Will with condition, can special conditions be specified in the will?

Last modified: January 2021

A will with a condition is a legally significant document containing the last will of the owner with the transfer of inheritance upon the occurrence of certain circumstances. These conditions may not be so beneficial for the heirs, forcing the latter to refuse to accept the inherited property. The issue of distribution of property after death worries owners who are interested in allocating property to their loved ones and relatives. Sometimes a simple distribution of the inheritance is not enough, since the testator needs to take care of the implementation of important actions or the occurrence of certain circumstances.

Is it possible to specify special conditions in a will?

Complex versions of the will of the testator are not so common. Questions about whether it is possible to make a will with a condition arise more often among citizens who are worried about the fate of loved ones who will be left without support and care after the death of the testator.

There are several options for making a conditional will, including a testamentary refusal with the fulfillment of obligations in relation to property and a testamentary assignment with the obligation to perform certain actions. If we are talking about granting the right of residence to a loved one, a refusal is drawn up, and if it is necessary to provide an heir with care for a pet, they speak of a testamentary assignment.

When thinking over the contents of the paper, the testator must understand that the conditions established for accepting the inheritance do not go beyond the legal norms. If this is contrary to the laws, the inheritance order becomes invalid.

Some citizens, wanting to protect the rights of loved ones and protecting them from disagreements, negotiate options for how property will be distributed if any event occurs. For example, the testator decides that when opening an inheritance before the child reaches the age of majority, the property will be transferred to the mother, and later it will be divided into two.

There are varieties of setting suspensive conditions. For example, to receive an inheritance, it is necessary to fulfill a certain requirement (action) on the part of the heir, which takes several years (obtaining a university diploma). During the waiting period, an executor of the will (a close relative or an independent legal agency) is appointed.

The principle of freedom

Article 1119 of the Civil Code of the Russian Federation regulates the freedom to draw up such documentation within the framework of compliance with legislative norms. This legal provision forms the basis of any will and allows the following rights to be exercised:

Freely bequeath any legally owned property and property rights to any persons, regardless of the degree of relationship.
Provide for any conditions under which inheritance will be carried out, with the exception of cases of violation of the law, restriction of the legal rights and interests of other persons.
Express free will, draw up several wills, cancel previously signed administrative documents in the event of death, include additional conditions in the document.
Divide inheritance shares between heirs in any convenient way.
Bequeath both specific property, for example an apartment at a specific address, and indicate all the property that will be owned at the time of death.
Sign a will with the condition of lifelong maintenance, testamentary disclaimer, obligation to ensure residence in the bequeathed property of a certain person, etc.

The testator guarantees the right to make changes to previously signed documents an unlimited number of times. Each new will drawn up automatically cancels the legal force of the previously signed copy. The procedure is regulated by Chapter 5 of the current Civil Code .

Possible conditions of the will

The rules defining acceptable options for accepting an inheritance are specified in Section 5 of the Civil Code of the Russian Federation. One of the most frequently mentioned conditions in a will is the lifelong residence of a relative, loved one or a complete stranger. Property can be inherited by one person or divided among several heirs. No principles have been established for determining the shares of beneficiaries.

The main limitation is the absence of contradictions to the law or infringement of the rights and freedoms of other citizens.

Article 1137 of the Civil Code of the Russian Federation establishes that the testator’s heirs may be subject to various demands, failure to fulfill which will result in loss of inheritance.

Conditions may be related to the disposal of property, or lie outside the property characteristics.

Among the possible requirements set forth by testators, the following formulations are usually used:

adulthood (receive an inheritance after reaching 18 years of age);
obtaining an education (different options for educational institutions may be described);
marriage registration (for children, young relatives);
ban on subsequent marriage (for the spouse);
issuance of a sum of money to persons mentioned by the testator;
lifelong residence of other persons when inheriting real estate;
transfer of part of the remaining assets to legatees;
execution of a specific order or service in favor of the specified beneficiary;
make payments in favor of the mentioned citizens;
grant the right to use housing to the legatee for a limited period of time or for life;
take care of the pets of the deceased, provide regular care.

The rules set by the testator are not always easy to follow, but this makes it impossible to receive an inheritance. In such situations, the heir has to challenge the person’s last will, or give up the property of the deceased. A will with a condition not to sell the apartment can worsen the heir’s position, since it makes accepting the inheritance unacceptable or unprofitable (if living in another country or remote region, it is not possible to monitor and maintain the technical condition of the inherited property).

To avoid such problems, notaries do not recommend introducing rules into the document that complicate the process of obtaining an inheritance, and abandoning dubious wording, since there is a high probability of going to court to invalidate the will of the testator.

A will providing for the lifelong residence of another person

When transferring real estate, they often take advantage of the opportunity to dispose of real estate as efficiently as possible, keeping it in the family's property and allowing other persons not participating in the division of the inheritance to use the living space.

A will with the condition of lifelong residence is consistent with the provisions of Art. 1137 Civil Code of the Russian Federation. Typically, the legatee is given 3 years to exercise his right. After moving in, the person must ensure registration at the location of the inherited apartment.

The costs associated with the maintenance and payment of housing after a person moves in are proportionally shared among all residents.

If the right of residence is granted for a limited period of time, the heir has the right to demand the vacancy of the premises upon expiration of the specified period.

Solving the problem of granting lifelong residence without the right of ownership under a will

Certain inconveniences are caused by the testator's decision to allow specific persons who are not family members to live in the apartment for life under the will.

If there is a need to accept the testator’s apartment by expressed will, and refusal of the inheritance is impossible, the problem is solved through:

provision of housing for the legatee and organization of separation;
the parties agree and formalize through a notary a refusal to use the housing regardless of the will of the deceased;
in order not to give up the entire inheritance, the heir transfers his part of the apartment for rent;
the beneficiary pays the intended tenant some monetary compensation with the registration of a notarized waiver of the area;
an apartment or household is divided with the organization of separate living through redevelopment.

In any case, if it is impossible to challenge the will of the deceased, you have to negotiate with the legatee and record the agreement through a notary.

Will with the right of lifelong residence sample

When drawing up a will, you need to take into account that the disagreeing party will probably try to challenge it, especially if it significantly worsens the life of the heir and his family. Before drafting a will, it is recommended that you consult with a lawyer to determine whether it is possible to write a will that requires a specific form.

When drawing up, adhere to the sample will with the condition, taking into account the need for the following details to be present in the document:

city, date of compilation;
name of the form;
registration of the testator;
information from the passport;
content of the expression of will;
transfer of inherited property;
list of legal successors with registration addresses;
determining the shares of each;
formulation of the conditions under which the inheritance will become the property of the heirs;
number;
information about payment of the mandatory fee.

The document is signed personally by the testator with a description of his last name and first name.

You can reduce the time for drafting by using a sample will with a condition from a notary. It is recommended that you consult with an attorney if you have any doubts about the enforceability of a claim or the risk of a post-death challenge.

After the notary checks the prepared testamentary form, a notary office stamp is placed on it. One original is given to the testator, the second remains in the office to control the execution of the last will of the deceased in the future.

: Sample will with condition (21.7 KiB, 255 hits)

Lifetime residence

One of the common privileges of a third party by testamentary refusal is living in the premises inherited. The testator must clearly specify the period of residence. But he also has the right to indicate the right to indefinite, that is, lifelong, residence of the given person in the bequeathed apartment.

In practice, the heirs are usually unhappy with this condition, since they have to share the apartment with a stranger. In this situation, you can try to challenge the will in court. However, if there is no right to doubt the legality of the testator’s will, then the court will not cancel the will.

The second option is refusal of inheritance. The law does not determine the obligation of the heir to accept the bequeathed property. It's his right.

In some cases, it is possible to reach an agreement with the legatee. He agrees to write and notarize a waiver of the right to reside in the specified premises in exchange for payment of material compensation by the heir.

What is a testamentary refusal?

One of the forms of registration of the last will in relation to property is a testamentary refusal, when the circle of legal successors specified by the testator must perform certain actions in the interests of another person or group of persons. The law does not abolish the requirement to fulfill the will of the deceased, regardless of the grounds of inheritance (by law or in accordance with a will).

A testamentary refusal is also called a “legate”, and the condition of execution may be:

allocation of property for use or ownership on behalf of the testator;
transfer for use of other things included in the inheritance mass, in addition to real estate;
execution of orders, services, work;
payment of compensation in the amount established by the testator;
vesting the heir with other obligations according to the will of the testator.

As with life occupancy, the obligation may last for a limited period of time, or it may be established indefinitely on a permanent basis.

The inheritance agreement does not cancel the right of ownership

As can be seen, the imposition of counter obligations on the heir closely brings the inheritance contract closer to annuity.

But there is one cardinal difference between them: having entered into an annuity agreement, a person immediately ceases to be the owner, and according to an inheritance agreement, property passes to the heirs only after the death of the testator.

While remaining the owner, he can dispose of the property as he pleases, even sell it or donate it. The heirs will be left with nothing, but no one can prevent him from doing this: the law prohibits putting any restrictions on this matter in the contract.

Probate costs

When drawing up a will, you will have to bear the costs of legal assistance and notary services. The latter service is mandatory, since without a notary mark, a document, even if it is drawn up in accordance with all the provisions of the law, will not be considered valid.

The amount of the notary's office fee is determined by the provisions of the Tax Code (Article 333.24) and is equal to 100 rubles.

An additional fee is paid for technical and legal services that often accompany the process of preparing a will. Prices at notary offices may vary in different regions, depending on the tariffs established in specific localities.

Instructions: how to write a document naming an heir

This condition is included in the will if the testator wishes to provide for the possibility of the sudden death of the successor. Also, sub-assignment is formalized so that the inheritance does not go to “undesirable” applicants in the event that the main applicant refuses the inheritance.

Where to go and with what papers?

The expression of will is drawn up in the notary's office at the place of residence or location of the majority of the inherited volume. There are several notaries working in large towns in the area. Services are provided to clients depending on the first letter of the surname: when the time comes to reveal the terms of the will, it will be easier for the heirs to find the place where they need to write an application for entry.

You must have with you a passport and papers confirming that the property being transferred belongs to the testator. It is advisable to provide passport details of successors in order to identify them in the future. Before registration of the document, the state fee is paid, and the receipt is given to the notary.

There is no need to certify copies of documents in advance. The procedure includes an authenticity assessment. Bring the originals, and copies will be taken at the notary's office, which is included in the cost of the service.

What should be in the content?

It is important to describe the conditions correctly. First, the estate is listed. Each object must be identified. If we are talking about an apartment, the address, number of rooms, floor, square footage, etc. are indicated. For a car - make, model, title data (year of manufacture, engine size, color, modification, body type, VIN code, etc.). The more data, the less disagreement there will be.

Use legal terms in the text. Liberties lead to discrepancies and litigation. Sometimes it happens that the will is canceled and the conditions lose all meaning. When registering an executor or obligatory tenants, provide their passport details. Notification is not required. There is also no need to describe the premises of your own decisions. Legislation takes into account only the facts.

State duty and other financial expenses

When registering, a fee is paid, which does not depend on the number of conditions provided for by the will. Checking legality is a notary’s duty for which you do not need to pay. Additional legal services are paid separately.

Persons accepting an inheritance with conditions pay more. They pay the duty, which is not always a fixed amount. When registering real estate, 0.3% is charged from close relatives and twice as much if another person is specified in the will. Heirs of the second stage are no longer considered close.

Legal and illegal conditions

There are several criteria that determine eligibility. Firstly, the conditions should not affect the rights and freedoms of citizens specified in the will. Secondly, each condition is within the framework of laws. To properly determine whether a particular requirement can be included in a will, contact a probate attorney who has experience in challenging wills.

Who controls the fulfillment of the conditions?

Since inheritance under a will with a condition does not end with the announcement of the will of the deceased, it will take time to carry out and monitor compliance with the testator’s instructions.

In order to avoid confusion and confusion when checking whether the measures taken by the legal successors comply with the last order of the testator, persons referred to as executors of the will are involved, who are capable of monitoring compliance with the points specified in the will. If the heir has not fulfilled the will of the deceased, the powers of the executor include bringing the violator to justice and forcing him to carry out the testator's instructions in court.

The executor is appointed in accordance with Art. 1134 of the Civil Code of the Russian Federation, defining the range of possible powers:

Ensures the safety of inherited property with coordination of actions through a notary office.
Receives funds for transfer between the parties to the inheritance case.
Controls the transfer of property according to the order of the testator.
Conducts affairs and interacts on behalf of the testator with government departments and the court.

The task of the executor is to ensure the fulfillment of the last will of the deceased, and in case of violations, demand compulsory execution by turning to the court for help.

What is the difference between renunciation and assignment when a will with a condition is drawn up?

According to the Civil Code, refusal is a transfer of certain rights and obligations to certain heirs. For example, the heir will be obliged to provide a third party with the opportunity to use a plot of land or an apartment.

As for the testamentary assignment, the actions must be socially useful. For example, the heir will have to support a pet. If care is not proper, then all property may be confiscated.

The refusal of an assignment differs in that the first is not of a property nature, which is always accompanied by a refusal. In addition, when assigned, it is not indicated who exactly should carry out the actions. When there are several heirs, they all must take responsibility. As for the refusal, it is carried out by a specific person.

Another point is that upon assignment, property and responsibilities are transferred by inheritance. As for refusal, there is no such transition here.

What grounds for challenge do the heirs use?

The notary, before signing the will, warns the testator about the risk of challenge if the successors do not agree with the stated conditions. If, after the death of the testator, his successors consider the terms to infringe on their rights, there is a possibility of an attempt to invalidate the contract in court.

The notary's goal, before certifying the will, is to foresee possible consequences and reduce the risk of their occurrence, however, it is impossible to fully foresee further developments in the life of the testator, which means the risk of invalidating a testamentary document with conditions remains high.

As a rule, it is possible to challenge a will, the terms of which the applicants are not satisfied with, in court if it is established that at the time of signing the testator was not aware of his actions and was not able to understand the legal consequences of the step.

A forensic psychiatric examination or identification of the fact of a long-term illness of the testator, which prevented him from realizing what was happening at the time of signing, can help with the challenge.

There are chances of challenging a will that contains illegal restrictions with the help of a competent lawyer. Factors that infringe on the rights of the heir may be the condition of registering a marriage with a specific person at the will of the testator, or a ban on the remarriage of the surviving spouse. Such measures are recognized as illegal, and it is possible to challenge the will by referring to the provisions of Art. 12 family legislation (RF IC).

Legal regulation of the issue

A will that contains clauses is unpopular, leading many heirs to believe the requirements are illegal. This leads to filing a lawsuit to declare the paper invalid.

Important! Issues of compiling, disposing and accepting values are regulated by civil law

Particular attention should be paid to Chap. 5 Civil Code of the Russian Federation

The article regulates the procedure for registration and disposal with the conditions that applicants must fulfill.

The testator has the right:

indicate any citizens as beneficiaries. The degree of relationship and its presence do not matter. In addition, a document executed by the owner of the property may distribute assets among the heirs in equal parts or according to shares, and also assume their receipt by a specific person in full;
change the text at your discretion any number of times, cancel it and create a new one. Beneficiaries are not notified;
establish conditions that must be fulfilled in order to acquire benefits.

How a lawyer can help

The process of drawing up and executing a will can cause many problems due to incorrect drafting of documents or non-compliance of the content with the law. By turning to a law firm for help, testators can correctly formulate possible factors that should be mentioned in the will, without the risk of facing a challenge after the death of the testator.

For heirs, legal support, on the contrary, will help to protest unfair, infringing decisions regarding the inheritance and the conditions for its re-registration. A detailed knowledge of the law will help to identify violations and have them declared illegal through the courts.

Will as a basis for inheritance

You can express your will during your lifetime by leaving a testamentary disposition. The validity of the legal document begins after the death of the owner of the property, at the time of opening the inheritance case at the notary. You can only determine your will personally; property can be distributed among several interested parties. In this case, legal entities or individuals, not necessarily relatives, can be chosen as heirs, Article 1119 of the Civil Code of the Russian Federation.

Inheritance by will provides for the possibility of a share division specified by the owner. It is possible to cancel the will or make adjustments any number of times; the document that is most recent is considered valid. The will is certified by a notary and has a strict form indicating a specific object or other material content of the testator’s property, Article 1124 of the Civil Code of the Russian Federation.

Since inheritance by will in the Russian Federation takes place after the death of the owner of the property, the citizen will not be able to give explanations or comment on his will. Therefore, the document must contain comprehensive information for further actions to implement its provisions. In addition to the notary, there is a limited circle of officials who have the right to certify a will.

For example, it is allowed to have your will certified during a long voyage by the captain of the ship or the senior commander of the expedition. If a Russian citizen lives abroad, then the consular department can verify his intentions. Article 1124 of the Civil Code of the Russian Federation indicates that the will of the testator is drawn up in two copies, one of which is kept by the notary until the opening of the case.

When drawing up a document, we must not forget about compulsory heirs, Article 1149 of the Civil Code of the Russian Federation. Regardless of the order of the property owner, there is a circle of claimants who receive their share of the inheritance in any case. These are minors and disabled family members of the testator, as well as disabled dependents who have been in his care for more than one year. If the dependent is not a blood relative, then he must also live with the testator for more than a year in the same territory. For related dependents, this condition is not necessary.

The legislative framework

All inheritance issues are concentrated in Section V of the Civil Code .

The author of the will can mention any persons as successors: from direct heirs to strangers and even legal organizations.
Property can be distributed in any shares, objects in kind, or bequeathed all to one person.
You can change a will: for this, a new text is drawn up, and the old one ceases to be valid.
The author is not obliged to notify either the legal successors or the persons mentioned in the text about the written will.
According to Article 1137 of the Civil Code of the Russian Federation, a will with a condition is one whose text describes the circumstances that the heir will have to fulfill. The document may contain a description of any conditions that do not contradict current legislation and common sense.