One of the main active participants in inheritance legal relations is the notary. It is the notary who opens the inheritance case after the death of the testator and performs significant legal actions in order to register the property constituting the estate for the heirs.
Often, heirs are faced with a situation where a notary refuses to perform a notarial act, or performs actions that do not satisfy the interests and expectations of the heirs.
In these cases, the current legislation of the Russian Federation provides the interested person with the right to challenge (appeal) the action or inaction of a notary committed within the framework of an inheritance case, both extrajudicially and in court.
Let us consider in more detail each of the above methods of appealing against the action (inaction) of a notary.
Who can replace a notary?
There are special cases when another official can act as a notary. For example, a will can be certified by the captain of a ship, the chief physician of a medical institution, a military commander, or the head of a prison. This happens for obvious reasons of limited time and lack of opportunity to contact an authorized notary. As an appeal against the actions of a notary, you can apply to the court to protect your interests in relation to the actions of these persons.
When a notary can refuse his services:
- If the notarial act is illegal
- If the submitted documents do not meet legal requirements
- If the document must be certified by another notary
- If a notary is approached by an incapacitated person or a representative who does not have proper authority
- If the documents are submitted by a legal entity and the transaction does not comply with the company’s charter
Our advantages
As our practice shows, in a number of cases of refusal to perform notarial acts, there is ordinary reinsurance on the part of the notary. After all, if a notary is not sure about something, and such cases happen quite often, or is inexperienced, then it is much easier for him to play it safe and refuse to perform a notarial act than to take responsibility.
In such cases, proving the client’s case will not be particularly difficult for the experienced specialists who work in our office.
The experience accumulated by our specialists shows that in almost all cases it is possible to appeal against the illegal actions of a notary. If the notary is right, our specialists will dissuade you from filing a complaint with the court and will offer another solution to the problem.
The qualifications of our specialists allow us to prevail even in the most difficult cases. Therefore, by contacting us for help, you can be sure of a successful result.
And the prices for our services in relation to their quality will pleasantly surprise you, and if other questions arise, you will come to us again - we are sure of it.
The procedure for appealing the actions of a notary
As judicial practice shows, most often citizens appeal against a notary’s refusal to perform his direct duties. Sometimes the actions of a notary occur legally, but in most cases, a refusal or error can be challenged in court or by filing a corresponding complaint with the notary chamber of the subject.
If you receive a refusal from a notary, then within 10 days he must justify his refusal in a written decision indicating the reasons and procedure for appeal. If, in your opinion, the notary committed incorrect or unprofessional actions, then you can appeal them in court. But, naturally, you need to have ironclad arguments and evidence of this fact. Consultation on inheritance will help you decide where to start and in what direction to act.
There is a certain procedure for appealing the actions of a notary:
- Submit an application to the court within ten days from the date of notification of the notarial act or its refusal.
- The application to the court must contain the full name of the applicant and his place of residence, as well as the full name of the notary whose action or inaction we are appealing
- It is necessary to indicate to the court where the notary office is located, a description of the notarial act with which you do not agree, the grounds for the application and evidence
- If you appeal the notary’s actions regarding the refusal to certify documents, then these documents must be presented, which, in your opinion, should be certified.
Next, the court considers your request and either grants it or not. In accordance with this, the notary is already obliged to execute the court decision.
Other issues that our inheritance lawyer is ready to solve for you:
If, for example, you want to start the process of challenging an inheritance under a will, then it is recommended to present to the court original documents that are certified by a notary (will) or issued by him, proof of the rights of the heir, or to petition for their requisition if it is impossible to provide them.
USEFUL: watch also the video on our YouTube channel on issues of inheritance and disputes in which our inheritance lawyer participates:
When can you write an objection to a notary’s writ of execution?
There are several situations when a debtor can appeal a notarial record:
- You haven't received a notification. If you owe the bank a loan payment, then you probably receive letters and complaints in batches, mixed with SMS messages and secret calls.
Yes, and strange individuals on behalf of a bank or microfinance organization gave you the latest “Chinese” warnings in a hysterical voice.In the case of writs of execution, the bank is obliged to exercise caution. You must be notified of how the bank will deal with the debt - in writing 14 days before contacting the notary.
- Early agreements.
If you still haven’t read the loan agreement, then now is the time! Applying to a notary for a writ of execution will be legal if the contract stipulates such a possibility. - Violation of deadlines and agreements. The bank should make only undisputed demands. For example, you have a loan of 300,000 rubles, plus accrued interest accrued under the loan agreement. Also, the bank must comply with the deadlines - no more than 2 years must pass from the beginning of the delay.
- Notary error.
Sometimes notaries make mistakes, so you need to carefully check the writ of execution to see if there are any contradictions with current legislation, or if there are any suspicious signs in the received document. Is the debtor's name spelled correctly, after all!
Sometimes there are situations when a person only became aware of a notarial inscription from bailiffs.
And this is wrong: you must first receive an official warning. Why do there crashes? This happens for two reasons:
- The notary “forgot” to warn you.
- The letter did not reach the addressee.
If a registered letter is sent, it usually reaches the addressee. You can track the history of movements, so the delivery will not find the addressee only if the courier could not find you. Then the message “unsuccessful delivery attempt” appears in the tracking service.
When does this happen? This is possible if you, the defendant:
- Do not live at the address indicated as your registration when drawing up the loan agreement.
- You are not in your city due to a business trip or a long trip.
- They refused to receive the letter.
In the presented cases, the postman leaves a notice that the addressee has the right to receive the letter at a specific post office address.
By law, the notary is obliged to notify the debtor about the imposition of the writ of execution. Therefore, such notices are usually sent by registered mail.
If the notary sends a standard notice, the debtor will be able to claim that the letter was lost in the mail. Or that he didn't receive the notice. Accordingly, registered mail serves as insurance.
State fee for appealing the actions of a notary
An appeal against actions performed by a notary or a refusal by a notary to perform actions occurs in the manner of appealing against the actions of an official. The appeal procedure is established by civil procedural law, while the amount of the state duty when filing such a claim is established by tax law.
IMPORTANT : the state fee is a mandatory fee prior to filing a claim in court.
The state fee for considering a case such as appealing against the actions or inactions of a notary in court is 2,000 rubles for organizations and 300 rubles for citizens.
In case of appeal against the actions of a notary when submitting an application. Payment of the fee is made before filing a statement of claim with the court office. In the statement of claim, the plaintiff makes a note if he is exempted from paying state duty for any reason. If a fee is paid, it is advisable to indicate in the statement of claim the amount of the fee paid and the details of the document confirming payment.
USEFUL : watch a video on reducing state fees in court
How to challenge a notary’s writ of execution on a loan: writing an application
A standard statement should consist of three parts, in addition to specifying the addressee, sender, personal and registration data.
- Description. You need to describe what the problem is and why you decided to go to court.
- Motivation. References to current legislation are required. Each word should be supported by articles from laws, quotes and references to court decisions and decisions of the Armed Forces of the Russian Federation. The position must be defended competently, with an objective approach to the matter.
- Petition. It is necessary to indicate what exactly you are asking the court to do - in this case, it is the cancellation of the writ of execution for debt collection.
You will also have to attach a receipt for the state fee and list the documents that are attached to the application.
There is no template for how to write objections to the cancellation of a notary’s writ of execution, alas. But such a statement is not that difficult to write.
But you should not copy texts from any samples - each case is individual. It is better to entrust this procedure to lawyers.
It is possible to cancel a writ of execution, it is just important not to miss the deadlines
Every citizen of the Russian Federation, if desired, has the right to challenge the writ of execution if he does not agree with the bank’s requirements. Or, for example, he believes that the lender and the notary did not comply with the procedure for treatment. An appeal will avoid enforcement proceedings and penalties.
Deadline for filing a complaint against notarial actions
The deadline for filing a complaint against an action performed by a notary or a refusal to perform such an action is 10 days.
This period is not preemptive, therefore its omission cannot be considered by the court as a basis for refusing to accept the statement of claim.
The reasons for missing a deadline are considered when preparing the case for trial. The validity of the reasons for missing the deadline and the grounds for its restoration are considered. As a rule, valid reasons for citizens may include serious illness, the inability of an incapacitated person to file a complaint, and other compelling reasons. There are no valid reasons for an organization to miss the deadline for filing a complaint against the actions performed by a notary.
Legal nuances of the status of a notary and the consequences of his illegal actions
A notary is an official who must adhere to strict rules and procedures established by law. Certain notarial actions are carried out in accordance with the Methodological Recommendations approved by Order of the Ministry of Justice of the Russian Federation dated March 15, 2000 No. 15.
| This means that the official and his assistants, including junior staff of the notary office, do not have the right to act arbitrarily and demonstrate false authority in relation to applicants. |
A notary, as a specialist who verifies the legality of transactions and other legally significant actions of applicants, has access to national and regional registers. He also has the right to verify the adequacy of the person who gives consent to the transaction or performs legally important actions independently - for example, when drawing up a real estate donation agreement.
An official is present during a wide range of actions that have significant legal consequences. He can advise the parties on the preparation of a marriage contract, shares in property, and an agreement on the division of inheritance. The notary maintains a deposit, which acts as a guarantor of the party’s fulfillment of the obligation, including when it is secured by a substantial collateral. The specialist works within the notary district and can engage in public or private practice.
Is it possible to appeal the actions of a notary without going to court?
To do this, you need to contact the notary chamber. Any notary is its member. In such a chamber there is a commission that considers ethical issues and monitors the implementation of the notarial code. She will consider your complaint and, based on the results of the inspection, may bring the notary to disciplinary action.
Thus, if you, for example, want to receive a mandatory share (a law that mainly supports minor children and dependent heirs), and the notary refuses to certify documents or begin the process of registering an inheritance, then you have every right to correct the situation.
The legislative framework
First of all, let us turn to the regulations governing the activities of notaries and the procedure for appealing their actions:
- “Fundamentals of the legislation of the Russian Federation on notaries” (approved by the Supreme Court of the Russian Federation on February 11, 1993 N 4462-1, hereinafter referred to as the Fundamentals of Notaries). This is the main document regulating the legal status of notaries, their rights and obligations, functions and appeal procedure;
- “Code of Professional Ethics for Notaries in the Russian Federation” (approved by the Ministry of Justice of Russia on August 12, 2019, January 19, 2016) – contains requirements for the professional conduct of a notary;
- Civil Procedure Code of the Russian Federation - on the procedure for appealing notarial actions in court;
- Federal Law No. 59-FZ dated May 2, 2006 “On the procedure for considering appeals from citizens of the Russian Federation” - the general procedure for citizens’ appeals to government agencies;
- Order of the Prosecutor General's Office of Russia dated January 30, 2013 No. 45 “On approval and implementation of the Instructions on the procedure for considering applications and receiving citizens in the prosecutor's office of the Russian Federation” - rules for applying to the prosecutor's office of the Russian Federation.
- Regulations of regional notary chambers, which establish procedures for considering citizens' appeals.
