Article 1124 of the Civil Code of the Russian Federation. General rules regarding the form and procedure for making a will (current version)

Features of drawing up a will

In accordance with the rules enshrined in Art. 1118 of the Civil Code of the Russian Federation, a citizen must make a will independently. It is not permitted for the testator's representative to perform the relevant actions. This limitation also applies to inheritance agreements.

At the time of making a will, the testator must have full legal capacity. This means meeting the following criteria:

• reaching the age of majority (with the exception of situations where a minor is married or works under an employment contract; in such cases, a citizen can be recognized as fully capable if he has reached the age of 16);
• absence of mental illnesses that affect the ability to adequately assess the situation or control one’s actions;
• absence of pathological addictions that have a negative impact on a person’s consciousness and behavior (alcoholism, drug addiction, substance abuse, drug addiction, etc.).

It should be emphasized that even if the testator is mentally ill or has a pronounced dependence on any substances, a medical certificate alone is not enough to declare him completely or partially incompetent. His legal capacity can only be limited by a court decision.

A will does not have to express the will of only one citizen. It is allowed for its compilers to be persons in a marital union. In the latter case, we are talking about a joint will of the spouses. Its effect may be terminated in the event of a divorce or recognition of the marriage as invalid. If a joint will of the spouses is prepared, it can bequeath both their common property and property that belongs to them separately.

A will is inherently a one-sided transaction. Its completion entails the emergence of certain rights and obligations only after the death of the testator. An exception is a will executed in the form of an inheritance agreement. Under such an agreement, the fulfillment of the obligations provided for by it can be assigned to the heirs during the lifetime of the testator.

According to Part 2 of Art. 1119 of the Civil Code of the Russian Federation, the testator is not obliged to provide heirs or other persons with information about the contents of the will. He also must not notify anyone if a decision is made to change the will or cancel it.

The testator is vested with powers allowing him to:

• bequeath the property in his ownership to any persons and determine the shares of each of them (this provision also applies to property that is planned to be acquired in the future);
• include in the text of the will a clause on the creation of an inheritance fund for the purpose of managing the testator’s property;
• determine who will be the executor of the will, and also indicate the scope of his powers;
• add to the text of the will orders according to which the heirs are assigned any property responsibilities.

If the will involves the formation of an inheritance fund, then on the basis of Part 4 of Art. 50.1, part 4 art. 123.20-1 and part 5 of Art. 1124 of the Civil Code of the Russian Federation should include:

• decision to establish an inheritance fund;
• charter of the inheritance fund;
• conditions relating to the management of this fund.

What is better, a gift deed or a will?

Main conclusions

• The form and procedure for making a will are described in articles numbered 1124 – 1125 of the Russian Civil Code;
• The document must be drawn up in writing (no matter what method), and then certified by a notary;
• At the time of execution of the will, the presence of witnesses is allowed (sometimes this is mandatory), who must satisfy a number of requirements;
• Also, at the time of making the will, it is possible that executors and/or translators will be present.

List of documents for preparing a will

Before you begin drawing up a will, you need to prepare certain papers. They will be needed both in the process of writing it and to certify the transaction by a notary.

Here is a list of necessary documents for drawing up a will:

1. A document identifying the citizen who is the author of the will. This should be considered a passport of a citizen of the Russian Federation.
2. A document that serves as evidence that the property being bequeathed belongs to the testator. If the subject of the will is an apartment or other real estate, an extract from the Unified State Register will be required.
3. If the testator is over 70 years old, it is recommended to obtain a certificate from a psychiatrist stating that he can be fully responsible for his actions. This will prevent the will from being contested after his death.
4. Documents allowing the identification of heirs. For adult citizens and adolescents over 14 years of age, civil passports will be required, and for young children - birth certificates.
5. When drawing up a joint will of spouses, a marriage registration certificate will be required. The same document will also be needed in a situation in which the testator has not yet reached the age of majority, but is already officially married.
6. If the testator is a minor citizen working under an employment contract or engaged in entrepreneurial activity, it is necessary to prepare a certificate from the guardianship and trusteeship authorities or a copy of the court decision on his emancipation.

In certain situations, other documents may be required. Comprehensive information on this issue can be obtained from a notary.

Laying on

Reference! A testamentary assignment (Article 1139) is an order instructing the heirs to carry out actions of a property and non-property nature that are aimed at carrying out generally beneficial activities.

This could be caring for animals, paying scholarships to gifted students, helping low-income families, treating sick children. To execute the assignment, the testator appoints an executor. If the heirs do not fulfill their duties, they may lose the inheritance.

More information about testamentary refusal and assignment can be found here.

Video about what a testamentary refusal and a testamentary assignment are:

Form and content of the will

In accordance with Part 1 of Art. 1124 of the Civil Code of the Russian Federation, a will is drawn up in writing. In general, it requires notarization. If these rules are not followed, the document is considered invalid and cannot entail any legal consequences.

A will cannot be made using electronic devices or other technical devices. Otherwise, the norms of the Civil Code of the Russian Federation will be violated.

The law does not provide for strict requirements for drawing up a will. It can be written in free form. The main thing is that its content is clear and there are no ambiguous formulations. It should be borne in mind that when interpreting a will by a notary, the executor of the testator's will, or the court, all his words, phrases and expressions are interpreted in their literal meaning (Article 1132 of the Civil Code of the Russian Federation).

Although a will can be written on a piece of paper by hand, filling out a prepared form of this document is more convenient. You can download a suitable sample will for inheritance → here

In certain situations provided for by law, the document must be written in the hand of the testator. Such requirements apply to a closed will (Part 2 of Article 1126 of the Civil Code of the Russian Federation), as well as to a will drawn up in emergency situations (Part 1 of Article 1129 of the Civil Code of the Russian Federation). In these cases, it is recognized as valid only when 2 witnesses were present when it was written.

A well-drafted will must contain the following details:

1. The name of the document is “Will”.
2. Information about when and where the paper was written. It is recommended to indicate the date in words.
3. Information about the testator:

• FULL NAME. citizen;
• his date of birth;
• passport series and number, as well as the date and place of receipt;
• registration address.

1. Information about the heirs to whom the property should pass after the death of the testator. This data should be sufficient to identify them. In any case, you must indicate your full name. and the date of birth of each heir.
2. A list of bequeathed property that will go to each of the heirs separately. If the testator has not indicated what share of the property belonging to him will be received by the heirs separately, it is subject to distribution between them in equal proportions.
3. An indication that the content of Art. 1149 of the Civil Code of the Russian Federation, which talks about the right to an obligatory share in the inheritance, was explained by the notary who certified this paper.
4. Notification that the will was prepared in 2 copies, and one of them was deposited with a notary. Here you also need to provide information that allows you to identify this notary.
5. FULL NAME. testator and his signature. If the testator is unable to sign the will himself due to physical impairment, illness or illiteracy, he may authorize another person, called the executor, to sign the will. The executor must sign the will only in the presence of a notary (Part 3 of Article 1125 of the Civil Code of the Russian Federation). In such a situation, the document should also include information about the reasons preventing it from being signed personally by the testator, as well as information about the signatory.

You may find it useful: Samples of applications and documents for inheritance Free consultation with a lawyer for inheritance

What property can be assigned to heirs?

The testator can write off any property that belongs to him by right of ownership or right of lifelong inheritable possession. You can also bequeath property that will be acquired in the future.

List of possible inheritances:

• vehicles;
• real estate (apartment or share in it, house, land);
• securities;
• precious metals;
• bank deposits;
• copyright;
• insurance payments;
• corporate rights (share in the authorized capital of the enterprise).

Types of wills of the Civil Code of the Russian Federation

The Civil Code of the Russian Federation provides for the main types of wills:

• Notarized will (Article 1125).
• Closed will (Article 1126).
• Wills equivalent to notarized wills (Article 1127).
• Testamentary dispositions of rights to funds in banks (Article 1128).
• Will in emergency circumstances (Article 1129).

Any type of will must be drawn up in accordance with the provisions of the Civil Code of the Russian Federation in order to prevent the document from being challenged.

Notarization of a will

In accordance with Art. 57 Fundamentals of the legislation of the Russian Federation on notaries, approved. RF Armed Forces 11.02.1993 No. 4462-1, a notary certifies a will only if the following conditions are met:

• the will was drawn up by a citizen endowed with full legal capacity;
• it does not contradict the requirements of legislative acts of the Russian Federation;
• the citizen approached the notary personally, and did not send his representative to him to perform this action.

If a citizen’s health does not allow him to visit a notary’s office himself, he can invite a notary to his home or hospital.

The procedure for registering a will with a notary involves conducting a preliminary check of its legality. In a situation where the will is closed, such a check is not done. A will cannot be closed or accepted in extraordinary circumstances in the following cases:

• it is planned to create an inheritance fund;
• the spouses prepared a joint will (from Part 3 of Article 1118 of the Civil Code of the Russian Federation, it follows that both the husband and wife must be present when it is certified).

Closed will

If the testator has drawn up a closed will, it must be sealed in an envelope and handed over to a notary with 2 witnesses (Part 3 of Article 1126 of the Civil Code of the Russian Federation). They put their signatures on the envelope. In the presence of the same witnesses, the notary seals this envelope in another envelope and makes an inscription on it about the testator, the place and date of acceptance of the document, as well as about the witnesses.

Witnesses may be present in other situations. However, according to Part 2 of Art. 1124 of the Civil Code of the Russian Federation they cannot be appointed:

• notary and other persons authorized to certify a will;
• a citizen who should in the future become the owner of bequeathed property or in whose favor a testamentary refusal was made (this restriction also applies to his parents, children and spouse);
• persons not endowed with full legal capacity;
• illiterate;
• citizens who, due to their physical disabilities, cannot objectively assess what is happening;
• persons who do not know the language in which the will is written (if the will is closed, this restriction is not taken into account);
• husband or wife of the testator - in the case of a joint will of the spouses;
• persons who are parties to an inheritance agreement.

Joint will of spouses

The joint will of the spouses must be submitted to a notary in the presence of each of them. If only one spouse is the author of the will, the other spouse must read it in the presence of a notary. When certifying a joint will, the notary makes a video recording of what is happening, if the spouses do not object to this (Part 5.1 of Article 1125 of the Civil Code of the Russian Federation).

Information about the place and date of certification of the will is indicated on the document itself (Part 4 of Article 1124 of the Civil Code of the Russian Federation).

The testator will have to pay a state fee to certify the will. If you visit a notary engaged in private practice, you will be charged a notary fee for his services.

A will equivalent to a notarized will

In cases provided for by law, it is allowed to certify wills not only by notaries, but also by other persons vested with the necessary powers by the Civil Code of the Russian Federation. In particular, they can be certified by the chief physician of a hospital, the captain of a ship, the head of an expedition, the commander of a military unit, or the head of a correctional colony. However, this procedure is not applicable for certifying a will jointly prepared by spouses (Part 5 of Article 1127 of the Civil Code of the Russian Federation).

Disposal of rights to funds

A testamentary disposition concerning funds stored in a bank can be certified by a representative of this financial institution (Part 2 of Article 1128 of the Civil Code of the Russian Federation).

When drawing up a will, be sure to indicate the procedure for transferring rights to funds, the signatures of the testator and an authorized employee of the financial institution, and the date of execution.

Will in emergency circumstances

According to Art. 1124 of the Civil Code of the Russian Federation, in exceptional situations, a will can be drawn up in simple written form without certification by a notary or other authorized person. This rule is subject to application when circumstances arise that really threaten the life of the testator. But after their effect is terminated, the testator must have the will certified by a notary or other authorized official. Otherwise, it will lose legal force. Russian legislation does not allow spouses to make a joint will in emergency situations.

Types of orders

A testamentary disposition is a notarized disposition written by the owner of property, material assets, bank deposits, indicating certain conditions and persons to whom his property will be transferred.

With condition

The Civil Code allows for the execution of a testamentary disposition under certain conditions. In this case, the heirs can receive their inheritance only after the following conditions are met :

1. will receive a decent education;
2. complete the scientific work of the testator;
3. start a family;
4. reach a certain age.

Reference! The testator may demand the fulfillment of any conditions, except those that do not comply with moral standards or violate the legislation of the Russian Federation.

Video about examples of conditions that may be specified in a will:

With encumbrance

Sometimes the joy of receiving an inheritance can be spoiled by a burden - the obligation to pay the testator's debts . The heirs receive not only a car, but also an encumbrance in the form of an unpaid loan, a company with millions in debt, an apartment with a mortgage.

Inheritance of this property requires repayment of the encumbrance. Abandonment of encumbered property deprives the heirs of the right to an unencumbered inheritance.

With sub-purpose

A testamentary disposition with a sub-appointment provides for a reserve heir (or several) if the main heir indicated in the disposition has not entered into inheritance rights for various reasons:

• died before probate;
• recognized as an unworthy heir;
• refused to accept the inheritance.

Video about what a will with subassignment is:

Made in a can

A bank order is concluded by a bank client in the presence of an employee of this institution. It does not require notarization. The bank is not obliged to notify the heirs of the existence of a testamentary disposition.

Note! To receive a cash deposit, you must have documents confirming its availability or make a notarial request. The heirs do not have to close the deposit; they can transfer it to themselves and continue to use the bank’s services.

You can learn more about a will for a bank deposit from this article.

Video about the features of a will for funds stored in a bank:

Procedure for changing and canceling a will

The testator can revoke the will or change its contents whenever he wants. However, he is not obliged to indicate the reasons for such a decision (Article 1130 of the Civil Code of the Russian Federation). In order to revoke a previously made will, he can prepare a new will or issue an order to revoke the previous one.

If a new will is drawn up, it is recommended that it explicitly state that the validity of the previously prepared document is canceled. If this is not done, the old will can be canceled only in the part in which it contradicts the new one (Part 2 of Article 1130 of the Civil Code of the Russian Federation).

Cancellation of a previous will by issuing an appropriate order is provided for in Part 4 of Art. 1130 Civil Code of the Russian Federation. In this case, there is no need to draw up a new will. An order to cancel a document must be prepared in the same form as the document whose effect is being cancelled. According to paragraph 5 of the same article, a will adopted in emergency conditions cancels or changes the validity of only the same will. A new testamentary disposition in a bank can only affect the same previous disposition (clause 5 of the same norm). It will not affect other types of wills.

A new will or order to cancel the previous one must be certified by a notary. After completing the necessary checks, you will receive a copy of the certified document. For notary services, you will need to pay a state fee or pay a notary fee.

For information on the procedure for revoking a will by a testator, read the article: How to revoke a will for inheritance.

Refusal

A testamentary refusal is an order obliging the heirs to perform actions of a property nature in favor of a certain person (legatee).

A testamentary refusal may contain an indication of the transfer of property.

It may also indicate the need to transfer things for permanent use to the legatee, provide the opportunity to live in the bequeathed residential premises, and pay cash. If the legatee dies and another is not appointed in his place, the heir is exempt from fulfilling the legacy.

Lawyer's answers to frequently asked questions

In what cases can you write a will without a notary?

Executing a will without notarization is permitted in the following cases:

• Certification of wills by persons vested with the necessary powers by the Civil Code of the Russian Federation. This could be the chief physician of a medical institution, the captain of a ship, the head of an expedition, the commander of a military unit, the head of a correctional colony (Article 1127 of the Civil Code of the Russian Federation).
• Rights to funds can be bequeathed by making a testamentary disposition certified by a representative of a financial institution (Article 1128 of the Civil Code of the Russian Federation).
• A will made in emergency circumstances, in the presence of two witnesses. Within a month after the cessation of these circumstances, the will must be certified by a notary or a person vested with these powers (Article 1129 of the Civil Code of the Russian Federation).

Is it possible to write a will for a third-party child?

You can write a will for a third-party child. But the decision regarding acceptance or refusal of the inheritance is made by the guardians of the minor with the involvement of the guardianship authorities.

How can I find out if there is a will for me?

You need to contact a notary at the place of last residence of the testator. You can read more → here.

My father made his will while he was in the hospital. Is it legal?

If a will is certified by a person vested with the necessary powers, it is equivalent to notarized wills.

Drawed up a will for my daughter. I want to transfer it to my grandson. Can I change my will and do I need to state why?

In accordance with paragraph 1 of Art. 1130 of the Civil Code of the Russian Federation, you have the right to cancel or change a will without indicating the reasons for its cancellation or change.

Joint (family) filling

Russian legislation does not provide for the concept of a joint will. On the basis of the Civil Code of the Russian Federation, each spouse writes his or her will separately from each other. Joint wills are common in Western Europe; family wills are not practiced in Russia .

You can transfer your property not only by will. We suggest you find out how to do this using an inheritance agreement. You can also read how property is transferred by testamentary disposition.

The world history of writing wills goes back centuries. In Russia, this legislative norm arose much later, but every year the number of wills drawn up will melt.