Joint will of spouses - the essence of the law, pros and cons

Why was an inheritance agreement invented and how does it differ from a will?

It is no secret that after the opening of an inheritance, conflicts often occur in families. For example, the owner bequeathed an apartment to one son, and a car to another. At the same time, he also wanted his son to live in the apartment with his mother, and at the first request, the car would be given free of charge for transportation to his beloved nephew and his family, i.e. everything remained “as usual.”

The heirs may not have known about such conditions, or they knew, but did not want to fulfill them, since the requests were not recorded and this cannot be done in wills. In order for the will of the testator to be carried out, inheritance agreements were created.

An important difference between an inheritance agreement and a will is that the latter is a unilateral act. Unlike a will, an inheritance agreement is concluded by the testator and the heir. This allows the rights and obligations of the parties to be agreed upon in advance.

The procedure for drawing up a declaration of will

To make a posthumous disposition, spouses need to contact any notary in the country. You need to have a minimum package of documents and money to pay state fees and notary services.

The declaration of will is usually drawn up on the day of contacting the notary. The testator is given the original document.

The second copy remains in the notary archive. If necessary, the testator, successor or executor of the will will be able to obtain a duplicate of the document.

The procedure for registering a joint expression of will:

1. The spouses turn to the notary and voice their will.
2. The notary prepares the draft and gives it to the testators for review. Each spouse must familiarize themselves with the document.
3. If the order was originally drawn up by one of the parties, then the notary must verify. That the other party has familiarized itself with the contents of the document.
4. Each spouse personally signs the document. One copy remains with the notary. Spouses receive one common copy.

Important! A prerequisite is video recording of the process of registering a joint order in the notary’s office. The exception is when one of the parties objects to the shooting.

The spouses decide jointly whether or not to pass on the will to the heir. However, it is better to inform the applicant about its availability. Otherwise, there is a threat of non-acceptance of the inheritance.

Who can be the heir under the contract?

Any person who may be called upon to inherit may be designated as an heir under the contract. The list of persons is specified in Article 1116 of the Civil Code.

Citizens who are alive at the time of opening of the inheritance, as well as those conceived during the life of the testator and born alive after the opening of the inheritance, as well as legal entities, the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign states and international organizations can be called upon to inherit.

Those. under such an agreement, the inheritance under a condition can be transferred not only to citizens, but also to legal entities. For example, bequeath a collection of samovars to a museum, but only on the condition that they will be exhibited and not gather dust in storage rooms.

Main

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What should you pay attention to when drawing up an inheritance agreement?

1) If a will can be drawn up in the last minutes of life and certified by the signature of the head physician of the hospital, this is not possible with an inheritance agreement. It must be certified by a notary, otherwise it will not be valid. Moreover, when certifying an inheritance agreement, a notary is obliged to video record the procedure for concluding an inheritance agreement, unless the parties to the inheritance agreement object to this.

2) An inheritance agreement, unlike a will, cannot be closed: both the testator and the heir must know about the contents of the document.

3) The agreement is signed in person: representatives by proxy are not allowed.

4) There may be several heirs: the agreement may not be bilateral, but multilateral. That is, one document will indicate several heirs and the distribution of rights and responsibilities between them.

How to apply. Procedure

A will expressing the will of both testators, like an ordinary will, is drawn up by a notary in the presence of the husband and wife.
To complete it, you must follow a certain procedure:

1. Determine the list of property, the list of receivers and the shares due to them.
2. Prepare the necessary documents.
3. Compose the text of the document yourself or with the help of a notary.
4. Sign and certify the document.

Attention! A married couple can cancel a will at any time, change its contents, or decide to draw up personal orders.

Where can I get a sample?

The form of this type of order is not established by law, therefore it is written in a free style, but with the obligatory inclusion of the following points:

• Title of the document;
• the basis for writing a joint order;
• personal information about testators;
• information about heirs, their personal data;
• a list of property to be inherited (the joint and individual property of the spouses is indicated in separate lists);
• conditions and procedure for inheritance and distribution of shares;
• date and place of drawing up the document.

Also in the text it is necessary to indicate information that the notary familiarized the spouses with the norms of the Civil Code of the Russian Federation.

The order is drawn up in triplicate. Two copies are handed over to the testators and one copy remains in the custody of the notary.

Download a sample joint will of spouses

What documents are needed?

To formalize the declaration of will, you should prepare the necessary documents:

• passports of testators;
• marriage certificate;
• documents of title for property included in the inheritance mass.

Lists of personal and joint property are determined based on the dates of their acquisition.

The cost of a joint will of spouses in Russia

To certify a will, testators must pay a state fee of 100 rubles.

If the spouses resort to the services of a notary to draw up the text of the order, then the costs include payment for his services.

Their cost depends on the specific region and the complexity of the document being drawn up. On average, the price can vary from 2500 to 4000 rubles.

Obligations of the heir under the contract

The testator and heirs agree in advance what property will go to whom and what conditions must be met for this. The agreement can distribute not only assets (real estate, money and shares in a business), but also liabilities (for example, the heir’s obligation to repay the loan).

Responsibilities can be of two types:

Property responsibilities.

For example, a daughter will receive an apartment on the condition that she will support her father until his death.

Non-property responsibilities.

For example, a father's house will pass to his son only if he takes care of his parent's pets.

Note! An inheritance agreement may establish obligations that the heir must fulfill from the moment of its conclusion. For example, it may contain the obligation of the heir to transfer 10 thousand per month to the testator, and after the death of the testator he receives his apartment.

Will such a will apply in the event of a divorce?

No.
The joint will of the spouses loses its force in cases of termination of the marriage or recognition of the marriage as invalid both before and after the death of one of the spouses. Also, each spouse can change their decision at any time and withdraw from the will. In addition, for greater legal reliability, the joint will of the spouses is subject to notarization. In order to prevent abuse, mandatory video recording of the notarization of a joint will has also been introduced, if both spouses do not object.

What happens in the event of death?

If the testator dies, all rights and obligations assigned to him under the contract pass to the heir.

In the event of the death of an heir, things are more complicated. Only the surviving person can demand fulfillment of the terms of the contract providing for what will happen in the event of the death of the testator.

Think ahead! We recommend including in the inheritance agreement a condition that in the event of the death of the heir, his own heirs will have some rights - at least to a return of the money spent.

What is a joint will of spouses?

Previously, legislation provided for the possibility of receiving an inheritance under a will, personally drawn up by one citizen, or, in his absence, in order of priority, depending on the degree of relationship to the deceased.
The opportunity to write an order jointly by both spouses appeared relatively recently - from June 1, 2021. The procedure and conditions for making such an expression of will are regulated by Art. 1118 of the Civil Code of the Russian Federation. A prerequisite for drawing up a document is that the marriage relationship must be formalized. Otherwise, it will not be possible to express a joint will on the disposal of one’s property in the event of death.

The peculiarities of this method of expression of will are that the spouses can mutually determine the following:

• distribute your joint property among the heirs, as well as the personal property of each, determining specific shares in the property;
• determine further actions in relation to property in the event of the death of a husband or wife, or the simultaneous death of both;
• decide what property will be included in the inheritance of each of them;
• deprive one or more successors of the right to inheritance without explaining the reasons for such a decision;
• reflect testamentary dispositions in the document.

Drawing up a joint order allows you to simplify the procedure for accepting an inheritance and dividing it, especially in cases where spouses have children from previous marriages.

Reference! The general rules regarding the obligatory share in the inheritance or about unworthy heirs apply in the same way as when drawing up a personal will.

Is it possible to conclude several inheritance agreements?

Yes! The law provides for this possibility. Several agreements can be executed with different heirs and in relation to one piece of real estate.

Consequences of concluding several inheritance agreements:

1. If an agreement is concluded with different heirs regarding different objects, then each of them has legal force;
2. If one property of the testator has become the subject of several inheritance agreements concluded with different persons, then if they accept the inheritance, the agreement that was concluded earlier shall be applied.

What to do if a person wants to bequeath his business?

In addition to the possibility of concluding an inheritance agreement, since the fall of last year, Russian legislation has made it possible to create an inheritance fund.
Such a fund is created for the purpose of managing business, property, and assets that remain after the death of the testator. With the help of an inheritance fund, a citizen can provide financial support to certain individuals after his death (for example, family members, other citizens, organizations). In addition, with the help of this instrument the will of the deceased to carry out charity can be realized.

Content

There is no special form for a spousal directive. However, the general information must be consistent with the ordinary expression of will.

General document details:

1. Name.
2. City, date of will.
3. Information about the testators/legal successor (full name, date of birth, registration address, passport details).
4. List of alienated property.
5. The last will of the testator.
6. Link to familiarize yourself with the requirements of Art. 1149 of the Civil Code of the Russian Federation.
7. Footnote for payment of state duty.
8. Registration number of the form.
9. Notarial inscription.
10. Number of copies of the document.
11. Signatures of the spouses and the notary.

Is it possible to challenge?

A joint will can be challenged in court if there are compelling reasons. This right is possessed by any of the spouses during their lifetime, the spouse after the death of the second testator, as well as heirs whose rights are illegally infringed. The court accepts for consideration claims for contestable and void documents drawn up in violation of the Law (Articles 166-168, paragraph 2 of Article 1131 of the Civil Code of the Russian Federation). Mandatory heirs have special rights.

How to correctly draw up a will so that it is not contested is discussed in a separate article.

Price

According to clause 13 of part 1 of Article 333.24 of the Tax Code of the Russian Federation, for certification of a will by a notary, a state duty in the amount of 100 rubles is subject to payment.

The Federal Chamber of Notaries annually sets maximum tariffs for the provision of legal and technical services, including certification of a joint will. For 2021, by decision of the FNP Board dated October 28, 2019 (Minutes No. 12/19), new tariffs were approved; registration of a joint will by spouses with a notary will cost from 2,800 to 9,600 rubles. depending on the region.