Inheritance by right of representation under Article 1146 of the Civil Code of the Russian Federation

1. The share of an heir by law who died before the opening of the inheritance or at the same time as the testator (clause 2 of Article 1114) passes by right of representation to his corresponding descendants in the cases provided for in clause 2 of Article 1142, clause 2 of Article 1143 and clause 2 of Article 1144 of this Code , and is divided equally between them.

2. The descendants of an heir by law who was deprived of the inheritance by the testator shall not inherit by right of representation (clause 1 of Article 1119).

3. The descendants of an heir who died before the opening of the inheritance or at the same time as the testator (clause 2 of Article 1114) and who would not have the right to inherit in accordance with clause 1 of Article 1117 of this Code shall not inherit by right of representation.

• Article 1145. Heirs of subsequent orders
• Article 1147. Inheritance by adopted children and adoptive parents

The essence of the concept and the order of inheritance

Inheritance by right of representation according to the norms of Article 1146 of the Civil Code of the Russian Federation is the procedure for calling heirs to take possession of an array of property that belonged to the deceased by right of private property, instead of their parent, who would have received the right to own property by law if he had been alive at the time opening of inheritance.

According to the provisions of Article 1113 of the Civil Code of the Russian Federation, the time for opening an inheritance is the date of death of the former owner. And place is the address where the person was at the time of death or the address where he lived or was recently located. For example, at home, in the hospital, in transport, at the market, on vacation, on a trip, at work, etc.

In accordance with the provisions of the current legislation, children of representatives of 1-3 orders of law may be called upon to inherit by nomination.

The norms of Article 1142 of the Civil Code are considered to be of the first priority:

• children;
• spouse;
• parents.

The opportunity to introduce their deceased relatives is given to the grandchildren of the deceased.

Representatives of the second priority for taking legal possession of the property of the deceased (Article 1143 of the Civil Code of the Russian Federation) are brothers, sisters, grandparents. Within this queue, the children of brothers and sisters have the right to representation under the Civil Code of the Russian Federation. That is, the nephews of the deceased on both lines.

According to the provisions of Article 1144 of the Civil Code of the Russian Federation, in the third order , and by right of representation, cousins ​​can receive their share.

The heirs receive the share of property that their parent would have had if he had been alive at the time of opening the inheritance case in the notary's office at the place of residence of the deceased.

Right of representation and hereditary transmission

In legal theory, there are two similar concepts, the essence of which is the possibility of taking possession of the hereditary property of an applicant who replaces the main heir in turn due to his death - hereditary transmission and the right of representation.

Transmission and the right of representation in inheritance

During the distribution of property after the death of a citizen, the most difficult and unexpected situations may arise that create obstacles to the acceptance of the inheritance. The biggest of them is the death of one of the heirs at the moment when he had already begun to receive the inheritance.

Especially for such emergency cases, there are two procedures designed to rectify the situation - conducting hereditary transmission and registering inheritance by right of representation. These are the ones that will be discussed in this article.

Right of representation

First, let's talk about receiving property by right of representation.

This procedure makes it possible to replace the deceased heir in the distribution of property with his relative who is included in one of the first three lines of inheritance.

It is worth noting that the right of representation is valid only if the distribution procedure according to the will has not been carried out, and the heir himself has not had time to register his right since the inheritance has not yet been opened.

How the View Works

Let us consider the mechanism of the right of representation in more detail. All information about the right of representation is contained in Article 1146 of the Civil Code of the Russian Federation. This article is quite short and requires some clarification. Let us consider the main features of the right of representation:

• It comes into force only if the heir died at the same time as the testator or during the period when the testator had already died, but none of his representatives opened an inheritance case with the notary;
• The share of the inheritance is transferred to the recipient by right of representation in full. In this case, the heir by right of representation also receives the inheritance that he receives from the deceased heir. As a result, two fees are paid, the amount of which may differ depending on the order of priority;
• When using inheritance by will, the right of representation is not used - it is replaced by other rules;
• previously declared unworthy by the court cannot take possession of property by right of representation
• If the heir voluntarily renounced his share and died, then his heirs will not be able to exercise the right of representation to receive the property.

Thus, we can draw a general conclusion: a citizen who enjoys the right of representation simply takes on the role of the deceased and is his kind of deputy, while receiving the property due to him in accordance with the legal order.

Hereditary transmission

Now let's consider another method of transferring property from a deceased heir, namely hereditary transmission. At first glance, it is completely identical to inheritance using the right of representation. However, there are still differences.

First, and most importantly, the right of ownership of property by transmission applies in the case of registration of inheritance under a will. In this case, the testator is free to establish the order of transmission himself, changing it at his own discretion, as well as adding and excluding heirs.

The second important difference is that you can use the right of transmission until the entry of the inheritance, and not just before its opening.

How does it work?

The mechanism of hereditary transmission is fully described in Article 1156 of the Civil Code of the Russian Federation. It very briefly describes the most basic definitions, and therefore we will analyze it in more detail. So, hereditary transmission takes place in accordance with the following rules:

• The share received by the transmitter (heir by right of transmission) goes to him in full;
• In order for the transmitter to receive his part of the property, two packages of documents will be required - his own, giving him the right to inherit, and a package of documents for the original recipient of the property - the transmitter;
• It is possible to enter into the right to inheritance by right of transmission either with or without a will. In this case, the text of the will must clearly indicate the presence of recipients by right of transmission or indicate alternative heirs to the property;
• It is possible to enter into an inheritance by transmission only if the original recipient died after the opening of the inheritance, but before the completion of the inheritance case;
• Hereditary transmission does not allow citizens who do not have the right to inheritance to receive property. For example, citizens recognized as unworthy heirs or indicated in the will among those who cannot receive property under any circumstances.

Difference between procedures

Let's look at the difference between these two procedures. It's actually not too big since they both serve the same purpose and only differ in some key aspects.

So, for example, transmission can be used if the original testator had a valid will. Additionally, the transmission provides a little more wiggle room as it is easier to start.

However, the heir by right of transmission will need an order of magnitude more documents to carry out all legal procedures, and in general he may encounter difficulties if the will had some nuances that prohibit transmission or change its order. That is, we can say with confidence that the representation is more stable and convenient, but at the same time it is much more difficult to obtain the right to it.

Deprivation of the right to property and exclusion from inheritance

The norms of the current Russian legislation in terms of deprivation or exclusion from inheritance, as well as recognition of the heir as unworthy, apply to situations where it is possible to take possession of property by right of representation.

According to the provisions of Article 1119 of the Civil Code of the Russian Federation, the testator has the right to draw up a notarized document in which he deprives his legal heirs (one or more) of the right to receive property There is no need to explain the reason for such a will, since in Russia the principle of freedom of will applies.

Unworthy heirs

Some citizens are excluded from sharing the estate due to their illegal or immoral actions.

According to the provisions of Article 1117 of the Civil Code of the Russian Federation, the following are recognized as unworthy and do not inherit by right of representation:

1. illegally contributing to their calling to inheritance. For example, they gave the property owner psychotropic substances, killed him, forced him to commit suicide, exerted significant psychological pressure, etc.;
2. similarly acting in favor of other heirs;
3. who have been deprived of parental rights;
4. failed to fulfill obligations towards the testator. For example, the obligation to provide all possible assistance with household services or other situations specified by law or a maintenance agreement.

The fact of deprivation of the right to receive property from the deceased can be challenged in court. For a positive decision, you will need to prove the unfoundedness of the accusations. Or moral pressure on the deceased at the time of signing the document.

Current restrictions on rights

Some rights of representatives of the 1st, 2nd and 3rd stages are not transferred to this category of heirs. Grandchildren and other categories of citizens who take possession of property instead of their parents due to their death will not be able to receive a mandatory share in the inheritance.

In addition, these citizens will not have privileges in the inheritance process:

• indivisible thing;
• household items from the deceased’s apartment;
• corporate rights;
• rights to land plots.

The main reason for establishing restrictions is related to the special status of inheritance by right of representation. The norms are prescribed in civil legislation, so it will not be possible to challenge them in court.

Who are the legal heirs?

Persons who are considered heirs by virtue of legal norms are determined by the Civil Code of the Russian Federation. As a rule, these are persons who have a blood connection with the deceased person. All relatives have their own order of calling to inherit property.

Obtaining an inheritance mass is possible in the following cases:

1. There are no persons recognized as heirs of the previous order;
2. Persons who are heirs of previous orders are deprived of the right to inherit based on a court decision;
3. Persons recognized as heirs are excluded from receiving a share of the property mass;
4. Heirs of previous orders, designated as such by law, are removed by the will of the testator, indicated in the testamentary document;
5. All heirs renounced the inheritance.

Those closest to the deceased person will inherit first. The law includes:

1. Spouses;
2. Children, including those adopted in the prescribed manner;
3. Parents.

Please note that a child conceived during the life of the testator and born after his death is also recognized as an heir.

In the absence of all the above persons, the second order of heirs is called upon to inherit.

The legislator included the following:

1. Brothers, sisters (regardless of whether they are full-blooded or not);
2. Grandparents, both on the lines of both parents.

If these persons are not among the relatives, then the next category of heirs receives the right to receive the inheritance. These include:

1. Uncles and aunts of the deceased person, it does not matter whether they are full blood or not in relation to the parents of the deceased;
2. When implementing the order of representation, the rights of inheritance can be received by the children of these persons in the event of their death before the inheritance case is opened.

If the deceased person did not have these relatives, then the next-ranking heirs can claim rights to the inheritance mass. They are great-grandparents.

I would like to draw attention to the fact that the legislator established the order of priority for a reason. I separate the order by the level of family ties, that is, the number of births

In fifth order, the following categories of relatives will inherit:

1. Cousins ​​or granddaughters;
2. Great grandparents.

How is the inheritance divided if one of the heirs dies?

How to prepare a statement of claim to establish a relationship with the deceased, read here.

Who will become the heir to the deceased’s apartment, read the link:

Heirs of the sixth order are the children of cousins' grandchildren and granddaughters, cousins' nephews or nieces, cousins' uncles and aunts.

The last heirs to be called are:

1. Stepmother or stepfather;
2. Stepsons, stepdaughters

Persons who do not have blood ties with the testator, but have the status of a dependent, may be called upon to receive property transferred by inheritance. This means that these persons during the life of the testator were completely dependent on him financially. Such persons are subject to one very important requirement: before the death of the testator, they must have lived together with him for at least a year.

In addition to these persons, the law defines heirs who must receive part of the inheritance.

These include children, spouses, and parents who are unable to work or have not reached the age of majority.

Document submission process

Documents are submitted to the notary office located at the place of residence of the deceased. It is important to submit documents within the period established by law, that is, 6 months from the date of opening the inheritance case. In this case, it is possible to apply to both public and private offices.

The applicant provides the following package of documents confirming the fact of relationship and the right to receive property:

1. death certificate of the testator;
2. a document confirming the birth of the heir who would have taken possession if he had been alive;
3. passport;
4. title documents for real estate and other objects (things) that a citizen wishes to receive into his ownership;
5. a certificate from the housing office or management company at the place of residence of the deceased;
6. extract from the register of ownership of real estate;
7. heir identification code.

In some cases, the notary does not accept the submitted documents. The revealed fact of falsification of documents, the notary’s doubts about the relevance of the right of representation, the need to provide additional supporting documents are the main reasons that give the notary the right not to accept the application.

If the notary refuses to accept the documents, the applicant files a claim in court to appeal the disagreement. But to do this, you need to receive a written document from the official.

Who does not inherit by right of representation

Recipients whose parent:

1. He was a beneficiary of a will. Norms Art. 1146 of the Civil Code of the Russian Federation does not apply to inheritance by order.
2. Disinherited. The law gives the owner the opportunity to independently choose the recipient. If a citizen wishes to disinherit any relative, he can simply draw up a will.
3. Died at the same time as the testator. The Civil Code prohibits the registration of inheritance for citizens who died at the same time (on the same day). The main reason for the ban is the difficulty in determining the moment of death. This way, it is possible to avoid disputes about which of the deceased is the testator and who is the legal successor.
4. He was recognized as an unworthy heir. The descendants of unworthy recipients are the children of citizens who acted unlawfully towards the testator and took actions aimed at increasing their share of the inheritance. These facts must be established in court. An unworthy successor is deprived of the opportunity to transfer the inheritance share to children.
5. He was the heir of the 4th – 7th line. The possibility of transferring inheritance to the children of the deceased successor is provided for a limited number of heirs. Distant, nominal relatives and dependents cannot transfer their share of the inheritance until legal rights to it are registered.

The descendants of unworthy recipients are the children of citizens who acted unlawfully towards the testator and took actions aimed at increasing their share of the inheritance. These facts must be established in court.

Typical mistakes in judicial practice

Often grandchildren try to receive property from their grandparents, even if their parents are alive at the time the inheritance is opened . Notaries do not accept such documents. Because they reveal the lack of registration of the death of the applicant according to the law (mother or father).

The granddaughter of her late grandmother filed a claim regarding the inheritance of a private house. The grandmother's brothers laid claim to the property. A positive decision in favor of the granddaughter is described in the Review of the Krasnoyarsk Regional Court dated April 24, 2006 “Review of judicial practice on the application of legislation when considering cases on disputes arising from inheritance law . The citizen's parents were alive at the time of her death, but lived separately. The granddaughter was always next to her grandmother. This became the basis for the court to grant her the opportunity to inherit, bypassing her parents.

The right to represent an inheritance under the Civil Code of the Russian Federation is an opportunity to protect guarantees for grandchildren and other relatives to receive the property of a deceased citizen. But only in the event of the death of their parents, who could claim to take possession of the property.

The order of distribution of shares

By right of representation, one can only claim that part of the property that was intended for the deceased heir . For example, after the death of a father, three sons can inherit the apartment of their grandfather, who is the testator. The property will be distributed among the applicants in equal shares.

Please note that this order does not affect the share of other direct heirs. If in the situation described above the deceased father had a brother, then the inheritance of the apartment will be carried out as follows: the father’s brother receives half, because he is the grandfather’s own son. The remainder will be divided equally among the sons of the deceased heir.

Can grandchildren claim their grandmother's inheritance while their parents are alive?

The law determines that the grandchildren of the testator , as well as his nephews and cousins, are not direct heirs by law, that is, they cannot inherit on their own. This means that the grandson cannot independently claim the grandmother’s inheritance on the same basis as his mother.

Although grandchildren are included in the first line of inheritance, the law allows them to inherit only by right of representation , the main condition of which is the death of the direct heir by law, i.e. their parent, before or simultaneously with the testator.

Only then can the descendants of this heir claim the inheritance by right of representation.

A noteworthy feature of the law is that grandchildren, as well as nephews and cousins ​​of the testator, cannot inherit after the deceased testator, even if their parents did not accept the inheritance after the death of the testator. The fact is that their right of inheritance is derived from the right of inheritance by their parents, i.e. if the children of the testator, being alive on the day of opening of the inheritance, did not accept the inheritance, then the grandchildren do not have the right to this property.

In this case, the inheritance will pass to other heirs according to the general rules of inheritance by law.

Let's take an example:

After the death of the testator, there were three legal heirs, two daughters and one son. The testator’s daughters declared their rights to the inheritance by promptly contacting a notary, but the son did not apply to the notary to formalize his inheritance rights within the 6-month period established by law, and also did not take actions indicating the actual acceptance of the inheritance, that is, he does not lay claim to his father’s inheritance . In this case, the children of such an heir cannot claim the inheritance of their grandfather, despite the fact that they are his natural grandchildren. The entire inheritance will be distributed between the testator's two daughters. And if the testator had no daughters, that is, there would only be a son who did not accept the inheritance, then the right of inheritance would pass to the second-order heirs, but not to the grandchildren.

Hereditary transmission

Hereditary transmission is a similar concept, but has its own characteristics.
It is regulated by Art. 1156 Civil Code. In essence, hereditary transmission is a transfer of the right to accept an inheritance. In this case, the successors do not receive a mandatory share. Reference! The property that remains from the heir himself does not fall under the transmission, and is accepted in accordance with the general procedure.

Civil law stipulates that this concept does not apply if the heir and testator died on the same day, regardless of the time of death.

The following conditions apply to hereditary transmission:

• an inheritance case was opened;
• the successor (transmitter) did not have time to enter into the inheritance.

If there is a will, then the property goes to the persons indicated in it. Transmission is possible if the document is missing. In this case, inheritance occurs according to the law in order of priority. In the case where there are no transmitters, shares are allocated only to direct heirs.

Thus, if the transmitter dies before entering into the inheritance, then it passes to the relatives.

In the case when he managed to register the property, it is considered his personal property and is accepted on a general basis.

The law specifies relatives who can claim property in order of priority. If a citizen has left a will, then it also applies to inheritance transmission.

The following conditions apply to the procedure:

• The transmitter can claim property only if, at the time of the transmitter’s death, he has opened an inheritance case.
• The successor will not be able to receive more than the heir was entitled to.
• If there are several transmitters, then the property is divided in equal parts.

It is necessary to visit a notary within six months after the death of the transmitter to register the share. If the deadline is missed, you will need to restore it in court and prove the existence of a good reason. The successor may renounce his part, but only in favor of the persons specified in the will or those who inherit by law (Article 1158 of the Civil Code of the Russian Federation).