evidence confirming life-threatening circumstances;
documentation on the implementation of search activities;
evidence of the end of hostilities;
receipts for payment of state fees;
requests to call witnesses;
other evidence.

Remember! When filing a claim, it is necessary to prepare an appropriate evidence base confirming the stated facts, namely:

documentation from law enforcement agencies confirming the search for the missing citizen;
official statements made by the Minister of Defense, the President of the country about the end of hostilities;
data from the Hydrometeorological Center confirming a specific natural disaster.

Consideration of the application on its merits

When a judge accepts an application to declare a person dead, careful preparation is carried out: based on the purposes of filing the application, citizens interested in the outcome of the case are identified, witnesses who may know where the missing person is, requests are sent to law enforcement agencies at the place of residence and employment in a military unit.

The court also sets the date when information about the disappeared person was last received. If it is determined that the required deadlines (5 years, 2 years and 6 months, respectively) have not passed, the application is returned to the citizen.

In situations where there is a likelihood that the property of a missing citizen may be stolen or damaged, at the initiative of the court, a trustee may be appointed by the guardianship and trusteeship authorities.

In cases of this kind, it is mandatory to involve a prosecutor.

Lawyer's answers to frequently asked questions

I want to recognize my mother as dead. But the Ministry of Internal Affairs closed the investigation. To go to court, does it need to be open?

No. The main thing is that a search case is opened from the very beginning.

The father was declared missing in 1997. My grandfather died a month ago. To receive his inheritance, you need to recognize your father as dead. Is it possible to do this so many years later?

The law establishes the minimum period required to declare a citizen dead. It is 5 years. The maximum period has not been established. Therefore, you can go to court.

Who should be indicated as an interested party in a claim to declare a citizen dead?

The Civil Code defines a person interested in recognizing a citizen as dead as a plaintiff. That is, there is no need to indicate additional interested parties.

In 2000, my ex-husband and I filed for divorce. If a common son. He went missing in 2003 and has not been found to this day. There are documents from the Ministry of Internal Affairs, there was a search case. I filed a claim, but the court rejected it because I am not an interested party. What should I do to ensure that my child receives an inheritance?

File a claim on behalf of your minor son. If the son has reached 18 years of age, he must go to court on his own.

Mother left home in 2009. A search case was opened. The initiation of a criminal case was refused (no one threatened, there were no debts). Where should I go to declare her dead?

A citizen can only be declared dead through a court. Submit an application to the district court at the place of last registration of the mother.

Declaration of death: legal consequences

The date of the announcement of the court decision, according to which the person is declared dead, is considered the date of the actual death of the disappeared person.

A judicial act gives the interested person the right to:

making an appropriate entry in the civil register;
obtaining a death certificate;
opening of inheritance, recognition as a widower;
registration of a pension or benefit in connection with the loss of a breadwinner;
acceptance of an inheritance or refusal of it to terminate the debt obligations of the disappeared person, etc.

In case of return of a citizen

Citizens who were declared dead may well return. In these cases, there is a possibility of criminal proceedings being initiated against the applicant or key witnesses for reporting false information.

This is a rather serious warning for citizens who do not realize the seriousness of the issue associated with determining the legal status of a citizen.

If the “deceased” returns, the judicial act will be canceled and the death certificate annulled, in addition, the citizen’s civil rights will be fully restored, including the return of property, family status, restoration of debt obligations, etc.

If a citizen's property has been alienated, it is not returned, but the seller is obliged to pay him the value of such property.

Please note! If it is established that when declaring a person dead, false information was provided for selfish reasons, the citizens who provided such information will face criminal liability.

Who is eligible to apply

Note! The following persons have the right to initiate consideration of a case on declaring a citizen dead:

heirs by law, if it is their turn to accept the inheritance;
successors or legatees in accordance with the will (if they are aware of the contents of the document);
close relatives;
spouses, including former spouses, if upon the dissolution of the marriage with the missing person their joint property was not divided;
parents/guardians/trustees of minor concerned citizens;
guardians or trustees of incapacitated or partially capable interested citizens.

Why should a person be recognized as dead?

If a citizen is declared dead, the consequences will be the same as in the case of his real death.

After a judicial act has acquired legal force, the following consequences occur:

The inheritance opens. Most often, it is necessary to establish a fact of legal significance in order to ensure the opening of an inheritance. When a citizen goes missing, his property remains. The heirs do not have the right to dispose of it before taking ownership of the property. The order involves registration in the home, signing agreements with utility services, paying off loan debts, and taking actions to alienate property. In addition, if a citizen’s property is not accepted within the established time frame, it is recognized as escheated and becomes state property. For this reason, if the heirs do not take the necessary actions in a timely manner, they may lose their rights to the property of a close relative;
A pension is assigned in connection with the loss of a breadwinner. The second reason is the provision of a state pension. Minors and disabled persons who were dependent on the deceased have the right to receive such a pension;
Minor children of a citizen are put up for adoption. Registration of guardianship over minor children or transfer of them under supervision to institutions for orphans is allowed if their parents are wanted within 6 months. Children are recognized as being left without parental care. But in order for children to be subsequently adopted, it is necessary to obtain the consent of the parents or information about their death;
The deceased is removed from the registration register. It may also be necessary to remove a citizen from registration. These actions are required in order to sell housing or subsequently privatize real estate;
The marriage relationship ends. Also one of the reasons is the need to register a new marriage. When the previous marriage relationship is not completed, it is impossible to register a new marriage.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Life situations

Sometimes when a citizen is declared dead, more complex situations arise. Let's take a closer look.

What to do if the person returns?

In practice, such situations are not uncommon. Relatives stop maintaining contact, and in order to resolve property surveys, a loved one is declared dead. As a rule, he learns about this when applying to the Pension Fund to apply for a pension.

If a citizen returns to his place of residence and finds out that he has been declared dead in court, then he must:

Go to court to cancel the court decision.
Contact the registry office to cancel the record of his death.
Reclaim your property from the citizens who received it.
Cancel trust management (optional).

In accordance with Art. 302 of the Civil Code of the Russian Federation, it will not be possible to reclaim property if it is cash. Additional complications arise with regard to housing. If the new owner received ownership of the apartment more than 3 years ago, then the returning citizen cannot reclaim it.

How to cancel a decision to recognize a citizen as dead?

A court decision can only be overturned through a judicial procedure. To return property, the returning citizen must initiate legal proceedings.

The proper plaintiff in the process can only be the missing person himself, the prosecutor's office or the guardianship authority.

The citizen must attach the following information to the application:

a copy of the work book (if officially employed);
birth certificate of the child (if the child was born and registered during the disputed period);
extracts from authorized bodies on registration, transactions completed during the disputed period.

As a result, the court overturns the court's decision to declare him dead.

How to appoint a trustee for the property of a person declared deceased?

Since when a court decision enters into legal force, a citizen’s inheritance opens, the notary can appoint a trustee.

To do this, the heirs or the executor of the will must declare the need to ensure safety. The trustee may be an heir, an executor of the will, or another individual or legal entity.

Trust management is necessary if the property includes:

stock;
securities;
company;
share in LLC;
real estate objects.

A trust management agreement is concluded with a notary. 6 months after the court decision enters into legal force, the contract passes to the heirs of the deceased.

The trustee receives compensation from the estate for the performance of duties. The function of the administrator is to preserve and increase the property of the deceased. Every 6 months the manager must provide a report on the results of activities.

Grounds for filing an application for recognition as incompetent

Upon receipt of this status, a person is deprived of the opportunity to dispose of his property, however, this does not deprive him of the legal right to own his property. To determine the complete or partial incapacity of a citizen, the following grounds are required:

Weakening of legal capacity when a person reaches a certain age (very old age).
Serious mental illness that does not provide an adequate response to the situation (this diagnosis must be confirmed by a medical examination).
Partial loss of legal capacity, when it occurs, a person is able to understand his activities, but is not able to control it. At the court hearing, a strong-willed approach is emphasized.

Any of the listed circumstances may become the basis for declaring a citizen incompetent status during judicial consideration of the application. In this case, the applicant is required to present medical and legal materials confirming the need for designation of incapacity.

Arbitrage practice

As practice shows, courts satisfy claims to declare a citizen dead if he was previously put on the wanted list or was declared missing.

Example. Irina went to court to declare her brother dead. In the spring of 2002, the man left to work. Over the course of 6 months, he sent 2 letters to his mother. There was no more information about him. Irina needs recognition as deceased to formalize her mother’s inheritance, since she and her brother are first-degree heirs. A search case was opened, but the search yielded no results. The authorized bodies do not have information about the man. The court satisfied the sister’s demands (Decision of the Yashaltinsky District Court of the Republic of Kalmykia dated February 26, 2021 in case No. 2-45/2019).

If the Ministry of Internal Affairs provides information that a search case has not been opened, then the court is guaranteed to refuse the plaintiff.

Example. Valentina went to court to declare her son dead. She explained that she needed this for her own peace of mind. There has been no information about my son for 10 years. His location is unknown and he has not been in contact. All authorized bodies confirmed the information that the man did not undergo treatment, did not buy real estate, or was officially employed during the specified period. But the court refused to satisfy the demands, since a search case was not opened (Decision of the Oblievsky District Court of the Rostov Region dated November 17, 2021 in case No. 2-420/2016).