How to correctly draw up a will for an inheritance during your lifetime

What is a will

A will means a written order of a citizen in the event of his death. The document allows you to determine the circle of heirs and the size of their shares in the property being transferred.

The will comes into force after the death of the testator. The owner has the right to repeatedly change or cancel the document during its life.

Important! A special feature of the expression of will is the possibility of depriving relatives of their rights to property. The testator is not obliged to inform anyone of his decision.

The order is drawn up in 2 copies .
One sample remains with the notary, the second is given to the testator.

Procedure for changing and canceling a will

The testator can revoke the will or change its contents whenever he wants. However, he is not obliged to indicate the reasons for such a decision (Article 1130 of the Civil Code of the Russian Federation). In order to revoke a previously made will, he can prepare a new will or issue an order to revoke the previous one.

If a new will is drawn up, it is recommended that it explicitly state that the validity of the previously prepared document is canceled. If this is not done, the old will can be canceled only in the part in which it contradicts the new one (Part 2 of Article 1130 of the Civil Code of the Russian Federation).

Cancellation of a previous will by issuing an appropriate order is provided for in Part 4 of Art. 1130 Civil Code of the Russian Federation. In this case, there is no need to draw up a new will. An order to cancel a document must be prepared in the same form as the document whose effect is being cancelled. According to paragraph 5 of the same article, a will adopted in emergency conditions cancels or changes the validity of only the same will. A new testamentary disposition in a bank can only affect the same previous disposition (clause 5 of the same norm). It will not affect other types of wills.

A new will or order to cancel the previous one must be certified by a notary. After completing the necessary checks, you will receive a copy of the certified document. For notary services, you will need to pay a state fee or pay a notary fee.

For information on the procedure for revoking a will by a testator, read the article: How to revoke a will for inheritance.

Types of wills

The legislator distinguishes 4 types of administrative documents:

1. Ordinary will . It can be issued by the testator or a notary. If a draft will is prepared by a notary, the testator will subsequently have to familiarize himself with the contents of the document. When drawing up an order, the testator is explained his rights/responsibilities and the legal consequences of certifying the will. If everything is clear to the testator, he signs the order in the presence of a notary. One copy of the document is given to the testator, the second is stored in the notarial archive.
2. Closed order . It is not necessary to disclose it. A citizen can draw up an order and submit it to a notary in a sealed envelope. The testator must draw up such a document with his own hand and sign it. If the requirement is not met, then the expression of will may be declared invalid. 2 witnesses must be present when transferring a will . The specified persons are required to put signatures on the transmitted envelope. After which the notary places the document in a new envelope and makes an appropriate inscription on it. After completing the procedure, the notary gives the testator a document confirming the acceptance of the order.
3. Testamentary disposition . The document has the force of a will, but is valid for bank deposits. The testator cannot assign other property in this way. Such an order is certified by an authorized employee of the bank in which the testator’s money is deposited. Inheritance of the deposit occurs in the general manner. The investor can set a condition for the heir to receive the money. For example, you can withdraw a deposit only when the heir reaches 18 years of age.
4. Expression of will in emergency circumstances. Emergency circumstances mean a threat to the life of the testator (catastrophe, natural disaster, criminal attack). If the testator really cannot contact a notary and is in danger, then the will can be drawn up in writing. Such a document is handwritten by the testator and signed in the presence of 2 witnesses . The testator's last will must be clear from the text. Within 1 month after the end of the special situation, the testator must contact a notary and have the document notarized. To enter into an inheritance, recipients must have the document certified in court.
5. Joint will of spouses . A husband and wife who are officially married can draw up a joint document. It must be in written notarial form. It cannot be certified by persons replacing the notary, or by witnesses in an emergency. In the event of the death of one of the spouses, the second has the right to cancel the document or change it at its own discretion.

Challenging a self-executed will

A will, regardless of whether it was drawn up independently or with the participation of a notary, can be challenged. If citizens believe that there are grounds to recognize a document reflecting a person’s will as invalid, they have the right to go to court to provide evidence of this point of view.

Grounds for challenge

A self-executed document reflecting the wishes of the will-maker who has died can be challenged:

• according to the circumstances under which the testamentary disposition was drawn up and certified (for example, if the opportunity to contact a notary was not used);
• essentially - controversial positions in the text regarding the size and share of inherited property, the exclusion of someone from the number of heirs, and more.

It may be necessary to prove the fact that the person freely expressed his will in the will.

Declaration illegal

If during the trial in court a decision is made to accept the evidence provided by the plaintiffs, then the act of expression of will drawn up without the participation of a notary is considered illegitimate. In the future, the procedure for inheriting the property of a deceased citizen occurs according to the law. Judicial practice shows: despite the fact that a will that is not notarized has legal force, the heirs are forced to go through legal proceedings.

A capable and adult person is entitled to draw up a will by hand without a notary in some situations regulated by the Civil Code of the Russian Federation.
A circle of persons has been determined who, under specific circumstances, may have the authority to act as witnesses and witnesses to this act of expression of will. Strict adherence to the rules regulated by law will avoid mistakes and eliminate the possibility of challenging it in court. Order a free legal consultation

Who can be named as an heir?

The law gives almost complete freedom of action to the testator. He can assign his property to relatives, third parties, an enterprise or the state (Article 1119 of the Civil Code of the Russian Federation).

The will can specify 1 or more claimants to the testator's assets. Additionally, it is possible to display the size of the share of each of them.

The testator may not indicate heirs, but transfer his property to the inheritance fund for subsequent disposal at his request. The foundation is registered by a notary after the opening of the inheritance. The share of property determined by the testator is transferred to the foundation.

Thus, a citizen can provide for the disposal of his property:

• monthly payments to relatives;
• investments in shares and other securities;
• charitable payments;
• other actions at the discretion of the owner.

The only limitation is that the testator cannot deprive socially vulnerable citizens of a share of the inheritance.

The rule on compulsory share of inheritance applies to the following citizens:

• minor children;
• disabled children, parents, spouse;
• disabled dependents of a deceased citizen.

If at the time of the owner’s death such a person is identified, he is entitled to at least half of the share that relatives inherit within the framework of the law (Article 1149 of the Civil Code of the Russian Federation).

Important! Deprivation of these citizens of a share of property may become grounds for declaring the order invalid.

The obligatory heir must choose between payments from the inheritance fund and the obligatory share. However, the share cannot exceed the amount for the maintenance of a citizen in order to maintain the standard of living that was available to him during the life of the testator.

Is it possible to bequeath a mortgaged apartment?

As a rule, transactions with property that is pledged require the consent of the pledgee (bank), which is difficult to obtain. However, you can also bequeath an apartment that is under mortgage . Based on clause 2 of Art. 1119, the owner of the mortgaged property has the right not to notify the bank either about the contents of the will, or even about its existence.

Attention

The bank does not have the right to prohibit bequeathing an apartment that is under mortgage. Any restrictions violate the provisions of Part 3 of Art. 37 of the Federal Law “On Mortgage (Pledge of Real Estate)” and are void.

According to Art. 38 of the Mortgage Law, by accepting a mortgaged apartment, the heir assumes all the obligations of the testator to repay the mortgage loan. If the apartment was passed to several heirs, then the debt is divided between them in proportion to the shares in the inherited housing. If none of the heirs accepted the apartment, then it goes to the bank.

What documents are needed

To draw up a will, you must prepare the following papers and information:

1. Civil passport of the testator.
2. List of heirs and copies of their documents . Additionally, it is necessary to indicate the residential addresses and dates of birth of legal successors. If a citizen wanted to nominate an heir in the event of the death of the applicant, then his data will also be required.
3. List of property to be released . Not only a list of assets, but also the shares of each heir can be indicated here. If the testator does not indicate specific shares, then the inheritance is distributed in equal parts among the claimants.
4. Certificate of absence of mental illness . If a citizen has reached the age of 70 , then it is advisable to prepare a certificate from a medical institution confirming the absence of mental illness. It can be taken from a psychiatrist at your place of residence. The certificate will be additional confirmation that the person is aware and aware of the consequences of his actions. The absence of such a document may lead to a will being contested. Today, there are often cases where an administrative document is declared invalid due to the fact that the person did not realize the significance of his actions or could not control them.
5. Additional papers . The list is not final. For example, if a foreign citizen contacts a notary office, you will need a foreign passport and its translation into Russian.
6. Civil passports of witnesses . If witnesses will be involved in the registration of the inheritance, their passports will also be required.

Procedure for registering an inheritance

Inheritance is carried out according to a strictly regulated order. Below we will consider in more detail the process of accepting the property of the testator after his death. To resolve any questions regarding such a procedure, it is recommended to seek legal assistance.

Step 1 – accepting the inheritance

There are several ways to write a statement. You need to contact a notary who provides services in the region where the deceased lived. The legally established period of application is six months from the date of death of the testator. No less relevant is the actual acceptance of the inheritance. However, writing an application is allowed if the applicant is already using the property and paying bills for its maintenance. If it is impossible to personally engage in this process due to being in another city, then it is permissible to carry out this procedure with the involvement of a trusted person.

Step 2 – collecting documents

Before you start writing an application, it is important to collect a complete package of documents. This must be done in a timely manner, since many extracts and official certificates have a set regulated validity period. It is mandatory to submit:

• death certificate;
• extract from the house register at the place of residence;
• documents confirming the relationship with the deceased;
• will (if there is one).

Step 3 - opening an inheritance case

To do this, you need to come to a notary with the above documents to draw up a statement of desire to enter into inheritance rights. Additionally, you will need to provide identification. If there is a benefit for reducing the cost of state duty, supporting certificates must be presented. After carefully studying the documentation, the notary will be able to open an inheritance case.

Step 4 – collecting documents for specific property

Regardless of what objects are included in the inheritance mass, the application is drawn up in accordance with the standard form. The only difference is the list of prepared documentation. So, when registering:

• the deposit will require an agreement concluded with the bank, a savings book;
• vehicle – registration and technical documentation, cost assessment report;
• plot of land - cadastral plan, assessment report, certificate of registration;
• apartments – certificate of registration, statement of value, deed of transfer, title documentation.

Before visiting an authorized specialist, you should first consult what is required in a particular case.

Step 5 – second visit to the notary

When applying again, you will need a full package of documents to verify the data and register the share that is rightfully assigned. If the outcome is successful, an exact date will be assigned when it is allowed to pick up the document and start registering the delivered object in accordance with the norms of current legislation.

Step 6 – last visit to the notary to obtain the certificate

Before the appointed time, the authorized person will conduct a full check and prepare a document on the basis of which the potential recipient will be able to dispose of the inheritance due. In this case, it is important to carefully double-check the specified passport data. Mistakes can lead to serious problems.

What is needed to compile

The drafting of a will usually takes place in a notary's office. The place of residence of the testator does not matter. A person can contact any notary in the country.

Actions of a notary when drawing up a will:

1. Establishes the identity of a citizen,
2. Checks his capacity.
3. Explains the rights and responsibilities of a testator.
4. Explains the rules of law on the secrecy of a will (in the presence of witnesses, an executor, an executor, and a translator).
5. Provides assistance in drafting a written document (at the request of the applicant).
6. Speaks out the text of the document (if a notary was involved in the execution of the will). The will shows the reason why the testator was unable to read it himself.
7. Checks the text for compliance with legal norms (if the testator was involved in drawing up the expression of will).
8. After reading the document, the testator puts his signature on it.
9. If a person cannot sign a will on his own due to illness or illiteracy, then it is signed by another person in the presence of a notary. At the same time, the administrative document displays the reason why another person is signing and indicating his details (full name, registration address).

The notary has no right:

1. Require the provision of evidence confirming the rights to the property being transferred.
2. Require the consent of the potential successor.
3. Deny the testator the presence of witnesses, with the exception of heirs. Witness details are also shown in the will. Additionally, the signature of the witness must be placed on the administrative document. The notary explains to the parties to the transaction their obligation to maintain the secrecy of the will.
4. Prevent the presence of an interpreter. If a person who does not speak Russian contacts a notary office, the notary must draw up a will and translate the text into his native language. In some cases, an experienced translator is involved. The presence of specialized education or qualifications of the translator is confirmed by relevant documents.

Important! To avoid challenging the will, it is advisable to provide the notary with the documents of title for the inheritance. They will also help the testator to correctly display the information in the will.

How to draw up a will so that it is not contested

In accordance with the provisions of Article 1131 of the Civil Code of the Russian Federation, interested parties write an application to the court if they are sure of the invalidity of the testamentary act.

Such situations include:

• the document was drawn up under the influence of threats (they could be directed at the owner of the property or his relatives);
• the will for inheritance was drawn up in the presence of witnesses who could not perform this function. These are persons interested in receiving property, a notary;
• execution of a document by a minor citizen without the consent of legal representatives;
• the person lacks legal capacity at the time of execution of the act;
• indication in the text of the act of property whose use is limited.

Challenging a will certified by a notary is practically impossible in practice. The main thing is to comply with all the requirements for the preparation of such a document.

Wills equivalent to notarial wills

Sometimes a person is physically unable to contact a notary. Then the will can be certified by other authorized persons:

1. If a person is undergoing treatment in a medical institution or is in a nursing home, then the administrative document can be signed by the head physician of the hospital. Their deputies, doctors on duty, heads of hospitals, and directors of institutions have similar rights
2. If a person is on a long voyage, then the captain of the ship can certify the completed will.
3. The administrative document of the subject who is on the expedition is authorized to be certified by the head of the expedition or seasonal field base.
4. The wills of military personnel and members of their families are certified by the commanders of military units.
5. If a person is serving a sentence in a prison, the will is certified by the head of the particular prison.

The administrative document, which is equivalent to a notarial document, is signed by the testator in the presence of an authorized person. If possible, the will is sent to the testator’s residential address or to the appropriate notary office.

What property can be assigned to heirs?

The testator can write off any property that belongs to him by right of ownership or right of lifelong inheritable possession. You can also bequeath property that will be acquired in the future.

List of possible inheritances:

• vehicles;
• real estate (apartment or share in it, house, land);
• securities;
• precious metals;
• bank deposits;
• copyright;
• insurance payments;
• corporate rights (share in the authorized capital of the enterprise).

What provisions can be included in a will?

A citizen has the right not only to divide property between heirs, but also to oblige them to perform certain actions. Refusal to properly carry out the will of the deceased entails a ban on entering into inheritance.

Options for additional conditions:

1. Testamentary refusal . This is a requirement for heirs to take a socially significant action or to provide one of the relatives with the right to use residential premises for the period of his life.
2. Testamentary assignment . This is a requirement to fulfill the last will of the deceased. For example, take his pets.
3. Appointment of executor of a will . If necessary, the testator can appoint an executor, who will have to oversee the implementation of the last will of the deceased citizen (Article 1134 of the Civil Code of the Russian Federation).

How to correctly draw up and write a will for inheritance

The rules for drawing up a will are determined by law.

When preparing a document, you must comply with:

1. Requirements for a testator.
2. Requirements for the form of the document.
3. Pay the fee.

Requirements for a testator

The law establishes a number of restrictions on the testator when registering his will. Failure to comply with them leads to the possibility of challenging the document.

Requirements for a testator

Requirements for the document form

The expression of will form is not provided by law. The only requirement is written form.

The document can be certified by:

• any notary in the country;
• persons replacing the notary (chief physician of a hospital or nursing home, commander of a military unit);
• witnesses.

The document must contain the following information:

• document's name;
• date, place of drawing up the order;
• information about the testator (full name, passport details, residential address);
• the essence of the expression of will (composition of the inheritance, list of beneficiaries);
• link to familiarize yourself with the provisions of the law;
• footnote on the number of orders;
• signature of the testator, transcript of his surname;
• information about the persons who certify the document;
• link to duty withholding;
• registration number of the form.

Sample will

Sample order for all property

Will

State duty

A state fee is charged for any notarial act. Its size is determined by the Tax Code.

For the execution and registration of a will in 2018, you must pay 100 rubles. Each new document is paid again.

If a citizen leaves behind a closed will, then the state duty for such a document will be 100 rubles. However, for opening the envelope and reading out the administrative document, the heirs will need to pay 300 rubles. (Article 333.24 of the Tax Code of the Russian Federation). Payment of the fee is made at any bank in the country.

Notary services are paid separately. Their size depends on the region where the document was issued.

If a specialist travels outside the notary’s office, the cost of services increases by 1.5 times.

Who can be a testator

All individuals of social maturity can bequeath personal property. For this, a person must be:

1. Adult. Minor citizens have the right to make a will from the moment of marriage or emancipation (declaring the minor legally competent). The latter is carried out by decision of the guardianship and trusteeship authorities for a child over 16 years old who works under an agreement, contract or is engaged in business.
2. Capable. The legal basis for recognizing incapacity can only be a court decision. You can doubt a person’s capacity based on indirect signs (for example, incoherent speech, trembling of hands, obvious absurdity of the content of the document). If it turns out that a person, being legally capable, at the time of writing the act of expression of will was not able to control and regulate his actions, then the legality of the document can also be challenged.

Recognition of a citizen as incompetent or partially capable after the fact of making a will does not affect the result of assessing its validity.

FAQ

Citizens are increasingly thinking about making wills. Naturally, many pressing questions arise. Let's look at some of them.

Does a will need to be certified by a notary?

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The administrative document is subject to mandatory notarization. Failure to comply with the rule entails the invalidity of the order.

However, the law provides for a number of exceptions:

1. If a citizen lives in a territory where there is no notary, then it is necessary to contact an authorized person. For example, the head of the local administration or other local government official (Article 37 of the Law on Notaries).
2. If the testator is serving time in prison, the director of the prison can certify the document.
3. When undergoing a long course of treatment in a medical institution, a person can contact the main or duty doctor of the institution.

Is an oral will allowed?

The law excludes the possibility of inheriting on the basis of an oral will. Of course, relatives can agree among themselves on the transfer of some material assets.

However, if we are talking about movable or immovable property, securities or corporate rights, then the will must be exclusively in writing.

Is it possible to write a will for bequeathed property before the death of the owner?

The law excludes this possibility. Heirs can assign specific property to one of their relatives.

If the testator fears that a potential heir will die before the inheritance is opened, then an additional applicant can be indicated in the order.

How many wills can a citizen make?

The law does not limit the testator to a certain number of dispositions. Here it is appropriate to proceed from the amount of property that a particular testator has.

If necessary, the testator can change the previously drawn up order. For example, adjust the composition of the heirs or the size of the alienated shares.

Can witnesses be present when making a will?

The presence of witnesses when drawing up a regular will is not mandatory. However, the testator can invite trusted people. Their participation will confirm the last expression of the citizen’s will and his sanity when signing the order.

If a closed will is drawn up, then the presence of witnesses is mandatory when transferring the document to the notary.

Additionally, witnesses are needed if the order is drawn up in emergency circumstances. Because the document is drawn up outside the notary’s office and is written in simple written form.

Important! Heirs cannot be brought in as witnesses.

Is it possible to change the contents of a will?

The testator can make changes to the text of the order or cancel it throughout his life.

Procedure:

1. The testator should contact a notary and voice his decision.
2. If a will needs to be revoked, the citizen must make a corresponding order.
3. To make changes to the previous edition, it is enough to make a new declaration of will.

Important! If the composition of the heirs in the text has changed, then the previous edition becomes completely invalid. The unaffected part of the order remains in effect.

The concept of an inheritance queue

It is not necessary to make a will in favor of the only heir. To receive an inheritance, you only need to confirm the degree of relationship and have the documents required for this. Writing a declaration of will in this case is simply pointless, because all property will definitely go to a single bidder.

It is worth thinking about drawing up a will if there are several successors or it is intended to transfer all the property to other persons other than relatives, or the distribution of shares will be uneven. On the territory of our legal state, inheritance can occur by law or by will. The established sequence plays a key role here.

At the legislative level, heirs are divided into several categories:

• 1st priority – spouses, parents and children. In the absence of a notarized expression of will, each of them can count on inheriting movable and immovable property in equal shares. They must declare their rights within 6 months from the date of the death of the testator. If this is not done, the turn will move to other categories of citizens.
• 2nd – full and half brothers and sisters, grandparents, as well as nephews and nieces by legal representation.
• 3rd – uncles and aunts.
• 4th – great-grandparents.
• 5th - cousins, aunts and uncles, grandchildren or granddaughters.
• 6th - cousins, great-grandchildren, nephews and nieces, uncles and aunts.
• 7th - stepmothers and stepfathers, stepsons and stepdaughters.

Representatives of the second and each subsequent category must declare their rights within 3 months after the refusal or absence of a request from the legal representatives of the first. When writing a will, it is important to keep in mind the persons who have a legal right to a mandatory share (even if they do not appear in it).