Trust management of inherited property

1. If the inheritance includes property that requires not only protection, but also management (enterprise, share in the authorized (share) capital of a corporate legal entity, share, securities, exclusive rights, etc.), a notary in accordance with Article 1026 of this Codex, as the founder of the trust management, enters into a trust management agreement for this property.

Before concluding an agreement for trust management of inherited property, an independent appraiser must evaluate the part of the property that is transferred to trust management. The costs of conducting an assessment are related to the costs of protecting and managing the inheritance (Article 1174).

2. If inheritance is carried out under a will in which an executor of the will is appointed, the executor of the will is considered a trustee of the inherited property from the moment he expresses his consent to be the executor of the will (Article 1134).

3. Trust management of inherited property is carried out in order to preserve this property and increase its value.

A beneficiary under a trust management agreement for inherited property is not appointed, except in the case where a testamentary refusal has been made, presuming its execution in favor of a certain person for the period of taking actions to protect and manage the inherited property. In this case, the legatee is appointed as the beneficiary.

The trustee of the inherited property does not have the right to fulfill the obligations of the testator at the expense of the property transferred to him for trust management before the issuance of a certificate of the right to inheritance to one of the heirs, except for cases where the trust management agreement or will provides for the obligation of the trustee to compensate at the expense of the property transferred to the trust management expenses specified in Article 1174 of this Code.

4. When taking actions to protect inherited property and manage it in cases where the testator’s will contains his instructions on issues of managing the inheritance, the trustee and executor are obliged to act in accordance with such orders of the testator, including the obligation to vote in the highest bodies of corporations such in the manner specified in the will.

5. A notary exercising the powers of the founder of trust management under a trust management agreement is obliged to monitor the performance by the trustee of his duties at least once every two months. If the trustee is found to have violated his duties, the notary has the right to unilaterally terminate the trust management agreement, demand the trustee to provide a report and appoint a new trustee.

6. A person who meets the requirements specified in Article 1015 of this Code may be appointed as a trustee under an agreement, including a presumptive heir, who may be appointed with the consent of other heirs identified at the time of the appointment of the trustee, and if there are their objections - to based on a court decision.

7. In the case of transfer of inherited property to several trustees, each of them has the powers to manage the inherited property, unless the trust management agreement or will stipulates that the trustees exercise these powers jointly. If disagreements arise between trustees regarding the exercise of their rights and obligations, the notary is obliged to terminate the agreement on trust management of inherited property concluded with such managers, require the trustees to provide reports and appoint a new trustee or new trustees.

8. An agreement on trust management of inherited property may be concluded for a period not exceeding five years. In any case, at the time of issuing a certificate of the right to inheritance to at least one of the heirs, if such a certificate indicates the property that is the subject of trust management, or if such a certificate is issued in relation to the entire property of the testator, whatever it is expressed in and wherever it is no matter what happens, the rights and obligations of the founder of the trust management are transferred to such heir (such heirs). The notary who established the trust management is exempt from performing the duties of the founder. The heir who has received a certificate of the right to inheritance has the right to terminate trust management and demand from the trustee the transfer of the property that was in trust management, the rights to which have passed to this heir, and the provision of a report on trust management.

If the heirs do not make a demand to transfer to them the property that was in trust management, the trust management agreement is considered extended for a period of five years, and trust management may be terminated on the grounds provided for in Article 1024 of this Code.

Article 1172. Measures to protect inheritance
Article 1174. Reimbursement of expenses caused by the death of the testator and expenses for the protection and management of the inheritance

When is trust management of an inheritance required?

So, when measures to ensure the safety of the testator’s property require the management of part of it, a trust management agreement is drawn up.

Property that requires permanent and (or) operational management includes shares in capital, shares, enterprises, exclusive rights, real estate, investment shares, etc. Management must be carried out in the interests of heirs and other interested parties through the use of conservation measures by an authorized person or an increase in the value of the inheritance entrusted to him. According to Art. 1026 of the Civil Code of the Russian Federation, such an agreement is concluded with the participation of a notary.

Important! Money itself cannot be transferred to trust management except in situations provided for in Article 1017, paragraph 2 of the Civil Code of the Russian Federation. If money is part of the entrusted inherited property, they, accordingly, become part of the object transferred to trust management.

Parties to the agreement on trust management of inherited property

An agreement on trust management of inherited property is concluded between the founder and a person or group of persons entrusted with management.

The notary has the right to establish trust management, and in this case it is necessary to conclude an appropriate agreement. If an executor was named in the will, he then acts as administrator. Then the execution of a trust management agreement is not required.

Although the executor of a will has the right to take measures to protect the inherited property and manage it on his own behalf, the testator can limit and specify in advance the rights and obligations of the executor by indicating specific actions and the boundaries of his powers in the will.

Important! The beneficiary cannot be a party to such an agreement. That is, heirs and other interested parties (for example, creditors) cannot be founders or managers.

Founder's powers:

monitor the work of the manager;
provide the manager with the documents necessary for his duties;
do not interfere with the work of the executor of the trust agreement;
pay him a reward;
withdraw profits received as a result of the use of inherited property.

If there is special property in the inheritance, the management of which requires special skills, knowledge and (or) permissions, the person allowed to manage it must have the appropriate licenses and experience. So, for example, a legal entity or entrepreneur who is always aware of the situation on the securities market and has the appropriate licenses is allowed to play the role of manager of an inheritance that includes securities.

When securities become the object of management, the notary is obliged to check that the candidate for the position of manager has the appropriate permits and describe in detail the external features of these securities in the concluded agreement.

Important! If the manager's responsibilities include only exercising rights in relation to securities, a license is not required.

The heir becomes a trustee if he meets the requirements specified in Art. 1015 of the Civil Code of the Russian Federation, but only with the consent of other heirs identified at that time. If agreement is not reached, the heir can become a manager only through a court decision.

The duties of a manager can be performed by several persons. Each of them will be given powers, unless the will specifies that the management of the inherited property should be carried out jointly. If there are disagreements between the managers, the notary must terminate the contract with them, demand a report on their activities, and then appoint a new manager or several.

Information. According to the provisions specified in the agreement, the management of inherited property by a trustee can be carried out both free of charge and for a fee. Payment is provided in kind or cash.

Manager's powers:

carry out effective management of the property entrusted to him;
take all possible measures to ensure the safety of the inheritance;
control the state of the inheritance;
prevent damage and reduction in the value of the property transferred to him;
receive compensation for expenses incurred as a result of performing the duties of a manager;
receive payment for the management of inherited property, if it is provided for in the contract.

According to Art. 1020 of the Civil Code of the Russian Federation, the manager is given the right to carry out any legal operations in relation to the inheritance transferred to him only in cases described in the agreement, and if these actions correspond to the interests of the heirs and other interested parties.

Important! Article 1015 of the Civil Code of the Russian Federation states that the inheritance should not be transferred to the management of state authorities or a municipality.

Who can be appointed as manager?

The situation may be simple if the testator expressed his will and indicated in the document a specific person to whom he entrusted management during his lifetime in the event of his death. The appointed citizen takes care of the property during the probate process. The trustee is appointed by a notary if the expression of will does not contain an order in this case. It is allowed to involve one’s own candidacy if one applicant for receiving property or the other heirs do not object, which is reflected in the relevant applications.

According to the Civil Code of the Russian Federation, there is only one mandatory requirement - absolute legal capacity. This is the absence of nervous and mental illnesses, temporary incapacity, and the achievement of adulthood. The appointment is not a duty and the candidate has the right to decline the offer to become a trustee and to accept trustee responsibilities. Then the executor of the will looks for another candidate for the position of administrator of the estate.

An agreement with the appointment of a trustee, a sample of which is available on the Internet, has the right to sign:

individuals;
legal entities;
individual entrepreneurs.

When it is necessary to transfer powers to manage property registered (registered) in the name of a minor or young child, in addition to parents and guardians, state guardianship authorities participate in the appointment procedure. Trust management is possible only with their official permission. This is how the government shows concern for children and their property.

It is allowed to involve several persons to manage the property of the deceased within the framework of an inheritance case. In this case, the contract form contains the powers of each of the hired entities. If there is no coordination of the team’s actions, you can reject candidates at any time and invite other people who are able to agree and effectively manage the inherited property on a trust basis.

Agreement on trust management of inherited property: sample and execution

Now let's move on to the rules and procedure for drawing up a document that legally establishes the features of the relationship between the founder and the manager and their powers in the interests of the legal heirs and other beneficiaries.

Under conditions when, to ensure the safety of inherited property, prompt intervention for its management is required, an appropriate agreement is drawn up. On its basis, the founder transfers the inheritance for management for a specified period to a person performing the duties of managing the inherited property in the interests of the beneficiaries.

In the absence of applications for acceptance or refusal of inheritance, the basis for concluding such an agreement becomes an official appeal from the guardianship and trusteeship authorities, heirs and other interested parties, which is registered in the book of appeals at the notary.

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In this case, along with the application, the notary must be provided with information and a number of documents, namely the following data:

about the place and time of opening of the inheritance;
on the consent of the guardianship and trusteeship authorities (subject to certain conditions);
on the consent of the living spouse, if the inheritance is registered as common;
on property rights, as well as characteristics and valuation of property.

Thus, the legislation defines the grounds for concluding such an agreement:

by virtue of the contract;
by force of law, in accordance with Art. 1026 Civil Code of the Russian Federation;
during the inheritance procedure.

The agreement is drawn up in simple written form in two copies and signed by both parties (manager and founder).

Information. The heirs have the right to familiarize themselves with the agreement, but cannot sign it, since they are not a party to the agreement.

Next, the agreement is registered in the register, and the notary’s copy is marked with a mark indicating the assignment of a serial registration number.

When drawing up a contract, the form established for the sale of property must be used. In cases of transfer of real estate under this agreement, based on Article 1017 of the Civil Code of the Russian Federation, registration is required, similar to the transfer of ownership.

Important! To enter into force the agreement in question does not require its certification by a notary.

The trust management agreement must define the parties to the transaction, the essential terms and duration of its validity.

Next we will talk about the conditions, in the absence of which in the contract, the agreement will not have legal force.

Judicial practice under Article 1173 of the Civil Code of the Russian Federation

Ruling of the Supreme Court of the Russian Federation dated October 18, 2019 N 303-ES19-17609 in case N A04-6360/2017
Satisfying the claim, the appellate court, acting within the exercise of the powers granted to it, re-examined the circumstances of the dispute and assessed the evidence presented in the case materials in its entirety according to the rules of Chapter 7 of the Code, including the provisions of the company’s charter, guided by articles 181.4, 181.5, 1112, 1173 of the Civil Code of the Russian Federation, Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies”, proceeded from the fact that that at the time of convening and holding an extraordinary meeting, the trustee did not have the consent of the only remaining participant in the company, Yu.V. Lazutkina. for the transfer of a share in the authorized capital of the company to the heirs of the deceased V.N. Sushkov, in connection with which the heir(s) did not have corporate rights and obligations arising from the status of a participant in the company (participation in managing the affairs of the company, the right to demand the convening of a general meeting participants, voting when making decisions); the heirs had only property rights (payment of the actual value of the share). Under such circumstances, the arbitration court of appeal came to the conclusion that the appealed decisions were invalid.

Determination of the Constitutional Court of the Russian Federation dated March 28, 2017 N 616-O

The provisions of paragraph 4 of Article 1152, paragraphs 1, 2 and 6 of Article 1171, paragraph 1 of Article 1172, Article 1173 and paragraphs 1 and 2 of Article 1174 of the Civil Code of the Russian Federation are aimed at protecting the rights of citizens in inheritance, ensuring a balance of their interests and the stability of civil circulation and in As such, they serve to implement the requirements of Articles 17 (Part 3), 35 and 55 (Part 3) of the Constitution of the Russian Federation and also cannot be regarded as violating the constitutional rights of the applicant.

Ruling of the Supreme Court of the Russian Federation dated 06/07/2017 N 307-ES17-5826 in case N A56-2906/2014

Satisfying the claims made by the plaintiff, the appellate court, with whose conclusions the district court agreed, having examined the circumstances of the dispute and assessed the evidence presented in the case materials according to the rules of Article 71 of the Code, guided by the provisions of Articles 1152, 1153, 1171, 1173 of the Civil Code of the Russian Federation, Articles 8 , 21, 37, 43 of the Federal Law of 02/08/1998 N 14-FZ “On Limited Liability Companies” (hereinafter referred to as the Law on Companies), taking into account the legal positions formulated in the decisions of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, as well as the Presidium of the Supreme Arbitration Court of the Russian Federation, determination of the Supreme Court of the Russian Federation dated August 26, 2016 N 306-ES16-8387, proceeded from the fact that the right of Amelina E.S. and Amelina I.S. in total, 2/3 of the share of the authorized capital of the company arose by force of law after the death of the testator, confirmed by certificates of the right to inheritance and not refuted by a judicial act in case No. 2-548/2014, and therefore there are no records in the Unified State Register of Legal Entities about them as participants the company did not deprive these persons of the right to make corporate decisions.

Essential terms of the agreement

The essential conditions that must be listed in the agreement for trust management of inherited property include:

the subject of the agreement, that is, a designation that the specified property is transferred specifically to trust management;
names and addresses of the founder and manager;
a list of property transferred for trust management, including its characteristics, composition and description;
remuneration to the person who assumed the powers of the manager, if it is provided for in the agreement;
the form and amount of remuneration if there is payment for the fulfillment of the obligations of the trustee;
identification of all beneficiaries;
duration of the agreement.

In addition to the essential conditions provided for in Art. 1016 of the Civil Code of the Russian Federation, it is recommended to include in the document also the rights and obligations of the person carrying out actions to conduct the affairs of the entrusted inherited property, and other details.

Important! Upon expiration of the agreement and in the absence of a statement from one of the parties about its termination, the agreement is considered extended for the same period and with the same conditions that were specified in it.

The legislation provides for the possibility of having in the contract:

a plan for the transfer of property entrusted to management after the end of the contract period;
the procedure for paying the costs incurred by the manager in the performance of his duties;
liability for non-compliance with the contract by the manager;
deadlines for providing reports on the fulfillment of their obligations to the managing founder and heirs;
situations leading to termination of the contract, as well as steps taken in connection with this.

For what period of time the law provides for the validity of a trust management contract and under what circumstances is it possible for one of the parties to terminate it early, we will consider in the next chapter.

Contract time

The validity period of the agreement on trust management of inherited property is determined by the notary. However, it must not exceed the maximum period established by law of five years.

According to Articles 1154 and 1156 of the Civil Code of the Russian Federation, no more than nine months are given for the transfer of property. Therefore, after receiving a certificate of entry into the inheritance of all or one of the heirs and if the inherited property contains objects under trust management, the heirs become founders of the trust management agreement, if the agreement is still in force, while the notary relieves himself of the powers of the founder.

The heir who has become the founder may terminate the fulfillment of the terms of the trust agreement and demand a report on it from the manager. In this case, the property under the direction of the trustee passes to the legal heir.

Important! If there are no demands from the inheritors to terminate the trust management of their property, the management agreement is extended for five years. Termination of its effect is possible under the conditions provided for in Article 1024 of the Civil Code of the Russian Federation.

Reasons for early termination of a trust management agreement include the premature death of the manager or beneficiary, recognition of the manager as incompetent, his refusal to perform his duties, bankruptcy of the beneficiary.

In the event that inherited property encumbered with a pledge is transferred to the management without notifying the trustee, the manager has the right, through a court decision, to demand termination of the agreement with the payment of remuneration that was due to him for the fulfillment of obligations within one year.

If a person acting as a manager or founder refuses to fulfill his duties stipulated in the contract, he must notify the other party to the transaction about this three months before termination, unless other deadlines were specified in the contract for such a case.

Existing standards for payment of remuneration to the manager

Now let’s figure out what methods of payment to the trustee are provided for by law if he fulfilled his obligations on a reimbursable basis, as well as their sources.

The parties entering into the agreement determine the amount of remuneration for the trustee and indicate it when drawing up the document. In addition to remuneration, the trustee must be reimbursed for expenses incurred by him in the performance of his duties as a manager. Expenses for the management and protection of inherited property are reimbursed from the inheritance.

Based on the norms defined by the legislation of the Russian Federation, the amount of remuneration should not exceed 3% of the value of the entire inherited estate. It is also worth remembering that an individual acting as a manager is not exempt from paying taxes, which, based on Article 224 of the Tax Code of the Russian Federation, amount to 13% of profits received in the territory of the Russian Federation.

Rights and obligations of the manager

The manager must fulfill his duties as provided for by law and contract.

Main responsibilities of the manager:

participate in the management of the enterprise;
vote in meetings of the management team of the enterprise as the testator willed;
provide a management report to the notary within the period stipulated by the contract, but no less than once every 2 months.

Manager rights:

receive remuneration for the performance of duties provided for in the contract;
hold a meeting of heirs;
request the necessary documents;
study the activities of the enterprise;
make management decisions.

The manager does not have the right:

exchange shares;
withdraw from the company's membership;
give or sell property;
fulfill the obligations of the testator until the heirs take ownership of the property.

An exception is the situation when the will contains an order to pay a certain obligation at the expense of the inherited property.

Note! Expenses for trust management, for assessing property and for ensuring the safety of property transferred for management are carried out at the expense of the inherited property.