When such a situation arises in life, when the time has come to enter into inheritance rights, each person has the right to decide for himself whether he wants to accept the inheritance or wants to refuse it. But before you make this or that decision, you need to know a few important rules.
Firstly, such a decision must be made before the moment when it is necessary to draw up documents for the inheritance.- Secondly, you can refuse or accept an inheritance only in full, and not in parts.
- Thirdly, if a person refuses an inheritance, then he will no longer be able to change his decision.
How long does the inheritance procedure take?
Conventionally, the notarial process of registration of inheritance rights can be divided into two stages. At the first stage, the heirs need to take actions that clearly indicate that they intend to formalize their rights to the property remaining after the death of the owner.
Usually, to do this, you should contact a notary office and submit an application. The notary does not have the right to refuse to accept documents or to file an application for acceptance of an inheritance. Of course, the applicant must submit the necessary documents. As a rule, these documents are:
- about the death of the testator
- on inheritance rights (documents on kinship, will)
- about the last residence of the deceased citizen.
The first stage lasts exactly six months. They are needed so that all heirs claiming property have time to collect the necessary papers and submit an application.
The second stage is the issuance of a certificate. Until six months have passed, the notary will not issue anything. In such a situation, it is impossible to say that the notary is delaying the registration of the inheritance.
But if six months have passed, and the notary refuses to issue the final document, such actions can be considered a violation of the law on the part of the notary. But only on the condition that all the necessary documents for obtaining the certificate have previously been submitted.
Obtaining a certificate
When a higher authority issues a positive decision on the plaintiff’s request, the notary will be obliged to issue certificates and the algorithm for providing documents will start:
- Checking the documents submitted by the applicant (certificates of death, birth, registration or divorce, and so on).
- Acceptance of a written expressed desire to accept the due inheritance.
- Establishing the presence of other successors, notifying them of the start of paperwork regarding the division of the inheritance.
- Payment of the tax fee for the acquisition of legal grounds for succession by each of the heirs.
- Issuance of a certificate to each successor or one general one.
The successors can only obtain a certificate of the right to inherit the property of a deceased relative.
It is permissible to invalidate a document that has already been served. This only happens during a trial, with strong arguments:
- issuance of a document to an unworthy heir or a person indicated within the last will by the testator as having no grounds for inheritance;
- during the inheritance procedure, there was a fact of infringement of the rights of other claimants to the property of the deceased;
- the will or legal inheritance on the basis of which the paper was issued was contested through the court;
- new successors appeared who restored the terms of inheritance through the judiciary.
Each situation has its own nuances, which must be indicated within the application, on the basis of which the court is authorized to request additional documents.
What measures should the heirs take?
If there is a delay in the process of issuing a certificate of inheritance, you can complain to the local Notary Chamber. It is not difficult to write an application to this organization. You just need to state all the facts and ask the leadership of the chamber to take urgent measures against the violator of the law.
You can go another way. A written application for the issuance of a certificate must be submitted to the notary. In this case, it should be insisted that the refusal to issue a document be made in writing.
Issuing a certificate to heirs is a notarial act. Refusal to perform a notarial act may be appealed in court. But to go to court, you need a written refusal.
Bar Association "Legal Defense"
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Applying to a notary with an application to accept an inheritance never caused any particular difficulties; all disputes arising with the acceptance of an inheritance arose between the heirs and did not formally affect the activities of the notary.
As a rule, atypical situations are when a notary refused to perform a notarial act or simply ignored an application submitted to him. Their small percentage in the total mass of inheritance disputes does not at all detract from the problem that has arisen, and requires its resolution. If you want to recognize ownership of property by inheritance, you cannot do without the help of our lawyers. You can contact us by phone: (495) 790-54-47.
Acceptance of an inheritance, from the position of a notary, is one of the mandatory notarial actions. The procedure and timing for its completion are defined in sufficient detail by the current law. The basis for its commission is an application by the heir to accept the inheritance or an application for the issuance of a certificate of the right to inheritance submitted in writing to a notary at the place of opening of the inheritance within the six-month period established by law for accepting the inheritance. During the specified period, the notary who has received the application for acceptance of the inheritance must check a number of circumstances that are important for the registration of inheritance rights. When issuing a certificate of the right to inheritance by law, the notary, by requesting relevant evidence, checks the fact of death of the testator, the time and place of opening of the inheritance, the existence of relationships that are the basis for calling to inheritance by law the persons who filed the application for issuance of a certificate of the right to inheritance, composition and location of the inherited property, presence of a will. The notary also determines the circle of persons entitled to an obligatory share in the inheritance. A certificate of the right to inheritance is issued if all the necessary documents and information are available in the inheritance file. In cases where the heirs have not previously provided the documents and information necessary to issue a certificate of inheritance, the notary explains what documents and information must be submitted to obtain the certificate.
Refusal to issue a certificate of right to inheritance, provided all formal requirements for obtaining it are met and there are no obstacles to accepting the inheritance, is not permissible. Moreover, the current legislation does not contain a list of formal reasons for refusal to perform a notarial act. However, it is worth mentioning that the notary, when performing it, in a number of cases can postpone or suspend its execution. The period of postponement cannot exceed a month from the date the notary made a decision to postpone the issuance of a certificate of inheritance. The suspension of the issuance of a certificate of the right to inheritance has a longer period - after the expiration of the circumstances that caused it (for example, the issuance of a certificate of the right to inheritance is suspended until the case is resolved by the court).
Taking into account that the issuance of a certificate of the right to inheritance must be carried out after the expiration of a six-month period for its acceptance, all other actions of the notary associated with delaying the performance of a notarial act are regarded as inaction of the notary or a tacit refusal to perform it. In this case, the interested person has the right to go to court to protect his rights and legitimate interests.
The interested person must submit an application to the district court at the location of the notary. The law allows ten days to submit such an application, calculated from the moment when the applicant became aware of the notarial act performed or the refusal to perform the notarial act. If the deadline missed by the applicant is missed for a good reason, then, if there are grounds, it can be restored. Submitting an application is subject to a state fee of 300 rubles. The application must indicate the actions that are being appealed, the notary who performed them, evidence of the incorrectness of the action or inaction. The application must be accompanied by the necessary documents indicating that the notary has performed actions, a written refusal of the notary to perform them, or his inaction.
An application for a completed notarial act or refusal to perform it is considered by the court with the participation of the applicant, as well as the notary who performed the notarial act or refused to perform it. However, their failure to appear is not an obstacle to the consideration of the application. The court decision, which satisfied the application for a completed notarial act or refusal to perform it, cancels the completed notarial act or obliges to perform such an act.
Do you need a good lawyer? Our lawyers will help you defend your interests in court. Call: (495) 790-54-47.
Petrov Mikhail Igorevich © MOCA “Legal Protection”
When are the notary's actions legal?
The notary will not formalize anything until the deadline established by law has expired. Therefore, it makes no sense to demand that he issue the main document until this period has passed.
The delay in the process of issuing a certificate may be due to the fact that the heir has not submitted all the necessary documents. If this is the case, then there is no point in complaining about the notary. The main thing you need to focus your efforts on is to obtain the necessary documents and submit them to the notary’s office.
Documents required to open an inheritance case
There are two lists of documents:
— initial documents that need to be provided to the notary to open an inheritance case (passport, documents on kinship, certificate from the last place of registration of the deceased, documents of the testator for inheritance). We point out once again that it is not always necessary to provide a complete list of documents at the first meeting with a notary.
— additional documents collected during the conduct of the inheritance case (extracts and certificates from the Unified State Register, cadastral passports, etc.).
When to go to court
If it is impossible to find documents for any reason, then the problem will have to be resolved in court. The notary will need a court decision to proceed with the registration of the inheritance.
There are several typical situations when only a court decision can help the heirs. For what reasons will a court decision be required?
Missed the deadline for accepting an inheritance
If the deadline for accepting the inheritance is missed, then the court has to restore this deadline. Naturally, this is possible if the heir has a good reason. What exactly is such a reason will be decided by the court, based on the specific circumstances of the case.
There is an opinion among citizens that a notary should be contacted after the expiration of the six-month period. This is an erroneous opinion; it is within the specified period that you need to accept the inheritance and document the acceptance. Otherwise, inheritance issues will have to be resolved in court.
The inheritance was accepted, but there is no evidence
The law also contains such a concept as actual acceptance of inheritance. This means that the heir actually began to use the property of the deceased immediately after his death, for example, he moved into the apartment and began to live in it, made repairs, and paid utility bills.
But if he was not registered in the apartment and does not provide documentary evidence of acceptance of the inheritance, then the notary will most likely send the heir to resolve inheritance issues in court. In this case, you need to ask the court to recognize the heir as having actually accepted the inheritance. There is no need to restore the time limit in court for accepting an inheritance.
The judicial option is assumed if there is no documentary evidence. If they exist, then it will be enough to present them to the notary. If you have documents, you can usually obtain a certificate from a notary.
There is no information about the relationship with the deceased
There are other situations when only the court can resolve some issues related to inheritance. For example, in court it is necessary to establish the fact of a family relationship with a deceased person if there are no documents and appeals to the competent authorities remain unsuccessful.
In such a situation, you first need to contact the registry office, and if there are no documents there, then you should refer the resolution of the problem to the court. The necessary facts can be confirmed not only by documents, but also by other evidence—witness testimony.
It is necessary to confirm the fact of relationship when there is no will. After all, if there is one, then the citizens whom the testator mentioned in his will will inherit. True, in some cases, people who are not specified in the will can also inherit when it comes to the right to an obligatory share.
Refusal to accept inheritance
Before making a decision, a person first weighs all the nuances that speak for and against accepting the inheritance. Such nuances may be personal relationships with the testator or with other heirs, or the presence of debts, which, as is known, are also inherited. The decision made by the heir is called a unilateral transaction.
In order to accept an inheritance, as well as in order to refuse it, the law provides for a certain period, and it is equal to six months.
This period begins to count from the moment of death of the person whose property is inherited, regardless of the presence of a will, or from the moment the person is declared dead by a court decision.
You can write a refusal to inherit property both before entering into inheritance and after. For this purpose, a special application is drawn up, which must be notarized. In addition, you must confirm your signature. Such a statement must indicate the details of the person refusing the inheritance and the details of the person whose property he refuses to accept. If the refusal occurs in favor of specific persons or one person, then their details are indicated. There is no need to indicate the motivation for such actions.
A correctly drawn up application for renunciation of inheritance is submitted to the responsible notary, who draws it up and registers it in a special journal. From the moment the application is registered, the refusal comes into force.
There are situations when the heir does not refuse the inheritance, but does not assume the rights of the heir. If the deadline for renunciation of inheritance is missed, the refusal is issued automatically. But there is one significant difference between a formalized and unformed refusal of inheritance. It is no longer possible to challenge a registered refusal of inheritance, but if the refusal is issued automatically, you can file an application in court and challenge your rights at any time.
No property documents
Let’s imagine a citizen started building a house. Almost completely built it, or even put it into operation, but he did not have time to register the ownership of this building - he died.
Naturally, the registration authority does not have any information about this building. The heirs of a deceased citizen will not be able to submit property documents to the notary's office. The notary's refusal to issue a certificate will be absolutely lawful.
Therefore, the lack of documents for property is another reason for litigation.
Reasons for refusal
The Civil Code does not contain specific grounds for refusal of inheritance and therefore the heir is not limited in any way in his rights. He can refuse property without motivating his decision in any way.
In practice, the most common reasons for the heir’s motives are:
- The property is of no value to the heir . For example, it is located in a separate locality and the recipient will have to incur considerable expenses for traveling to the location of the property, taking ownership and subsequent sale.
- Debts left by the testator cover the value of the property or are comparable to it. Let us remind you that not only property is transferred by inheritance, but also debts on credits, borrowings, to individuals, etc.
- The testator had an outstanding debt on utility bills .
- The heir decided to renounce the inheritance in favor of another person who, in his opinion, has more rights to the property of the deceased.
- The inheritance will remain unclaimed if accepted: for example, a weapon (for a person who will not be able to obtain permission to store it) or a technologically complex business that the heir will not be able to manage.
- Inherited property cannot be used for its intended purpose: the house is in disrepair, the car is after a serious accident, etc.
- The heir will not be able to use the property allotted to him: for example, an elderly father does not need the motor boat and snowmobile left by his son.
- Accepting an inheritance will bring significant costs to maintain its performance: if the property includes special equipment, commercial real estate, etc.
What to do after the trial?
If there is a court decision, for example, on establishing the fact of inheritance or on establishing kinship, then you need to wait until it comes into force. After this, put a stamp on the copy of the decision indicating the date and go to the notary’s office to receive a certificate.
In some cases, if the issues were resolved in court, you can receive an inheritance without going through a notary.
For example, the statement of claim, among other things, states a demand for recognition of ownership of inherited property. Immediately after the court decision comes into force, you can register ownership in the manner prescribed by law. You need to go not to a notary, but to Rosreestr and submit an application for state registration.
In what cases is inheritance refused?
Receiving property is possible by law or by will , and in both cases the inheritance can be refused. The motivation for this can be different: from a personal attitude towards the testator to reluctance to bear responsibility for his debts.
The most common reason is the lack of benefit for the assignee. Upon entering into an inheritance, he receives both the assets and liabilities of the relative. And sometimes the latter exceed the former in volume. For example, the amount of debts exceeds the value of the property. In this case, of course, it seems reasonable to refuse the inheritance, but there are pitfalls.
It happens that the heirs do not know about all the assets of a deceased relative. In practice, it happens that property is learned only some time later, after the successor has renounced his right. The main thing to remember is that refusing an inheritance is an irreversible procedure , and you need to think many times before deciding to take this step.
The second most common reason is the heir’s existing debts. If enforcement proceedings are initiated against him or bankruptcy proceedings are initiated, it is obvious that the received property will be used to pay off debts. Then it is more logical for the heir to refuse the inheritance in favor of other relatives, albeit formally.
How to properly sell a share in an apartment. What or who can interfere?
The third reason is the personal interests of the family of the deceased. For example, a man with three children died. By law, each of them has the right to a ⅓ share in the apartment, but two of them already have an apartment. Therefore, they decide to renounce the inheritance in favor of their brother/sister so that he becomes the sole owner.
Or another story: it is not profitable for the successor to acquire property, because, for example, he will lose some benefit from the state. It makes more sense for him to choose benefits rather than property.
There are other reasons too. For example, a property requires serious repairs, for which the heir does not have the money. Or the legal successor cannot afford to re-register the property. Finally, living in another city or even country.
Can refusal be beneficial?
1. There are situations when the value of the inherited property is very small and the cost of paperwork, as well as payments to the notary, is more than the property received. For example , the heirs have a certificate for shares of the Checking Investment Fund for Social Protection “Veteran” OJSC in the amount of 15,000 rubles, issued in the 90s of the last century. It seems that, taking into account indexation (as in a savings bank), there should be a lot of money. If you start an inheritance case - 500 rubles. plus make a notary request, which costs 300 rubles, the cost is 800 rubles. And the total amount from such a certificate is only 15 rubles! Real loss: for the notary - lost time, for the citizen - lost money.
2. The notary has no grounds to open an inheritance case based on the documents that you provided. Then it turned out that the testator had more debts than property. Then the current situation is completely useful!
But if the notary refused unlawfully, then the help of a lawyer is needed. The practice of our lawyers is quite extensive. Perhaps, after negotiations between the lawyer and the notary, the conflict will be resolved. And in some cases, you will have to go to court for your legal protection.
You must act quickly so as not to miss the deadline for entering into an inheritance if you have such a restriction.
Contact us for help!
