Will or inheritance by law - what is more important?

Entry into inheritance under a will

The procedure for accepting an inheritance under a will involves the heir submitting an application to a notary. By making a statement, the successor expresses his desire to accept the inheritance after the death of the testator. The application must be submitted to the notary office at the place where the inheritance was opened.

The place of opening of the inheritance is the last place of residence of the deceased. And if it is impossible to find out this place of residence, then the inheritance is opened at the location of the deceased’s real estate or the main part of any other property.

Law

When inheriting property by law, only a relative of the deceased can claim their rights to it. Division of property is possible only among applicants of the same level, if the heir of the 1st stage is the only one - everything remains to him, unless he refuses the inheritance. However, with this approach, all immediate relatives receive the property due to them.

Having a more distant degree of relationship, it makes no sense to contact a notary and submit documents if there are closer relatives. But there are also some nuances - sometimes heirs are recognized as unworthy, it is possible to prove through the court the fact that they are not worthy of receiving the inheritance, and then other applicants can be considered.

If you do not apply for an inheritance after 6 months, the right to it passes to subsequent relatives, and if no one applies, the property becomes at the disposal of the state.

The bank is not obliged to search for the deposits of the deceased; in case of inheritance, according to the law, the heirs and the notary have to do this. They pass along with their property and debts. But if the debts remain without property, the heir is not obliged to repay them. The same applies to situations where the debt is higher than the value of the inheritance.

Filing an application for acceptance of inheritance

The application is submitted by the heir in person or sent by mail to the address of the notary's office. It is not possible to submit an application for inheritance rights through a proxy.

There is no approved application form for inheritance rights. But in any case, it should contain the following information:

• Full name of the heir, his address of residence, passport details;
• Date of death of the testator;
• Details of the will;
• List of inherited property;
• The heir's desire to accept the inheritance;
• Signature and date.

What is inheritance

Inheritance means the acceptance of the rights and property of a deceased person through a succession channel. To become successors to the original owner, you must have a blood, marital relationship or some other emotional contact with him. At the same time, the law gives the alleged alienator the right to make an independent choice regarding the writing of a will and refusal to do so.

But the death of the testator may happen suddenly, and during his life he did not think about making a testamentary disposition. In any case, if there is a will, the division of the owner’s property is carried out according to it, and in the absence - according to the law. It should be noted that freedom of expression is promoted in Russia. Anything can be given as a gift to any beneficiaries.

In this case, there arises a natural need to preserve inheritance rights by the least protected segments of the population and also by the dependents of the deceased testator. They can be children, relatives and spouses on the basis of incapacity and minority. The law ensures that such people have a mandatory share.

Accordingly, in the absence of a will, only persons related to the citizen become heirs, but in the sequential order of their presentation to inherit property - in turn. The number of queues is 7. At the same time, the previously indicated obligatory heirs are not included in any of them, but are considered simultaneously with the currently relevant group of persons.

The principle of universality of hereditary succession

Persons who may be drafted have the opportunity to formalize their right within the time frame for accepting the inheritance after its opening. If there are no heirs, then the property will not remain without successors. In such a situation, it will go to the budget of the subject in which it is located, or to the federal state. Housing is transferred to the social fund.

Mandatory share

As a general rule, under a will, property is transferred to the person indicated in the text of the document. But the legislator protects the rights and interests of the most vulnerable categories of the population: children, pensioners and the disabled. In this regard, the Civil Code of the Russian Federation has a norm providing for a mandatory share in the inheritance for the above-mentioned citizens, regardless of the contents of the will.

This means that they are entitled to a small share, even if the testator left them nothing. The size of the obligatory share is at least half of the part that would be due to the heirs if the inheritance took place according to law.

Differences between inheritance by law and by will

The legislator establishes 2 grounds for entering into inheritance (Article 1111 of the Civil Code of the Russian Federation):

• will;
• norms of law.

Each of them is regulated in detail by law and has its own pros and cons. The owner can independently decide which option suits him.

Main differences

With a large number of differences, the procedure for entering into inheritance is identical. The heir must contact a notary or actually accept the property (Article 1153 of the Civil Code of the Russian Federation).

When contacting a notary, a citizen receives a certificate of inheritance rights. Based on this document, the property must be re-registered to the heir.

When actually accepting the property of the deceased, the fact must be proven. Otherwise, ownership will have to be established in court.

Documents for registration

To enter into inheritance rights, you will need to prepare a package of documents. It includes:

• Passport;
• Death certificate;
• Will;
• Title documents for property;
• Home Book;
• Documents confirming relationship with the deceased.

Above is an approximate list of documents. The list of documentation may vary depending on the type of property (real estate, transport). In addition, a notary within the framework of an inheritance case independently has the right to send requests to the authorities regarding the ownership of property, if necessary.

How can a will be declared invalid?

Very often in life there are situations when a person, against his will, could write a will that dissatisfies his relatives and after his death, having learned that they are not in it, but some outside uncle is present, the relatives, of course, will rebel.

It is possible to prove that the deceased was not of sound mind or was subjected to unlawful actions of any person, but a number of measures will have to be taken:

• it is necessary to conduct an examination, during which a specialist examines a chart with medical indications, the procedure for prescribing certain drugs, how they could affect a person and what effect they have on the brain.
• Neighbors are also surveyed regarding the adequacy of the resident and his condition before his death.
• A request is made to medical organizations that register patients, a certificate is taken from them stating whether the given citizen was registered

Based on this data, the court makes a decision to recognize the will as valid or invalid.

If you are a testator and want to protect your will as much as possible from challenge, then take appropriate measures during your lifetime, namely:

1. Contact a lawyer or notary for help in drafting
2. Enlist witnesses who will confirm the purity of your intentions and sound thinking.
3. Take certificates stating that you are not registered

Financial expenses

Registration of inheritance under a will is a paid procedure. The cost of expenses depends on the degree of relationship between the heir and the deceased. The following state fees are charged for issuing a certificate of inheritance:

• 0.3% of the value of the inheritance (but not more than 100 thousand rubles) – when received by children, parents, spouse;
• 0.6% of the cost (but not more than 1 million rubles) – when received by all other heirs.

In addition to paying the fee, you will have to pay for notarial services (assistance in drawing up applications, preparing documents for issuing an inheritance, using special notarial forms). The amount of notary services varies in different regions of the Russian Federation. There are no uniform tariffs; fees are charged by agreement between the notary and the client. See how much does a certificate of inheritance cost from a notary?

Inheritance contract

An inheritance agreement is one of the new ways to resolve the issue of inheritance.
Such an agreement is concluded by a notary between the heir and the testator. It may stipulate various conditions, for example, certain obligations of the heirs to the testator (provide financial support, take care of a pet, etc.). At the same time, the testator has the right to terminate it at any time, but compensate the heirs for losses. But an inheritance agreement is not able to protect against heirs with a mandatory share, who will still be able to claim part of the inheritance. But if there are none, then an inheritance agreement looks like a much more preferable option over a will, and it is much more difficult to cancel it in court, since it is concluded between the parties and is not subject to the secrecy that applies to a will.

We definitely advise that it is impossible to choose, since everything depends on the specific situation. If there are no unwanted heirs with an obligatory share, then it is better to consider the method with a will and an inheritance agreement. If there are such heirs, or there is a risk that the will will be contested, then you can consider the issue of transferring your property during your lifetime, i.e. by concluding a gift agreement or a lifelong maintenance agreement with a dependent.

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Who can challenge an inheritance under a will?

It is not uncommon for an heir to encounter the fact that other relatives of the testator do not agree with the will. Disputes arising between successors often lead to litigation. Challenging a will is a fairly common claim brought by relatives of the deceased.

In practice, revoking a will is not as easy as it seems. To invalidate a document, there must be compelling reasons. These could be:

• Drawing up a will under the influence of violence, pressure, blackmail, deception;
• Drawing up a will by an incapacitated person or limited capacity by a person;
• Failure to comply with the form of the document;
• Forgery of a signature on a will;
• The will contains clauses that are contrary to the law.

As we see, the mere desire of relatives to challenge the last will of the deceased is not enough. Claims to revoke a will must be supported by evidence. So, if the plaintiffs refer to the falsification of a document, the results of the examinations must be attached. If at the time of drawing up the will the person was incompetent, then it is necessary to attach a copy of the court decision recognizing him as such.

If the will is revoked by a court decision, the document will not have legal force. Accordingly, the citizen specified in the will will not be able to inherit the property.

Apartment without a will

Disputes over inheritance, according to lawyers, are one of the most complex, lengthy, and, to hide it, expensive in the truest sense of the word. From year to year, the number of civil inheritance cases in our courts is steadily growing. Therefore, the explanations given by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation may be useful to many citizens who are faced with the problem of dividing an inheritance.

According to the explanation of the Supreme Court, none of the heirs in the dispute has a decisive advantage

Our story is a dispute about the division of a Moscow apartment, which was left to adult sisters from their brother. Only the deceased brother did not leave a will. One sister lived in her brother’s apartment and after his death remained to live there. In legal terms, the sister, who lived with her brother, actually accepted the inheritance from him - the apartment. This term - “actual acceptance” - is understood as a situation where a citizen remained to live in the testator’s home and pay all expenses related to the property.

According to some citizens, such heirs living together with the testator have an advantage over those heirs who were far away at the time of the inheritance. Such “distant” relatives, simply learning that an inheritance has opened, go to a notary to have it accepted.

According to the explanation of the Supreme Court of the Russian Federation and its Judicial Collegium for Civil Disputes, none of the heirs has a decisive advantage in such a dispute.

The situation that became the subject of consideration was absolutely vital. A citizen filed a lawsuit with the district court. She named her sister as a defendant in her lawsuit. This sister, living with her unhealthy brother, cared for the sick man, managed his money by proxy, and repaired her brother’s home at her own expense. Well, after his death, she continued to live in the apartment and did not go to the notary to register housing rights.

But her sister went to the notary as soon as she learned about her brother’s death and the apartment he left behind in the capital. But when the citizen came to the notary to accept the inheritance, she was refused. The notary explained to the visitor that the six months allotted for accepting the inheritance had already expired, and by that time her sister had already registered ownership of the entire apartment, including the second sister’s share.

The offended citizen went to court, because she did not give up her share in the apartment. And her sister, it turns out, actually accepted the inheritance, although she did not contact the notary. The relatives failed to come to an agreement peacefully.

The district court, which received a claim from one of the sisters, the one who lived with her brother, satisfied her demands.

The district court in its decision explained that the younger sister lived with her brother for many years and after his death continued to use the property and maintain it, and did not refuse the inheritance, that is, she actually accepted it. The losing side challenged this verdict in the city court. They decided that living in an apartment that belonged to the testator does not indicate acceptance of the inheritance.

As a result, the case reached the Supreme Court of the Russian Federation, they requested the materials of the dispute, studied and explained this.

According to the Judicial Collegium for Civil Cases of the Supreme Court, the district court resolved the dispute correctly. The high court recalled that property is inherited by will or by law, and in order to acquire an inheritance, the heir must accept it within six months from the date of opening. This can be done in two ways: submit an application for acceptance of the inheritance to a notary or “carry out actions that will indicate its actual acceptance.” The list of these actions is in Article 1153 of the Civil Code of the Russian Federation. There, in particular, it is written - entry into the management of property, measures for its preservation and protection, expenses for the maintenance of property, payment of debts of the testator, etc.

That is, we are talking about those actions in which “the heir’s attitude towards the inheritance as his own property is manifested,” as the Plenum of the Supreme Court of the Russian Federation specified (No. 9 “On judicial practice in inheritance cases”). Such an action could be the heir moving into the testator’s apartment or living in it on the day the inheritance is opened, the Supreme Court emphasized.

“Our heroine used her brother’s apartment, and the court found that by her actions she expressed her will to accept the inheritance, having actually accepted it,” emphasized the Judicial Collegium for Civil Cases of the Supreme Court. Having chosen a place of residence in the disputed apartment and bearing the burden of maintaining the disputed property, she, who did not refuse to accept the inheritance, is considered to have accepted the inheritance, the panel said.

And here is the main idea of ​​the high court - obtaining a certificate of the right to inheritance upon its actual acceptance is a right, not an obligation of the heir.

As a result, the Supreme Court upheld the decision of the trial court.

Peculiarities

Inheritance by will opens up opportunities for entry to all persons specified in the document, without reference to degrees of relationship. People who are strangers to the family can be listed on this paper, having every right to claim.

The main document proving rights is the will itself, and entry is also carried out after a six-month period, which is given for all proceedings on the issue. The rules remain standard. It can be written not only to an individual, but also to a legal entity.

Inheritance queues

There are several inheritance queues. Representatives of each subsequent line receive the right to claim the inheritance only if representatives of all previous lines renounced their rights, were found unworthy of the inheritance, were removed, or these representatives simply do not exist. Representatives of one line of inheritance who have declared their rights must equally divide the entire inheritance among themselves.

The first line of inheritance is represented by children, spouse, and grandchildren (by right of representation). Natural children have equal rights with adopted children and those born out of wedlock (only if paternity has been officially proven). As for the spouse, in order to receive the right of inheritance, he must be legally married to the deceased at the time of his death.

The second line of inheritance is represented by the brothers and sisters of the deceased, as well as grandparents, nephews and nieces (the latter by right of representation). As for brothers and sisters, in this case full-blooded relatives have equal rights with half-blooded ones. The important fact is that at least one of the parents is common.

The third line of inheritance is represented by the deceased’s uncles and aunts, as well as cousins ​​(the latter only by right of representation)

If all the heirs of the first three stages have not exercised their rights, then the property is then transferred according to the following algorithm:

• the fourth line consists of the great-grandparents of the deceased;
• the fifth line consists of great-aunts and grandfathers, as well as cousins ​​and granddaughters;
• the sixth line consists of cousins, nephews and nieces, as well as great uncles and aunts. In addition, it includes the great-grandchildren of the deceased;
• the seventh group includes the stepmother, stepfather, stepsons and stepdaughters;
• the eighth group consists of disabled dependents of the deceased (only on the condition that they lived with him for at least one year until the day of his death).

When examining the issue of grounds for inheritance, one should not forget about such a concept as hereditary transmission. It becomes relevant in the case when the heir died before officially entering into the inheritance. In this case, the circle of those claiming certain property rights is equal to that described above.

In addition, attention should be paid to the phenomenon of inheritance by right of representation. The essence of this process is that the inheritance of a person who died at the same time as the testator or before the inheritance procedure was started passes to descendants

These are divided into three categories, namely:

• grandchildren of the testator and their direct descendants;
• persons who were nephews and nieces of the testator;
• persons who were cousins ​​of the testator.

Sources of inheritance law

Sources

inheritance law are a hierarchical system of regulations containing the rules of inheritance law and regulating inheritance legal relations.

The primary source of inheritance law

is the Constitution of the Russian Federation. The right of inheritance is guaranteed by Art. 35 of the Constitution of the Russian Federation. From this article it follows that the state guarantees the transfer of property rights from the testator to the heirs, if not by will, then by the right of inheritance by force of law; the right to inherit any property belonging to the testator; The state establishes restrictions on the freedom of will by determining the obligatory share. However, the law may establish restrictions on the freedom of will of property owned by the testator (property limited in civil circulation, as well as property withdrawn from civil circulation).

Inheritance legal relations are also regulated by Federal laws adopted in accordance with the norms of the Constitution of the Russian Federation. This type of sources includes:

1. norms of the Civil Code of the Russian Federation, part one dated November 30, 1994 No. 51-FZ, part two dated January 26, 1996 No. 14-FZ, part three dated November 26, 2001 No. 146-FZ and part four dated December 18, 2006 No. 230-FZ (Civil Code of the Russian Federation);
2. norms of the Tax Code of the Russian Federation, part one dated July 31, 1998 No. 146-FZ and part two dated August 5, 2000 No. 117-FZ (Tax Code of the Russian Federation);
3. norms of the Land Code of the Russian Federation of October 25, 2001 No. 136-FZ (Land Code of the Russian Federation);
4. norms of the Fundamentals of Legislation of the Russian Federation on notaries dated February 11, 1993 No. 4462-I, which regulate the rules and procedure for making a will by a notary;
5. norms of intellectual property laws (it is impossible to transfer the right of authorship to a work by inheritance, etc.);
6. other regulations.

In practice, when inheritance legal relations arise, many controversial situations arise (incorrect interpretation of legal norms, conflicts of law, etc.). To correctly resolve issues related to the application of the rules of inheritance law, it is necessary to resort to clarifications of the Plenum of the Supreme Court, as well as the Constitutional Court. Not all authors adhere to the point of view that the rulings and rulings of the Supreme Court and the Constitutional Court are sources of inheritance law, since the courts do not have the right of legislative initiative, i.e. rulings and rulings are not normative in nature, but are only advisory and explanatory character. Despite the fact that many authors do not consider the explanations of the Supreme and Constitutional Courts to be sources of inheritance law, they are necessary material when resolving controversial situations when applying the rules of inheritance law.

How to challenge a will

The “last will” can be challenged by the heirs of the first stage. If there are none, then the second one. It can also be challenged by the heirs of the compulsory share - those same dependents.

If the heir feels that the will infringes on someone’s rights, he can cancel the document at the notary or through the court. This requires legal grounds.

General grounds

the will was drawn up while under the influence of drugs or alcohol, or in a state of serious illness;

the real will of the testator does not correspond to that stated in the will;

the contents of the will are contrary to the law;

the document is incorrectly formatted;

the testator was unable to make a will due to mental disorder.

It is very difficult to identify physical or mental disabilities in the testator. Therefore, in order to confirm or refute the disease, a special post-mortem forensic psychiatric examination is carried out.

Special grounds

the testator wrote a will under threat of physical or mental violence;

there is no signature or date in the will;

the document was not drawn up by the testator;

the document was not certified;

there were no witnesses in situations requiring their presence;

the signature was forged during registration.

Grounds for recognizing an heir as unworthy

the person committed a crime against the testator;

a person has been deprived of parental rights in relation to a child-testator;

the person evaded maintaining the testator.

It is important to remember that you cannot revoke a will without compelling legal grounds. Even if there are minor inaccuracies in the document that do not distort the general meaning, this will not give grounds to cancel it

It is also impossible to challenge a will during the life of the testator: this will be possible only after recognition of the fact of death.

If the court revokes the will, the document that was created earlier will come into effect. If there was no will before the court decision, then the property will be distributed among all heirs according to the law.

Benefits of each method

By looking at the differences and details, you can understand in which cases it is more profitable to inherit by law, and in which - by will. In inheritance by law, property can only be transferred to a relative, an individual, while the document opens up the possibility of providing property even to the state or organization.

Inheritance by law gives rise to a lot of difficulties associated with the order and clarification of rights, while a will immediately puts everything in its place, and therefore, if there are a large number of relatives or certain features of a person’s will, it makes sense to write a will.

However, it is worth understanding that a will does not exclude the need to pay a fee, and in addition, the drafter himself will have to pay; the notary does not work for free.

The will has its own limitation period, and this is also worth remembering; it is updated annually.

If we are talking about a small inheritance, or there are only one or a few relatives to whom the property will pass by default, there is no need to draw up a will. But in more complex situations it will not be possible to do without it.

What does the inheritance consist of?

From property.

Property is divided into movable, immovable and other.

Real estate includes: apartments, buildings, land plots, structures.

Movables include what is not recognized as real estate. For example, jewelry, cash, cars.

Other property includes non-cash money and uncertificated securities.

Please note: not everything that belonged to a relative can be inherited. For some things the heir must have permission

For example, you cannot give a gun to your grandson if he does not have the legal right to own a gun.

From property rights and obligations

. Not only property is inherited. You can obtain the rights of the testator, his obligations and debts to other people and organizations.

For example, the heir receives the right to claim debts. This means that if someone owes your relative money, then you, as an heir, can try to return it. The opposite situation: if your relative himself has debts, then you are obliged to pay them off. As an example: a mortgage or car loan.

Not all rights and obligations can be inherited; there are exceptions:

You cannot receive alimony;

You cannot receive compensation for harm that was caused to the health of the testator during his lifetime;

You cannot obtain personal non-property rights: business reputation, the right to a good name, copyright, the right to the title of winner.

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