5. Opening an inheritance

Inheritance legal relations (that is, the right to inherit property) appear only upon the opening of an inheritance . After this, the heirs can either take advantage of the opportunity of succession or refuse the intended share of the property.

The opening of an inheritance is inextricably linked with a specific time and place within which this fact occurs.

The composition and size of the property subject to inheritance depend on the time and place of opening of the inheritance; terms of acceptance/renunciation of inheritance rights; the time allowed for creditors to make claims; the moment when the heirs acquire ownership rights; date of issue of the certificate of succession.

Successors are recognized not only by persons who survived until the time of entry into inheritance rights, but also by those who were alive on the day of opening of the inheritance , as well as those who were conceived but not born at that time. Therefore, the date of opening of the inheritance may influence the number of heirs.

The distribution of property will be carried out according to the laws of the country where the inheritance was opened.

Issues of opening an inheritance are regulated by three articles of the Civil Code of the Russian Federation: Art. 1113-1115. To acquire the right to property, heirs should contact a notary; if there are controversial issues, they should go to court.

The concept of opening an inheritance

The concept of inheritance is defined as the sum of all rights to the property of a deceased citizen and his obligations, passing to the heirs. The Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) devoted a chapter to the procedure for transferring rights and obligations from the deceased to the heirs. In it, the legislator enshrines the concept of inheritance, the grounds for the emergence of the right to inherited property, legal facts entailing significant consequences, property that is recognized and considered as an inheritance mass and which testators can receive by inheritance, the procedure for obtaining and registering property rights in the order inheritance, as well as documents that must be provided in cases of various disputes related to inheritance, including when establishing the place of opening of the inheritance.

The opening of an inheritance is a legal fact, a procedure according to which persons can declare rights to a citizen’s property. The transfer of rights from the testator to the heirs is preceded by the death of the citizen. The death of a citizen is confirmed by a death certificate. The basis for issuing a certificate is a medical certificate of death, which states a significant fact - the date of death.

A death certificate is a document with which the inheritance case begins with a notary and from the moment of its issuance the entire procedure for registering an inheritance is linked.

A citizen who does not show up at his place of residence for a long period of time may be declared dead by the court. In this case, the date of death of the citizen is considered to be the date the decision enters into force.

From the moment of death of a citizen, the Civil Code of the Russian Federation determines the time of opening of the inheritance. The moment of opening the inheritance and the time of opening the inheritance are identical concepts. It is on the day of opening of the inheritance that the legal successors have the right to inheritance and it is from this day that the inheritance procedure begins. If the heir dies after the opening of the inheritance, the right to inherit his share passes to his heirs.

What can be obtained

Heirs can receive absolutely any property of the deceased, unless its circulation is prohibited or limited.

For example, inheriting weapons is somewhat difficult, since the heir must have permission to store and use it. If he does not receive it, he will be able to sell it through specialized stores.

Also, all heirs receive the debts of the deceased. Creditors can claim the debt from any of the heirs, but only within the limits of his share.

How to open and accept an inheritance

The opening and acceptance of the inheritance occurs in the following order: The heirs, having learned about the opening of the inheritance, i.e. about the death of a citizen, in order to formalize rights in accordance with the law of the Russian Federation, they turn to a notary by writing a statement that expresses consent to accept the inheritance. The application form is developed by the notary independently, and its form is given to the heir to fill out. The application is recognized as a fact of legal significance, confirming the will of the heir to consent to receive the inheritance. The absence of such an expression of will entails consequences in the form of a notary’s refusal to take action to issue a certificate.

An heir who permanently resides with the owner of the property until the day of his death is considered to have actually accepted the inheritance. To register the rights, he needs to obtain a certificate of the right to inheritance from a notary within 6 months from the date of opening of the inheritance. As a basis for proving the fact of acceptance of the inheritance, a certificate of residence or registration at the place of establishment of the inheritance case may be submitted.

Documents to confirm the fact are individual in each case and the notary makes a decision in each case separately. In addition, heirs who have paid the debts of the testator, received funds for him, preserved or protected the inherited property, or entered into management or ownership of the inherited property may be recognized as having actually entered into the inheritance. If the notary refuses to recognize the applicant as an heir, the fact of acceptance of the inheritance may be challenged in court.

What laws are responsible

The opening of an inheritance case is regulated, first of all, by the Civil Code of Russia. It resolves general issues of inheritance, which is important for the entire inheritance case, and not just for its opening. Next, you should pay attention to the Civil Procedure Code, since with its help you can find out the main points of the judicial process if there is a need to protect rights in this way.

Despite the fact that the inheritance tax was abolished long ago, the obligation to pay the fee remained. To do this, it is worth paying attention to the norms of the Tax Code of the Russian Federation, which can determine the fee not only for entering into an inheritance, but also when going to court.

The norms of the family code can also help resolve the situation, as they will help resolve issues of degrees of relationship.

Materials from judicial practice are also important. They allow you to assess the judicial position on specific issues and find out the prospects of the case. However, finding the right practice is quite difficult. If possible, it is worth using the legal systems Consultant+ or Guarantor.

Opening an inheritance case is the first thing the heirs need to do as part of a complex inheritance process. All further actions depend precisely on such a concept as discovery, which marks the beginning of the process, the first step necessary to obtain evidence. Next, the heirs formalize their property rights and become full owners.

Is there a deadline for accepting an inheritance?

According to the law, a period is a certain period of time during which certain actions must be performed. In the inheritance procedure, the term disciplines the participants in the relationship, provides guarantees of the inviolability of property rights, and its importance is important. Article 1154 of the Civil Code of the Russian Federation indicates that an inheritance is accepted within 6 months from the date of opening of the inheritance, which is counted from the date of death of the person. The notary accepts the application expressing the will of the heir during this period. Acceptance of the inheritance in fact occurs within the same period, and from the day the inheritance is opened, the heir must perform actions that indicate the acceptance of property from the deceased.

It is believed that such a period is sufficient for the heirs of the deceased citizen to decide whether to receive the inheritance or refuse it. An application submitted after the deadline has expired is not recognized and does not confirm the fact of acceptance of the inheritance. To protect rights in such a situation, the heir must file a claim in court. If during the proceedings it is recognized that the deadline was missed for a good reason and there are documents confirming this circumstance, the state body will restore the deadline by decision.

How much does registration cost?

The fact of opening an inheritance does not imply any financial costs on the part of the heirs. But further, in the process of accepting the inheritance, the heir will still be forced to spend some money.

Firstly, it is payment of the duty. Its size depends on the degree of relationship between the deceased and the heir.

The first two stages pay three tenths of a percent of the assessed value of the property (or the value, in accordance with other documents), and the rest will have to pay exactly twice as much.

The maximum amount of the fee also directly depends on the order of inheritance. The first two will pay a maximum of one hundred thousand rubles, the rest - a million.

Inheritance tax is not currently paid. Previously, until 2006, it was mandatory.

It will also be necessary to pay for the services of a notary, that is, his technical and consulting work. Such work will cost about several thousand rubles.

Read about the inheritance of credit obligations in the article “Can a loan be inherited?” You can find out about alimony payments and inheritance here.

How to determine the place of opening of the inheritance

According to the Civil Code of the Russian Federation, the place where the inheritance is opened coincides with the residential address of the deceased citizen or, in his absence, the location of the largest share of the property. In other words, the place where the inheritance is opened is the fact of the testator’s residence at a certain address or the fact of the location of the property. Documents confirming the residence of the deceased and the place of opening of the inheritance are submitted simultaneously with the time of filing the application for acceptance of the inheritance.

If the place of opening of the inheritance cannot be identified, citizens have the right to go to court by writing an application to establish the place of opening of the inheritance.

The meaning and concept of place, opening of inheritance is recognized in that the heirs can apply for the acceptance and issuance of a certificate from one notary whose notary office is located in the same district.

When resolving disagreements about establishing the place of opening of the inheritance, the court will be interested in the location of the testator’s property and what documents confirm this. The fact that all heirs apply to one office where the notary is located contributes to the optimal protection of the rights of all heirs.

Package of documents

To register an inheritance, the heir must provide the notary with the following documents:

About the identity (that is, passport or other document).
A certificate that can confirm the fact of death (or a corresponding judicial act).
Papers about relationship with the deceased.
Documents for property objects.
Any document confirming the fact of residence of the deceased at a specific address.
Will, if present.
Other documents required by the notary.

What types of inheritance are there?

According to the Civil Code of the Russian Federation, there are two types of inheritance:

in law;
by will.

According to the law, property is inherited for which there was no order from the deceased citizen. Heirs by law inherit property according to the order of which there are eight in the Russian Federation. The heirs of the corresponding line are called upon to inherit. If there are no heirs in the corresponding line, heirs in the next line are called upon to inherit. The fact of acceptance of the inheritance is confirmed by the will of the successor in the form of filing an application accepted by a notary. The opening of an inheritance, the procedure for its acceptance, the grounds for receipt, the procedure for formalizing and registering rights are the same for both inheritance by law and inheritance by will. The documents that need to be submitted to confirm the property rights of the testator do not depend on the type of inheritance. When inheriting both by law and by will, the place of opening of the inheritance is also the last place of residence of the deceased.

Inheritance by will is carried out if there is an order from the owner regarding the fate of the property on the day of death. The opening of an inheritance, both by will and by law, arises from the date of death of the testator. When accepting an application, the notary first checks the existence of the fact of inheritance under a will. The deadline for accepting an inheritance both by law and by will is the same.

Types of entry into inheritance rights

In accordance with the Civil Code of Russia, you can enter into an inheritance in two ways - according to a will or by law.

The main method by which the owner disposes of acquired property is a will. The legislator regulates that the mass of inheritance includes the rights to finances that a person owned during his lifetime. At the same time, the hereditary mass does not include what is an integral part of a person’s personality. For example, arrears in alimony payments, compensation for damage, etc. If they are included in the will, the heir has the right not to accept them.

Important: The legal successor of the testator can be either an individual or a legal entity, incl. state.

If, when inheriting under a will, the circle of persons is not limited, then when inheriting rights under the law, yes. Thus, in the Civil Code of Russia, Chapter No. 63 (Articles No. 1141-1145 and No. 1148) it is indicated that a person’s acquired property after his death and in the absence of a will will be distributed among relatives according to priority.

Structurally it looks like this:

I – immediate relatives (spouses, parents or children of the deceased citizen).
II – brother, sister, grandmothers and grandfather of the deceased. Both full-born and non-full-born are taken into account.
III – aunt, uncle, nephews, etc.

If the legal successors of the above degrees are absent or have written a testamentary refusal, then subsequent orders come into force.

In a situation where a citizen has drawn up a will in which compulsory heirs do not appear, the order of priority does not apply.

Further, the article provides information about when and where people enter into inheritance.

What documents are needed to register rights?

In the Russian Federation, to confirm the existence of the right to inheritance and register rights to it, the notary is provided with the following documents:

application for acceptance of inheritance;
a certificate from the place of residence of the testator, if the inheritance case has not previously been opened by other heirs;
documents that prove the identity of the heir;
death certificate, if the inheritance case has not previously been opened by other heirs;
documents confirming the testator's rights to property.

After filing an application for inheritance, an application for issuance of a certificate of inheritance is submitted. Documents are provided in originals. From all of the above, it follows that the opening of an inheritance occurs at the time of the citizen’s death. A properly established fact of death is recognized as the basis for opening an inheritance. The fact of declaring a citizen dead in court entails the same legal consequences as the fact of death established by a doctor.

The concept of inheritance is the transfer of inherited property.

Legally significant facts of death, acceptance of inheritance, the presence of documented rights to the property of the testator in legal practice are recognized as the basis for the transfer of rights.

Author of the article

Who has the right

Any person included in the will or who is an heir by law can open an inheritance. One condition is that the person must not be recognized as an unworthy heir.

It turns out that any heir has the right to receive an inheritance, regardless of the grounds of inheritance. If inherited by law, then the right is received by the heirs of a certain line, if there are no heirs of higher lines.

When can you claim your rights to inheritance? The answer is presented in the article “What date is considered the day of opening of the inheritance?”

What constitutes an escheat inheritance can be found out here.

The importance of establishing a place

The legislative body clearly defines the meaning of the category “opening of inheritance” - legal actions aimed at the implementation by heirs of the rights that have arisen regarding the inheritance left after the death of an individual. The heirs should decide whether to accept the inheritance property or refuse it within the six-month period provided for registration of the inheritance case after the moment of opening, that is, after the calendar day of the person’s death, confirmed by a death certificate or a court decision that has entered into legal force (if the person is declared dead through the court).

Applicants for receiving money and things remaining from the deceased apply to a notary at the established place of opening of the inheritance (according to the territorial district) for him to carry out the relevant notarial actions related to the opening and management of the inheritance case. The basis for including a person in the circle of potential inheritance recipients can be considered an application for acceptance of inherited property or refusal of it.

According to Art. 20 of the Civil Code of the Russian Federation, the last place of residence (confirmed by registration) of the deceased individual will become the place of opening of the inheritance. The rule works even if a person did not live in the place where his heart stopped beating. In this case, the fact of registration is extremely important. Potential heirs confirm this by providing a notary certificate. The place of residence of various categories of individuals may be recognized as:

the place where the person lives permanently or most of the time;
for minors (under 14 years of age) – place of permanent residence of legal representatives (parents or guardians);
due to the lack of information about the real place of residence - the premises in which the largest (most valuable) share of the property belonging to the deceased was found.

If a resident of the Russian Federation died while on a trip abroad, the place of opening of the inheritance at the legislative level is recognized as his last place of residence (stay) in Russia.

There are cases when it is not possible to determine the place of residence of a deceased citizen or he is located outside the state, while owning property on the territory of the Russian Federation. Then the place of opening of the inheritance is determined by the location of such property, if it is located in different places - where there is real estate or, in its absence, the most valuable (based on market value) part of the movable hereditary property.

Inherited property can be valued not only in monetary (material) terms, but also represent cultural value.

Role and actions of a notary

It is mandatory to contact a notary when drawing up a will. The issue is regulated by Art. 1125 of the Civil Code of the Russian Federation. This process is quite complex and therefore requires specialist knowledge. The notary must help describe all the property and distribute it among the heirs so that in the future there will be no problems with distribution. After drawing up a will, the testator can again contact a specialist in order to change the conditions for the transfer of the inheritance. Art. 63.2 of the Fundamentals of the Legislation of the Russian Federation “On Notaries” describes all actions of a notary in the presence of a will.

The next work of a specialist in a case begins after the death of a person. The role of the notary is to start the process after he receives the death certificate of a citizen. The notary is obliged to read out the text of the will, notify all heirs, and resolve documentary issues. When he settles all the details, the property can be transferred.

If there is no will initially or is revoked for any reason, then the notary is obliged to conduct the case from the very beginning. First of all, his duty is to open a case immediately after the death of a person, and then inform all relatives of the deceased. Next, he is required to collect a package of documents for all the property of the deceased. The last stage in the case, the notary must resolve inheritance disputes and distribute shares in order of priority in accordance with Art. 63 Civil Code of the Russian Federation.

How to find a notary dealing with inheritance matters

There are often situations when the legal heirs do not have information about where to find a notary who should handle a specific inheritance case (Article 1115 of the Civil Code of the Russian Federation).

If such circumstances arise, a possible option would be to indicate the address of the required notary in two ways:

Seek help from any notary office in the city, where a notary can tell you who to contact based on information about the testator.
Contact the Notary Chamber of the locality for help. This authority, which plays a major role in relation to all practicing notaries who carry out their activities within the boundaries of a given territory. There they will be able to tell who the notary is who is obliged to deal with a specific inheritance matter.

Among the powers vested in a notary are the following:

Acceptance of statements regarding acceptance or refusal of inheritance.
Acceptance of claims from the testator's creditors.
Taking measures regarding the protection of inherited property, etc.

Thus, having decided on a notary whose authority includes the management of your particular inheritance case, you need to write and submit an application, which is considered the basis for entering into an inheritance.

The procedure for opening an inheritance with a notary

The opening of an inheritance should be considered a special legal state, the occurrence of which “triggers” the procedure for registering inheritance rights. Without opening an inheritance, none of the heirs can receive the property rights due to them . Based on the provisions of Art. 1153 of the Civil Code, the opening of an inheritance involves a visit by the heir to a notary and going through a step-by-step procedure.

According to Art. 1153 of the Civil Code, only the notary whose office is located at the place where the inheritance was opened can open an inheritance, i.e. in the county of the testator's last place of residence. The inheritance case in relation to one testator can be conducted exclusively by one notary, which should be taken into account if there are several heirs.

Thus, all heirs must contact one notary at the place where the inheritance was opened . In this case, they will need to go through a step-by-step procedure, each stage of which should be considered separately.

Nuances

The main nuance of opening an inheritance is the timing. If they are missed, it is worth filing a lawsuit in accordance with Art. 1155 of the Civil Code of the Russian Federation. There is a possibility that the deadline will be extended:

for 6 months if the first heir was removed;
for 3 months if the share is transferred after the refusal of one of the heirs.

If there is no information about the existence of a will, then you should find out about it from a notary. It often happens that the heirs simply do not know about its existence.

If necessary, the court is authorized to challenge an open inheritance. As a result, the entry period may be extended and the plaintiff's demands may be satisfied.

In what cases should you go to court?

Registration of inheritance cases occurs at the location of the inherited property only in the case when it is impossible to determine the actual place of residence of the testator.

If the fact is that the place of residence of the testator is known to interested parties, but due to certain reasons this causes difficulties in terms of documentary confirmation, the heirs need to establish this fact by going to court. That is, to determine the place of opening of the inheritance in documents.

Consideration of cases regarding the establishment of the fact of the place of opening of the inheritance takes place through the court in a special proceeding.

Based on the provisions set out in Article 263 of the Code of Civil Procedure of the Russian Federation, cases in this category are resolved according to the general rules of claim proceedings. However, taking into account the features that are provided for in the articles of the Code of Civil Procedure of the Russian Federation.

The court considers cases regarding the establishment of the fact of acceptance of the inheritance, as well as the place of opening of the inheritance (clause 9, clause 2, article 264 of the Code of Civil Procedure of the Russian Federation). From the content of clause 1 of Article 20 of the Civil Code of the Russian Federation, the place of residence should be recognized as the place where the citizen permanently or primarily resides. This norm, as well as the provisions of Article 1115 of the Civil Code of the Russian Federation, serve to determine the necessary information regarding the place of opening of the inheritance.

The process of considering cases within the framework of special proceedings, as a general rule, occurs with the participation of applicants, as well as in the presence of other interested parties.

In a situation where, during the filing of an application or when considering a case in a special proceeding, it is established that there is another dispute about the law that is within the jurisdiction of the court, the latter makes a decision regarding the suspension of the consideration of the case on the day of consideration.

At the same time, the content of the definition reflects the right of the applicant, as well as other interested parties, regarding their legal opportunity to resolve the dispute by filing an appropriate claim. It is important to do this within the time period allotted for this by law and preferably not on the last day.

The court establishes facts that have legal significance only in the absence of another possibility for the interested party to obtain appropriate documentation that serves as evidence of the facts, as well as in the absence of the possibility of restoring documents that have been lost.

An application regarding this issue should be filed with the court at the place of residence of the applicant on any day. The exception is cases regarding the establishment of the fact of ownership or use of real estate. Thus, it should be submitted to the court at the location of such real estate.

The application that must be submitted to the court in order to resolve the issue must contain:

The purpose of the filing, that is, why the applicant needs to establish this fact;
An evidence base that would serve as confirmation of the absence of another opportunity to obtain the appropriate documents or the impossibility of restoring lost documents.

The court decision made in the case after considering the issue regarding establishing the place of opening of the inheritance will serve as a document confirming a fact that has legal significance.

And in relation to the fact that is subject to registration, it will be the basis for registration.

However, the court decision will not replace documents, the issuance of which is within the competence of the registration authorities. Thus, the court’s decision does not relieve interested parties from the obligation to obtain title documents, which can also be done at any day. That is, everything is confirmed exclusively by documentation.