According to Art. 1114 of the Civil Code of the Russian Federation, the opening of an inheritance occurs from the moment of the death of the testator or declaring him dead on the basis of clause 3 of Art. 45 Civil Code. Property is inherited by will, inheritance contract and by law. In total, the law establishes eight lines of inheritance (Article 1141 of the Civil Code).
First of all, the children, spouse or parents of the deceased claim the inheritance if they were not left with a will with a decision to transfer the property to other persons. The eighth line is formed by disabled dependents.
But how to establish succession in inheritance if the heir also died? The death of the latter could have occurred:
- even before the opening of the inheritance;
- simultaneously with the death of the testator (the concept of “simultaneous” also includes death, the exact moment of which cannot be determined);
- after the opening of the inheritance took place.
According to the law, the deceased at the same time do not inherit each other's property - it passes to the direct descendants of the heir by right of representation.
If the applicant died after the opening of the inheritance, the inheritance will take place according to the right of hereditary transmission.
So, inheritance by right of representation and hereditary transmission - what is the difference? What is the right of representation in an inheritance? How does the right to accept an inheritance transfer? Details below.
The right of representation - when and for whom it works
The right of representation is inheritance not “for oneself,” but instead of a direct heir at law who died before the testator or with him.
For example, instead of a deceased sister, nephews inherit. There is no right of representation for an heir under a will. The table below will tell you in detail about the heirs called by right of representation.
The law (Articles 1117, 1121, 1146 of the Civil Code of the Russian Federation) contains a number of conditions that do not allow the right of representation to begin to work. This:
- deprivation of the inheritance of a deceased heir or his commission of actions entailing recognition as an unworthy heir;
- in the will, another heir was additionally appointed to the deceased heir, who could be called both by law and by will;
- situation with a mandatory share in the inheritance.
Heirs by right of representation - who are they? More details
Restrictions
There are a number of points that exclude PP.
READ ALSO: How to recognize an heir as unworthy - legal grounds and procedure
They include:
- To the personality of PN;
- To PN status.
The first limitation applies to all potential successors without exception.
A person does not inherit:
- deprived of everything by the testator (Article 1119);
- unworthy heir (Article 1117).
The second limitation is established by Art. 1146. The descendants of the one who has been deprived of everything by the testator shall not inherit under the PP. An example would be a situation where a father deprived his son who died before him of everything. – A grandson cannot become a PN.
A variation of the second restriction is the court’s recognition of the PN as unworthy, based on the provisions of Art. 1117. These are people who, with direct intent, made attempts to improve the financial situation (their own or other persons) by accelerating the acquisition of money and things or by increasing the due share. Examples: forgery of a testamentary document, coercion to write it or cancel it.
Thus, an unworthy heir deprives his descendants of ownership of property under the PP.
PNs have their own right to transfer property to them directly after the testator. At the same time, they: are not obliged to pay the debts of the represented N, and cannot claim his obligatory share.
Hereditary transmission as a transfer of the right to accept an inheritance
Unlike the right of representation, hereditary transmission is a method of succession in the event of the death of an heir who did not have time to accept the inheritance. That is, the heir dies after the death of the testator, but before he enters into the inheritance.
So, as a result of the death of a direct heir after the testator and before entering into the inheritance, the following situation arises: at this moment, the testator’s property does not yet belong to the direct heir. Formally, the direct heir cannot transfer this property by inheritance to his heirs, because did not acquire rights to it at the time of death. To deal with the problem, a hereditary transmission was invented.
In this situation, the position of the deceased heir (no matter by law or by will), the transmitter, is occupied by his heirs - the transmitters. These can be heirs by law or, if the deceased heir bequeathed all his property to someone, heirs by will (Clause 1 of Article 1156 of the Civil Code of the Russian Federation).
An example of the transfer of rights to inheritance through hereditary transmission
Family: father - Alexander, who has two adult sons - Boris and Victor. Boris has a wife, Galina, and two sons, Grigory and Semyon. Victor has only a wife, Anna, and they have no children. So that you don’t get confused, let’s present it in the form of a diagram:
Situation: Alexander died without leaving a will. A month later, before he could accept the inheritance from his father, Boris died.
At the time of Alexander's death, he had 2 legal heirs - sons Boris and Victor. Boris died. Thus, half of the father’s property goes to the living son, that is, Victor. The second half is due to Boris, but he can no longer accept the inheritance due to death. Boris's right to an inheritance that has already been formed, but has not yet been accepted, in the order of hereditary transmission passes to his direct heirs by law - his widow and two children in equal shares. Total: 1/2 of the inheritance - to Victor and 1/6 each - to Galina, Grigory and Semyon.
Attention: Boris’s own property, which is not included in the inheritance mass from Alexander, will be inherited separately by Boris’s widow and children.
How does transmission differ from ordinary inheritance?
If the transmitter had his own property, then his heir must separately accept the inheritance in the order of transmission and separately - on a general basis (for each case, a notarial district is independently determined, an application is submitted, the deadline for acceptance is counted, see clause 8.8 of the Methodological Recommendations..., approved. by decision of the FNP Board of March 25, 2019, protocol 03/19, hereinafter referred to as Method Recommendations dated March 25, 2019).
That is, for example, in the order of transmission from your grandfather through your father you got a house, and from your father you got an apartment with a debt for utility bills. If you do not want to pay the debt, then you can refuse your father’s property, which is inherited by law, but accept your grandfather’s property through hereditary transmission. If the father managed to take over the house inherited from his grandfather, he would have to decide whether to accept all the property from debts. or refuse everything. But property by inheritance and by way of transmission are two different inheritance masses, and they are inherited separately.
Important! Acceptance of an inheritance by a deceased heir (no matter whether he wrote a statement at the notary or paid utility bills for the testator’s house) excludes hereditary transmission. In this case, inherited things and rights go to the estate of the deceased heir (clause 4 of Article 1152 of the Civil Code of the Russian Federation).
The death of a transmitter who has not accepted the inheritance is not a basis for further succession. The hereditary transmission allows only one stage.
The Civil Code of the Russian Federation allows from 3 to 6 months for the acceptance of an inheritance by transmitters (in this case, the inheritance must be accepted within a total period of 6 months from the death of the testator, but if less than 3 months remain from such a period, then it is automatically extended to 3).
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.
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The meaning of death on one day for hereditary succession
If the testator and the heir died on the same day, how should the inheritance be formalized after them? In this case, for inheritance by right of representation and hereditary transmission, the date and time of day of the opening of the inheritance is important.
Previously, the Civil Code of the Russian Federation used the concept “day of opening of an inheritance,” which meant the day of the citizen’s death. Therefore, those who died on the same day before 09/01/2016 are considered to have died at the same time (on the same day, local time, see paragraph 16 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On judicial practice in inheritance cases” dated 05/29/2012 No. 9). Accordingly, in such a situation, inheritance in the form of the right of representation is allowed: the descendants of the deceased, at the same time as the testator, will become heirs by right of representation.
From September 1, 2016, the wording “opening day” was changed to “the moment of opening of the inheritance” (Law “On Amendments...” dated March 30, 2016 No. 79-FZ, hereinafter referred to as Law No. 79-FZ). This allows you to compare the time of death using documents on the death of the testator and heir who died on the same day and find out which of them died earlier.
Note! Changing the wording excludes for the descendants of an heir who died on the same day as the testator, but later in time, the possibility of applying the rule on the right of representation.
However, if the exact time of death cannot be determined, deaths on the same day are still considered simultaneous.
For hereditary transmission, the changes introduced by Law No. 79-FZ are also of great importance.
What property is transferred by way of transmission and by right of representation?
Note! Heirs by right of representation receive the property that the deceased heir would have received by law.
According to paragraph 2 of Art. 1141 of the Civil Code of the Russian Federation, heirs by law receive property in equal shares, except for heirs by right of representation. Between them on the basis of paragraph 1 of Art. 1146 of the Civil Code of the Russian Federation, the share entitled to the deceased heir by law is equally divided. Descendants do not have the right to claim a larger share, even if it was specified in the will.
Note! The heirs in the order of hereditary transmission receive the property due to the transmitter by law or by will in full.
The legislation does not contain instructions on the distribution of shares between transmitters. By analogy of the law, the inheritance is divided in equal shares between the transmitters - heirs by law. The determination of shares in the inheritance of transmitters - heirs under a will is carried out in accordance with Art. 1122 of the Civil Code of the Russian Federation.
Important! If the inheritance of the principal or transmitter does not include anything other than an obligatory share in the inherited property, then such a share is not inherited, since the right to receive it is associated with the personality of the citizen (minor or disabled), whose existence it was supposed to ensure (Article 418, 1112, 1149 of the Civil Code of the Russian Federation, paragraph 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in inheritance cases” dated May 29, 2012 No. 9).
You can familiarize yourself with the measures taken to preserve property, as well as the procedure for inheriting certain types of property here:
- Trust management of inherited property;
- Inheritance of cash deposits in the event of the death of the depositor;
- How is a car registered by inheritance with the traffic police?
Important nuances
Note! PNs are considered in the context of a specific queue. This point has practical meaning. So, in a situation where after the death of the testator his brother and granddaughter remain, the property goes to the granddaughter. If it were not indicated in Art. 1142 as PN, then the valuables would go to the brother (2nd point).
Another important point:
- As part of the 1st stage of inheritance, in addition to grandchildren, their descendants (great-grandchildren and great-great-grandchildren, and so on) can also use the inheritance.
- Descendants:
- nephews and nieces;
- cousins and brothers will not be PN of the 2nd and 3rd stages. In addition, they Art. The 1145th are classified as the 5th and 6th stages, respectively.
Art. 1116 explains that not only those people who were already born on the day of the testator’s death can receive money and things. Those who were conceived during his lifetime are also endowed with this opportunity. This provision fully applies to PN. So, if during the life of a woman transferring values, her grandson was conceived, who was born after she or her daughter (the child’s mother) passed away, then he will be PN.
Registration of inheritance by legal successors: specifics
To inherit by right of representation and hereditary transmission, it is necessary to confirm the right to such, which means submitting the following documents to the notary:
- on the family ties of the heir to the testator and the heir to the transmitter - heir by right of representation (Article 72 of the Fundamentals of the Legislation of the Russian Federation on Notaries, approved by the Supreme Court of the Russian Federation on 02/11/1993 No. 4462-1);
- on the right of the transmitter to inheritance under a will;
- about the moments of death of the testator and heir.
To prove kinship, the “Regulations for the performance of notarial acts by notaries...”, approved. By order of the Ministry of Justice of the Russian Federation dated August 30, 2017 No. 156, it is proposed to use civil registry office documents, extracts from registry books, court decisions provided by the heir, information from the Unified State Civil Registry Office register.
