The Supreme Court defended the relatives of the deceased debtor

7

The topic of lending quite often intersects with inheritance law. Mortgages and car loans have become more accessible for many citizens. At the same time, mortality statistics show high results. The transfer of property rights to the relatives of a deceased person is accompanied by the acceptance of his debt obligations. Repayment of debt on loans usually occurs at the expense of the inheritance estate. Let's look at how debts are collected from the heirs of a deceased debtor.

Claim of a creditor to a notary against the heirs of the debtor

If the borrower's creditors become aware of his death, they can submit their claims to a notary. Documents are provided in writing at the place of registration of the deceased person.

The main calculation goes to the hereditary mass. Because heirs do not always come into their rights.

Claim of a creditor against a notary

Sample claim from a creditor to a notary

What to do if the debtor’s spouse dies during the bankruptcy procedure?

Anything can happen. Sometimes the debtor's spouse dies during the procedure. In a marriage, jointly acquired property is the common property of the spouses (as a general rule, the husband and wife each own 50%), they can allocate shares, or have common property. In case of bankruptcy, the bankrupt's share is allocated and sold at auction.

If the debtor's spouse dies during bankruptcy proceedings, two options are possible:

1. The spouses have no property to sell. In this case, the death of the bankrupt's spouse will not play a role in the duration of the case itself.
2. The spouses have common property for sale. If a husband and wife bought a car during marriage, for example, it will be sold in bankruptcy. But given the death of the second spouse, perhaps the court will suspend the case. In part, this may happen in connection with the search for heirs of the deceased spouse’s share (if the bankrupt is not an heir, for example, when there was a will).

Will a spouse's property be affected by bankruptcy? Related article

According to the law, spouses are each other's direct heirs in the first place. If the husband dies without leaving a will, the wife inherits all his property. If this happened during the bankruptcy of the spouse, then the inheritance will be included in the bankruptcy estate and sold to pay off creditors.

It is impossible to refuse inheritance in such a situation. If the inheritance was received during an extrajudicial bankruptcy, the debtor is obliged to notify the MFC of an improvement in his financial situation.

When a person inherits the debts of a deceased spouse, he wants to get rid of loans and other obligations. This is possible - you need to file for bankruptcy and get rid of debts according to the law, while maintaining your only apartment.

The procedure for filing claims by creditors of the testator

The application to the notary is usually submitted within 6 months. However, creditors can present their claims to the heirs within the limitation period (clause 59 of the Resolution of the Plenum of the RF Armed Forces No. 29). This legal position was announced by the Supreme Court.

If, within the prescribed period, the heirs declare their rights to the inheritance, the notary must inform them about the existence of debts with the testator. Obligations to creditors arise from the moment the application is submitted to the notary (Article 1153 of the Civil Code of the Russian Federation).

However, interest on the loan is accrued until the opening of the inheritance case. Then the creditor can continue to accrue them after the expiration of the period necessary for accepting the property (clause 61 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 29).

Consequently, the actual collection of debt from the heirs is not carried out immediately.

Options for repaying the debts of the deceased:

1. Renewal of the contract . If desired, the heirs can transfer the loan agreement to themselves.
2. Covering the debt. Pay off the debt in full using your inheritance or your own property. This can be done immediately after the death of the testator or after completing all the necessary documents.
3. Getting insurance. One of the ways to cover obligations is to have an insurance policy in the name of the borrower. If the life of a deceased citizen was insured, and the insured event occurred within the scope of the contract, then the insurer is obliged to pay compensation.

Usually the insurance payment is enough to fully repay the loan. Heirs need to be vigilant and submit a package of documents to the insurance company in a timely manner. In the application for payment of compensation, you will need to indicate the bank account where the funds should be credited.

Expert opinion

Stanislav Evseev

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

The absence of relatives of a deceased person is the basis for opening an inheritance case at the request of creditors. The action is performed after 6 months from the date of death of the debtor.

Debts are repaid through inheritance. As for the amount of debt, it must be confirmed by a court decision. Unauthorized determination of the amount of debt is not permitted. Therefore, the creditor will have to initiate a court hearing and prove its calculations.

However, there is a caveat here. An unpleasant inheritance is considered escheat. Therefore, it goes to the state. The notary must explain to the creditor his right to file property claims against the relevant local authority.

In what order are the requirements presented?

The opinion that obligations pass to the heirs only after six months from the death of the borrower is erroneous. The loan continues to be valid, and if you do not notify the lender about what happened, penalties and late fees will be accrued in the same way. Any of the actual heirs is obliged to provide the creditor with copies of the death certificate, after which the banking organization can suspend the accrual of interest and penalties. If any have already been accrued since the client's death, they must be cancelled. After this, credit obligations are transferred to the one who accepted the open inheritance, that is, received the appropriate certificate. If there are several such people, the debt is divided among them depending on the value of the share of the inheritance they received. Banks do not take into account the age of the heirs and their awareness of the existence of financial obligations.

Inheritance of property on several grounds

If there is a will, the procedure for inheriting property changes slightly:

1. The testator can assign all or part of the property to one or more people.
2. Assets that are not specified in the administrative document are inherited in accordance with the general procedure.

What to do if part of the property is under encumbrance, and the other half of the property is not collateral? It is necessary to proceed from the practical side of the issue. In some cases, creditors will not be able to present their claims to the heirs.

Example. Citizen I. was engaged in small business. He had a tire repair shop. During his lifetime, he made a will in the name of his daughter from a previous marriage. He gave her his 1-room apartment. The housing was rented out for long-term rent to tenants. Citizen I also had a second apartment and a credit car. His family consisted of 3 people. The businessman died suddenly. The relatives submitted documents to the notary in a timely manner. According to the will, the heiress was entitled to a 1-room apartment. The wife owned half of the jointly acquired property. The exception was the testator’s personal apartment, which he assigned to his daughter. The rest of the property is divided between 3 participants. Understanding the situation, the daughter of the deceased citizen renounced her share, which was due to her by law. She only inherited her father's apartment. Half of the spouse's property was allocated from the inheritance. The second part is distributed equally between the testator's wife and his son. Creditors asserted their rights to the collateral up to the amount of the debt. The income from the tire repair shop made it possible to pay off the car loan. Therefore, the son of the deceased citizen filled out all the documents in his name and continued to repay the loan according to the schedule.

Refusal of inheritance and escheat of property

The heirs have the right to refuse the property of the deceased, automatically getting rid of his debts. If the application for refusal indicates a specific person to whom all rights are transferred, then now the above actions must be performed in relation to him. If no one is listed there, then the inheritance goes to the next relatives in line. They are often even more difficult to find than the previous ones. In any case, the system for filing claims and filing lawsuits in court does not change.

If there are no more heirs and the property becomes escheated, then you need to contact local authorities. According to the law, the inheritance goes to them in the absence of other heirs. The system remains the same, only state self-government bodies are indicated as defendants. As practice proves, it is very difficult to get money.

The specifics of payments on loans and other debts largely depend on the existing agreements. Individual conditions may apply in each individual case. We are ready to advise you free of charge and provide answers to any questions you may have. If necessary, assistance from experienced lawyers will be provided to work with heirs, a notary and the court.

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Heirs do not respond to creditors' demands

What to do if the relatives of a deceased person have submitted an application to a notary, but refuse to contact the creditor? The lender can file a claim after the heirs have assumed their rights and completed the appropriate papers.

According to the law, the obligations of the debtor pass to his heirs (Article 1175 of the Civil Code of the Russian Federation). Failure to respond to the creditor's letter is grounds for filing a claim.

Sample claim of a creditor to heirs

Debt collection from the heirs of the deceased

Who is responsible for debts after the death of the debtor? As you know, not only the property of the deceased is inherited, but also his obligations to creditors. Therefore, in the event of the death of the debtor, claims are addressed to his heirs.

Under such circumstances, several scenarios are possible.

Let's say the creditor learns about the death of a citizen a short time after this sad fact.

To recover a monetary debt from a deceased debtor, you must first notify the notary who will handle the inheritance case. You can quickly find out his coordinates at the notary chamber of the region where the deceased most recently lived.

After receiving all the data, it is advisable to address the notary with a notification of the debt. It can also be issued in the form of a claim addressed to an abstract circle of heirs.

Then the notary will notify all applicants for the property of the deceased about the existence of his unfulfilled obligations.

Expert commentary

Kosykh Tatyana Viktorovna

Lawyer, registration number No. 50/8948 in the register of lawyers of the Moscow region.

Ask a question

If the death of the debtor became known after the inheritance was registered, then in any case a claim is filed to collect the debt from the heir. And here there are rules.

Preparation and submission of documents to the court

Sometimes relatives of a deceased person think that the creditor will forget about them or write off the amount of the debt. However, the heirs' refusal to respond to the creditor's demands usually leads to litigation.

If there is written evidence, it will not be difficult for the lender to win the case. It is enough to prepare a claim, pay the state fee and attach a list of necessary documents. The application is submitted to the district court at the place of registration of the defendant.

The statement of claim must contain the following information:

• the name of the court where the case will be heard;
• information about the plaintiff (residence/location address, contact details);
• similar information about the defendant;
• cost of claim;
• document's name;
• essence of the claim;
• reference to the rule of law;
• the plaintiff's final request;
• list of attached documents;
• receipt of payment of state duty;
• date, signature of the plaintiff.

The amount of state duty is calculated based on the stated requirements (Article 333.19 of the Tax Code of the Russian Federation). The larger the claim amount, the higher the tax rate.

Example. The lender gave the borrower a loan secured by a car. The loan amount was 300 thousand rubles. On the day of the citizen’s death, the amount of debt was 200 thousand rubles. The heirs ignored the creditor's demands. Therefore, he was forced to go to court. Calculation of state duty – 5200 (3200 + 2000) rubles. The fixed rate is RUB 3,200. The difference from the minimum threshold is 2000 (100,000 × 1%) rubles. If the claims are satisfied, then the paid state duty is withheld from the defendants in favor of the plaintiff.

Based on the results of the court hearing, the court will make a decision to satisfy the creditor's claims. In such a situation, the heirs are charged not only with the amount of the debt, but also with the amount of state duty and other costs of the creditor. To do this, it is necessary to include the relevant requirements in the statement of claim.

Then the lender will need to take a writ of execution and submit it to the bailiff service. They will open production and begin forced debt collection. The heirs can resolve the issue with the creditor at any stage of judicial or enforcement proceedings.

Sample statement of claim for debt collection

A statement of claim against the inherited property in the absence of another defendant, is this possible?

Lawyer for inheritance cases

Author: Lawyer Klimushkin Vladislav Alexandrovich

The original article was taken here. The article is published with abbreviations

For some reason, there is no information on the Internet about filing a claim against an inheritance, although this topic is relevant for creditors of the deceased testator...

Problems:

1. The number one problem you encounter when drawing up a statement of claim by a creditor of a deceased debtor is the problem of the defendant. Who should be the defendant?

By virtue of Part 3 of Art. 1175 of the Civil Code of the Russian Federation: Creditors of the testator have the right to present their claims to the heirs who accepted the inheritance within the limitation periods established for the relevant claims.

However, finding out who the heir is is a big problem. Notaries do not provide this information, since, by virtue of Art. 1123 of the Civil Code of the Russian Federation governs the secrecy of wills.

By virtue of Art. 5 and art. 6 Fundamentals of legislation on notaries, a notary cannot disclose information about the performance of notarial acts.

By virtue of Article 7 “Confidentiality of Personal Data” of the Federal Law of July 27, 2006 No. 152-FZ “On Personal Data”: Operators and other persons who have access to personal data are obliged not to disclose to third parties or distribute personal data without consent subject of personal data, unless otherwise provided by federal law. At the same time, by virtue of clause 1 of Art. 3 of the same Law, personal data includes any information relating to a directly or indirectly identified or identifiable individual (subject of personal data).

What to do when claims need to be made, but the heirs are unknown?

There is another possibility, by virtue of the same part 3 of Art. 1175 of the Civil Code of the Russian Federation: Before accepting the inheritance, creditors' claims may be presented to the executor of the will or to the inherited property.

The executor of the will is unlikely to be known, since there is the same secrecy of the will and notarial secrecy. About the executor, executor of the will, see Art. 1134 Civil Code of the Russian Federation.

As for the possibility of bringing a claim against inherited property, here one has to deal with a simple misunderstanding, since instead of a “person”, “property” appears in the defendants, and the property is uncertain, because what is included in this property is unknown. Meanwhile, here we have a legal fiction, exactly the same as the concept of “legal entity”. Remember Part 1 of Art. 48 of the Civil Code of the Russian Federation, the concept of “legal entity” has only one physical form - it is separate property.

In practice, we have to face the fact that some legal professionals, including judges, do not understand this fiction and demand that the person be identified. In this case, you should pay attention to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases”:

Paragraph 5 of clause 3 of this Plenum states:

Claims of the testator's creditors, before the heirs accept the inheritance, are filed in court at the place where the inheritance was opened (parts 1 and 2 of Article 30 of the Code of Civil Procedure of the Russian Federation).

Paragraph 6 also states:

The court refuses to accept a statement of claim brought against a deceased citizen, with reference to paragraph 1 of part 1 of Article 134 of the Code of Civil Procedure of the Russian Federation, since only a person with civil and civil procedural legal capacity can be held liable for violation of the rights and legitimate interests of a citizen.

If a civil case on such a statement of claim has been initiated, the proceedings are subject to termination by virtue of paragraph seven of Article 220 of the Code of Civil Procedure of the Russian Federation, indicating the right of the plaintiff to file a claim against the heirs who accepted the inheritance, and before accepting the inheritance - against the executor of the will or to inherited property (clause 3 of Article 1175 of the Civil Code of the Russian Federation).

As you can see, the court must accept a claim with a fictitious defendant - “hereditary property”, but here the court also has an obligation to suspend the proceedings until the heirs are known. During this time, the heirs will have time to receive the property and even sell it at cheap prices. As a result, it turns out that they will pay off some part of the debt, an insignificant one, and the rest of the collection may become futile.

Another related problem is hereditary transmission. By virtue of Part 2 of Art. 1175 of the Civil Code of the Russian Federation: An heir who has accepted an inheritance in the manner of hereditary transmission (Article 1156) is liable to the extent of the value of this inherited property for the debts of the testator to whom this property belonged, and is not liable with this property for the debts of the heir from whom the right to accept was transferred to him inheritance.

Let me remind you that hereditary transmission is when the heir dies without having time to accept the (opened) inheritance due to him. Such an inheritance, let’s say, “in transit” passes through such a deceased heir, without affecting him and without entering into his inheritance mass. Having passed through such a “transit”, this property passes to the next heir, the one who is the heir of the already deceased heir. All this can be represented in the form of a diagram: Deceased testator - deceased heir - living heir of the deceased heir.

From the point of view of the creditor of the deceased heir, an interesting effect arises: this heir could have received the property and paid off with it, but he was unlucky in this “death lottery” and the property passed in “transit” to the next heir, leaving the creditor, which is called “without his nose” . You can imagine what “games” this could lead to in real life.

It is also important to understand that Art. 1175 of the Civil Code of the Russian Federation is broader than the previously existing similar norms of the Civil Code of 1964 (Articles 553 and 554). The heirs who accepted the inheritance are liable for all the debts of the testator, both those that arose during his lifetime and those that, due to the obligation of the testator, will arise in the future, for example, after the death of the testator-debtor, obligations may arise to pay interest on the amount of the debt.

The same applies to obligations, the fulfillment of which is determined by the moment of demand (Article 314 of the Civil Code of the Russian Federation). However, there are obligations that terminate with the death of the debtor, since they are inextricably linked with him, for example, the obligation to pay alimony; such obligations simply terminate by virtue of paragraph. 2 tbsp. 1112 of the Civil Code of the Russian Federation. Obligations that are not civil law are also terminated, for example, the obligation to pay a fine in a case of an administrative offense.

You should also pay attention to the joint and several obligation of the heirs established by Art. 1175 of the Civil Code of the Russian Federation. In principle, it is possible to recover from any of the heirs, but no more than the value of the property passed to the heirs, and then let the heir from whom more was recovered, collect from the others, based on the fact that each heir must be liable within the limits of the value of the property passed to him.

The subtlety is that when filing a claim against inherited property, we cannot indicate in the requirements “to recover jointly”, since we do not know who the heir is. There may be only one heir, or it may even turn out that the property is escheat and another problem will arise here, since the transfer of escheat property has not yet been clearly regulated, however, you need to know that by virtue of Part 1 of Art. 1152 of the Civil Code of the Russian Federation, acceptance of an inheritance is not required for the acquisition of escheated property. Rule Part 1 Art. 1152 of the Civil Code of the Russian Federation allows, in difficult situations, to indicate as a defendant a person who, by virtue of Art. 1151 of the Civil Code of the Russian Federation must accept escheated property, and then in court deal with the presence of heirs.

What is the statute of limitations for filing a claim against a creditor of a deceased debtor?

For some reason, there is an opinion that the creditor must file a claim within the 6-month period for accepting the inheritance. Obviously, this is due to habit, since Art. 553 of the previously in force Civil Code of the RSFSR of 1964 established a six-month deadline for creditors to submit claims for the debts of the testator. Now this rule does not apply.

In paragraph 59 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” it is explained:

The death of the debtor is not a circumstance entailing early fulfillment of his obligations by the heirs. For example, the heir of the debtor under a loan agreement is obliged to return to the creditor the amount of money received by the testator and pay interest on it on time and in the manner prescribed by the loan agreement; the amount of a loan provided to the testator for personal, family, home or other use not related to business activities may be returned by the heir ahead of schedule in full or in parts, subject to notification of this to the creditor at least thirty days before the day of such return, if the loan agreement no shorter notice period has been established; the amount of a loan provided in other cases may be repaid ahead of schedule with the consent of the creditor (Articles 810, 819 of the Civil Code of the Russian Federation).

The limitation periods for the claims of the testator's creditors continue to run in the same order as before the opening of the inheritance (the opening of the inheritance does not interrupt, stop or suspend their flow).

Creditors' claims may be presented during the remainder of the limitation period if this period began to run before the opening of the inheritance.

For creditors' claims for the fulfillment of the testator's obligations, the deadline for fulfillment of which occurred after the opening of the inheritance, the limitation periods are calculated in accordance with the general procedure. For example, when opening an inheritance on May 15, 2012, claims for which a general statute of limitations is established can be presented by creditors to the heirs who accepted the inheritance (before accepting the inheritance - to the executor of the will or to the estate) for obligations with a due date of July 31, 2009 - until July 31, 2012 inclusive; for obligations with a maturity date of July 31, 2012 - until July 31, 2015 inclusive.

When applying the limitation period in relation to the obligations of the deceased, it should be borne in mind that, by virtue of paragraph. 2 hours 3 tbsp. 1175 of the Civil Code of the Russian Federation: When claims are made by creditors of the testator, the limitation period established for the relevant claims is not subject to interruption, suspension or restoration.

This fact creates a danger in situations where the beginning of the limitation period is doubtful, or the creditor believed that such a period was interrupted during the life of the testator-debtor.

Another problem is that the lender may end up with nothing for two reasons:

Firstly , the heirs can accept the property and then transform it, or perform other transactions with it in such a way that it is not possible to establish the market value of the property.

Secondly , it may turn out that by this time other creditors had already received satisfaction at the expense of the debtor’s property and therefore there simply was not enough property for subsequent creditors. In the case of inheritance, the liability of an inheritance works according to the principle “whoever stood up first gets the slippers.” Considering that the creditors' claims are presented within a certain period of time (see paragraph 2 of this article), it is easy to imagine a situation where creditors, whose obligations to fulfill their obligations to them came earlier, literally raked out all the property of the deceased debtor, and creditors with a later fulfillment period were left with nothing. .

What would happen if the debtor was cunning and, even before his death, prepared blank sheets of paper with his signatures, handing them over to his heirs with the words: “In three years I have to repay the bank loan, so make sure that my property ends up in worthy hands before that”? True, most citizens for some reason are confident that a gift agreement is more reliable than a will and prefer to donate property to heirs during their lifetime.

For these reasons, it is advisable for the lender to find some kind of obligation and file a claim as early as possible, for example, an obligation to pay monthly interest on the loan amount. If such an obligation cannot be found, then you can try to simultaneously declare the termination of the contract, at least this will allow, through judicial procedures, to obtain information about the debtor’s property and its value. Even if the court subsequently refuses to terminate the contract, this information will be useful.

When presenting the creditor's claims to the court, it should be borne in mind that there is a possibility that the court will refuse to satisfy the claim due to the fact that the creditor delayed in presenting the claims. In paragraph 3 of paragraph 61 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9, the following explanation is given:

At the same time, having established the fact of abuse of right, for example, in the case of a deliberate, without good reason, long-term failure by a creditor, aware of the death of the testator, to present demands for the fulfillment of obligations arising from the loan agreement concluded by him to the heirs who were not aware of its conclusion, the court, in accordance with paragraph 2 of Article 10 of the Civil Code of the Russian Federation, it refuses to collect the above-mentioned interest for the creditor for the entire period from the date of opening of the inheritance, since the heirs should not be responsible for adverse consequences resulting from dishonest actions on the part of the creditor.

This position in the explanations of the Supreme Court of the Russian Federation seems doubtful and gives rise to the possibility of a voluntaristic approach.

3. How to establish the composition of the property and its market value?

A whole bunch of problems arise here. The creditor knows nothing and is not told anything; there is a secret everywhere, which can only be revealed by going to court. But it is difficult to go to court before the deadline for fulfilling the obligation. In addition, by virtue of Part 3 of Art. 1175 of the Civil Code of the Russian Federation, in the case where a claim is brought against the inherited property, the court suspends consideration of the case until the heirs accept the inheritance or transfer the escheated property in the order of inheritance to the Russian Federation.

Regarding the suspension of proceedings in the case, the Constitutional Court of the Russian Federation spoke out in Resolution No. 5-P of March 1, 2012 “In the case of verifying the constitutionality of the second paragraph of Article 215 and the second paragraph of Article 217 of the Civil Procedure Code of the Russian Federation in connection with complaints from citizens D.V. . Barabash and A.V. Iskhakov."

In this Resolution, the Constitutional Court of the Russian Federation has formed positions by virtue of which constitutional interpretation requires necessarily taking into account all significant legal circumstances when applying a stay of proceedings in a case.

Constitutionally significant principles of ensuring proper judicial protection cannot be violated as a result of the suspension of the proceedings. Adequate right to judicial protection must be ensured in any case.

Since Art. 1175 of the Civil Code of the Russian Federation initially presupposes the need to know both the composition of the inherited property and its value. Proper judicial protection of the rights of the creditor obviously presupposes that this information must be obtained in the interests of the creditor who has applied to the court before the court suspends the proceedings. For this reason, it is necessary to appeal the suspension of proceedings if it violates the creditor’s right to receive the necessary information.

It is unlikely that a notary can identify all the property belonging to the deceased, especially if the deceased was an entrepreneur and owned production facilities. The entrepreneur does not keep complete accounting records and identifying all the property is a big problem.

The Federal Service for State Registration, Cadastre and Cartography can provide information about real estate. Traffic police authorities about vehicles. This is what lies on the surface. However, information about property is not only held by these authorities. Gostekhnadzor bodies have information about special equipment (combines, tractors, graders, etc.). Rostekhnadzor authorities have information about industrially hazardous facilities, for example, tanks for storing fuels and lubricants, industrial refrigeration units, etc. Registration divisions of the Federal Tax Service of the Russian Federation - information about participation in business companies and partnerships; you can also obtain information about certain equipment from the Federal Tax Service, for example, cash registers.

To some extent, information about work equipment can be obtained from workplace certification data, since it indicates the equipment that workers operate with in the workplace. Data on certification of workplaces can be requested from the bodies of the Rostrudinspektsiya and from the independent organization that carried out the certification work.

The problem is also information about bank accounts. Notaries traditionally request information from the Savings Bank of the Russian Federation, however, accounts can also be opened in other banks, and there are many such banks now. I do not know the mechanisms by which it is possible to obtain information about all the bank accounts of the deceased; I believe that such possibilities are absent in the legislation.

In Part 1 of Art. 1175 of the Civil Code of the Russian Federation establishes that each of the heirs is liable for the debts of the testator within the limits of the value of the inherited property transferred to him. By virtue of Art. 7 of the Federal Law of July 29, 1998 No. 135-FZ “On Valuation Activities in the Russian Federation”, the term “value” in this case means market value.

In this regard, paragraph 61 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” explains: The value of the property transferred to the heirs, the limits of which their liability for the debts of the testator is limited, is determined by its market value at the time of opening of the inheritance, regardless of its subsequent change by the time the case is considered by the court.

Thus, it is required to know the market value and not just the market value, but specifically on the day of opening of the inheritance, which often means the use of the so-called “retrospective assessment”, which provides information about the market value for some past period of time or past day.

Naturally, neither the notary nor any other body provides this information, and this is a really big problem. Obviously, in this case the creditor actually becomes obliged to conduct an examination, and the costs of this examination will fall on the heirs. Perhaps, in view of such expenses, it would be better for the heirs to reach an amicable agreement with the creditors?

Subtlety that should be kept in mind: By virtue of Art. 24.15 of the Federal Law of July 29, 1998 No. 135-FZ “On Valuation Activities in the Russian Federation” and clause 3 of the Federal Valuation Standard “Determination of the cadastral value of real estate (FSO No. 4)” (approved by order of the Ministry of Economic Development of the Russian Federation dated 22 October 2010 N 508) cadastral value means the market value of a property determined by mass valuation methods, or, if it is impossible to determine the market value by mass valuation methods, the market value determined individually for a specific property in accordance with the legislation on valuation activities.

For this reason, you can be guided by the cadastral value of real estate. In relation to land plots, in practice this value is higher than that obtained by individual assessment of a specific land plot.

In general, it is advisable to consult with a specialist appraiser if problems arise with the appraisal of a particular object.

By virtue of Art. 1112 of the Civil Code of the Russian Federation: The inheritance includes things and other property that belonged to the testator on the day the inheritance was opened, including property rights and obligations.

Obligations and duties are thus included in the total property mass, forming a liability of the inheritance. In theory, an asset minus a liability should result in the part of the property that the heirs can actually claim. However, as stated above, the rule “first come first hand,” which determines the ability of creditors to collect debts from inherited property, leads to unacceptable inequality among creditors.

The entire fault of the creditor who did not receive satisfaction can only be that his right of claim came last, or after previous claims of other creditors. If the inheritance as a whole is an asset and a liability, then, in theory, it is necessary to consider this entire property complex as a whole, taking into account the requirements of all creditors.

This logic suggests that it may be possible in practice to provide protection for creditors of last resort through the requirement to establish a procedure for the distribution of inherited property.

By virtue of Part 2 of Art. 1174 of the Civil Code of the Russian Federation - claims arising from pre-death care and treatment due to illness, expenses for a decent funeral, protection and management of inheritance, as well as expenses associated with the execution of a will are satisfied first of all. These expenses form a special liability of the inheritance, since they reduce the total value of the property to which creditors can turn their claims.

Here the only help for the creditor is the carelessness of our citizens, who almost never collect and store documents about their expenses. And who can know, when a person is sick and medicines are purchased for him, that these expenses will be near death? Here the legislator’s demands look extremely gloomy, unoptimistic and strange. Although, documents on expenses must always be collected and stored.

The presence of a special liability, so to speak, privileged creditors, suggests that the remaining creditors, in theory, should be in an equal position, which is fully consistent with the equality declared in Part 1 of Art. 1 Civil Code of the Russian Federation. Accordingly, the rule “who gets up first gets the slippers” must somehow be overcome sooner or later.

Reimbursement of expenses established by Art. 1174 of the Civil Code of the Russian Federation, is similar to what happens in bankruptcy, where there are also expenses associated with the bankruptcy itself and these expenses are satisfied first of all. But in bankruptcy, the remaining creditors are in an equal position, and the remaining property of the debtor is distributed proportionally between them.

In the above-mentioned Resolution No. 5-P of March 1, 2012, the Constitutional Court of the Russian Federation indicated the inadmissibility of different application of norms in different processes, civil and arbitration, since this gives rise to unacceptable discrimination in similar cases.

4. Should the claim be submitted to the heirs through a notary before the creditor goes to court?

Article 63 of the Fundamentals of the Legislation of the Russian Federation on Notaries dated February 11, 1993 No. 4462-I establishes: The notary at the place of opening of the inheritance, in accordance with the legislation of the Russian Federation, accepts claims from the testator’s creditors. Claims must be made in writing.

As stated in paragraph 24 of the Methodological Recommendations of the Ministry of Justice of Russia for performing notarial actions, the notary at the place of opening of the inheritance, when accepting claims from the testator’s creditors, brings this to the attention of the heirs in writing or orally, explains the procedure for repaying the debt and suspending the issuance of a certificate of the right to inheritance; a note about the oral explanation is made in the inheritance file signed by the heirs.

It should be borne in mind that the presence of a claim from the testator's creditors does not suspend the issuance of a certificate of inheritance, which the notary must explain to the creditor. Filing a claim is necessary mainly to notify the heirs that the testator has unfulfilled property obligations.

In practice, the legality of filing a claim through a notary is sometimes questioned. Thus, A.E. Samsonova in the magazine “Legal work in a credit organization”, No. 2, April-June 2008, in the article “Collection of debt on loans in the event of the death of the borrower”, placed information that, in the opinion of the Voronezh Notary Chamber , Art. 63 of the Fundamentals of Legislation on Notaries, according to which claims of creditors are accepted by notaries, contradicts Part 3 of the Civil Code of the Russian Federation.

In this regard, the author expressed that measures to search for debtors should be taken by the creditor, and not by the notary, and the provisions of Art. 61 Fundamentals of legislation on notaries on the possibility of public notification by a notary of an opened inheritance are irrelevant. At the same time, the notary chamber of the Voronezh region agreed that the lack of information about the heirs of the debtors deprives the bank of the opportunity to apply to the court to collect the debt. Despite the absence in law of a notary’s obligation to provide information at the request of banks, the Chamber of Notaries believes that in this case one should proceed from the principle of reasonableness and fairness.

Practice, however, shows that a claim against inherited property is accepted and the opinion of the notary chamber of the Voronezh region, as well as the opinion of A.E. Samsonova, was not confirmed. Attached to this article is a version of the statement of claim, which was accepted by the court.

I believe that since the filing of a claim is established by law, in order not to receive a return of the claim or termination of the proceedings due to non-compliance with the pre-trial procedure, it is necessary to file a claim. In addition, when you subsequently go to court, the response to the claim, in which the notary reports that he cannot provide information about the inherited property and the heirs themselves, will justify the need for appropriate requests from the court.

What interim measures should be applied?

Since it would be wrong to claim all the inherited property, and it is also, in theory, impossible to prevent the heirs from exercising their rights in general, for me personally, an interim measure in the form of a seizure of property at the value corresponding to the creditor’s demand seemed correct. However, the court thought otherwise.

By virtue of Part 3 of Art. 1163 of the Civil Code of the Russian Federation, the issuance of a certificate of the right to inheritance is suspended by a court decision, as well as in the presence of a conceived but not yet born heir. Although this refers to a “court decision” and not a determination, in paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” it was explained: When considering disputes about inheritance, the court in in accordance with paragraph 3 of Article 1163 of the Civil Code of the Russian Federation, has the right to resolve the issue of suspending the issuance of a certificate of the right to inheritance in the manner prescribed for taking measures to secure a claim (Articles 139, 140 of the Civil Procedure Code of the Russian Federation).

In principle, the use of such an interim measure against a creditor’s claim is logical. It turns out that the court suspends not only the proceedings in the case, but also the issuance of the certificate to the heirs, and a corresponding request from the court is sent to the notary. After this, the notary, having determined the circle of heirs and the composition of the property, informs the court. The court resumes proceedings in the case against specific defendants, and only then the interim measure is lifted when the creditor’s claims are satisfied by the court and through enforcement proceedings.

However, the problem of possible squandering of property by heirs remains unresolved; apparently, arrest is a more effective interim measure.

The claim was filed, but the heirs never filed an application to accept the inheritance?

There are different ways of abuse by heirs in order to avoid the demands of creditors: heirs can refuse the inheritance in favor of other heirs, they can delay the period of entry into the inheritance, actually accept the inheritance, distribute the inherited property to their benefit, etc.

These abuses can be applied both in relation to inherited property and in relation to heirs who have suddenly become rich and are now able to answer for their obligations. The latter exposes another problem: the rule “who gets up first is the first to go” is subject to expansion, since in addition to the testator’s creditors, the property can also go to the creditors of the heir himself.

It is quite logical that the heirs who actually accepted the inheritance are also liable for the debts of the testator. In paragraph 3 of paragraph 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 it is explained: Heirs who have committed actions indicating the actual acceptance of the inheritance are liable for the debts of the testator within the value of all inherited property due to them.

However, the fact of acceptance of the inheritance must also be proven, and this, naturally, will be difficult. There is another possibility. Paragraph 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 provides an interesting explanation that makes it possible to combat such abuses:

When considering cases of collection of the testator's debts, the court may resolve the issues of recognizing the heirs as having accepted the inheritance , determining the composition of the inherited property and its value, within the limits of which the testator's debts passed to the heirs, collecting the amount of debt from the heirs within the limits of the value of the inherited property transferred to each of them, and etc.

Thus, you can immediately make a demand to recognize the heirs as having accepted the inheritance and this will remove many problems.

7. How is interest calculated on the debt amount?

There are features of calculating interest on the amount of debt. In the said Resolution of the Plenum No. 9, in paragraph 2, paragraph 61, the Supreme Court of the Russian Federation explained that the accrual of interest may be interrupted during the acceptance of the inheritance:

Interest payable in accordance with Article 395 of the Civil Code of the Russian Federation is charged for failure to fulfill a monetary obligation by the testator on the day of opening of the inheritance, and after the opening of the inheritance for failure to fulfill a monetary obligation by the heir, within the meaning of paragraph 1 of Article 401 of the Civil Code of the Russian Federation, after the expiration of the time required for acceptance inheritance (purchase of escheated property).

In which court should the claim be filed?

A claim against inherited property is filed in court at the place where the inheritance was opened. However, claims regarding immovable property located abroad are exempt from this rule. Paragraph 3 of Plenum Resolution No. 9 states:

Claims of the testator's creditors, before the heirs accept the inheritance, are filed in court at the place where the inheritance was opened (parts 1 and 2 of Article 30 of the Code of Civil Procedure of the Russian Federation). Claims related to rights to real estate located abroad are resolved according to the law of the country where this property is located.

The place of opening of the inheritance is determined according to the rules of Art. 1115 of the Civil Code of the Russian Federation: The place of opening of the inheritance is the last place of residence of the testator (Article 20). If the last place of residence of the testator who owned property on the territory of the Russian Federation is unknown or is located outside its borders, the place of opening of the inheritance in the Russian Federation is recognized as the location of such inherited property.

If such inherited property is located in different places, the place of opening of the inheritance is the location of the immovable property or the most valuable part of the immovable property included in it, and in the absence of immovable property, the location of the movable property or its most valuable part. The value of property is determined based on its market value.

The last place of residence of the testator may not be known to the creditor. I believe that there is nothing wrong with this. By virtue of Part 1 of Art. 29 of the Code of Civil Procedure of the Russian Federation: A claim against a defendant whose place of residence is unknown or who does not have a place of residence in the Russian Federation may be brought to court at the location of his property or at his last known place of residence in the Russian Federation.

When determining a different place of residence, the court may transfer the case to another court.

Conclusion:

It is possible to bring a claim against inherited property, and this is good news. Something else is upsetting. They say that inheritance law reflects the entire law, just as the entire ocean is reflected in a drop of water. This effect is multifaceted; it is associated with such features of inheritance law as elasticity (the ability of inheritance to absorb many, many relationships and facts) and transborderness (the ability of inheritance to overcome the boundaries and obstacles of different legal systems).

This effect also has historical roots, since the law itself largely grew out of inheritance law, which was one of the most stable and understandable customs. The inheritance was brought to life in very, very ancient times, it is connected with the simple need for the survival of the clan and tribe, determined by the surrounding living conditions, the attitude of a collective of people still unable to resist the forces of nature to this nature. Gradually, inheritance gave rise to property rights, and then this gave rise to other legal institutions.

However, I do not like the modern reflection of law in inheritance law. The stability and sustainability of civil circulation is clearly questioned. It turns out that it is not profitable to be elderly, since in this case it is clearly not profitable to deal with you, there are a lot of “buts” that need to be solved and may arise. Modern life requires faster and faster solutions, and getting stuck in problems is extremely undesirable. If you happen to be a long-lived “ji”, it is undesirable to enter into long-term civil legal relations with you, it is undesirable for you to lend, issue loans, entrust property, etc. and so on.

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Hello! My name is Anatoly Antonov, I am a lawyer and the head of the Antonov and Partners law office.

If you need to receive an inheritance, before contacting a notary or lawyer, carefully study the information on my website.

Ignorance of the current legislation entails missing the deadline for accepting an inheritance and is often the main reason for the loss of the right to an opened inheritance even among close relatives. Heirs miss deadlines for entering into inheritance, file useless lawsuits in court and, as a rule, waste time and money. To avoid this, I specially created this resource, where I tried to talk about this procedure as clearly and completely as possible.

Looking for where to get information on inheritance? Need answers to questions? Do you need legal advice regarding inheritance? Just dial a phone number in Samara and get an answer to your inheritance question!

Useful articles about inheritance:

Inheritance by transmission

Obligations to creditors remain with all heirs, regardless of the method of accepting the inheritance. If the inheritance of the assets of the deceased occurs by way of transmission, then the successor is liable for the debts of the deceased person on an equal basis with other persons. However, he is not liable with the property of the testator for the debts of the deceased heir.

The rule does not apply to property that was left directly after the deceased heir. Here the obligations are fulfilled on a general basis.

If the amount of debt left by the deceased heir is greater than the value of his property, then his relatives may refuse the inheritance. By law, the claimant can accept the property of the testator and abandon the assets of the deceased heir. To do this, you need to submit 2 different applications to the notary.

Property in bankruptcy after the death of the debtor

The bankruptcy estate includes all the property of the deceased person. But with some exceptions:

• exclude the apartment of the deceased, which is the only housing for the heirs;
• personal items, awards and orders are not for sale.

When the property from the bankruptcy estate is sold, the manager begins calculations. First of all they pay:

• current payments;
• remuneration of the financial manager - 7%;
• legal expenses, costs of storage, valuation, transportation of objects of the bankruptcy estate.

Next - payments according to the order established by law. If there was a child support debt, it will be closed first. Banks, microfinance organizations, collectors, tax authorities, housing and communal services and other legal entities fall into third place, and money is given to them in proportion to the share of the claim in the register.

The benefit for the heirs is that after the procedure, debts are written off completely and irrevocably, even to those creditors who were not included in the register and did not participate in the case. If a microfinance organization or collectors, or perhaps an old friend of a deceased relative, did not have time to participate in the bankruptcy, then they lost the right to collect. Late creditors cannot make claims later. Everything has been written off, the inheritance has been cleared of debt.

Sometimes the procedure is completed before the inheritance is accepted. In this case, the financial manager transfers information about the remaining property to the notary. This property will be passed on to the heirs.

Heirs for whom the deceased's property is their only home are protected by law. They can go bankrupt themselves or carry out the bankruptcy of the deceased: one way or another, they are left with housing.

Waiver of debts of the testator

If the heirs do not want to contact the testator's creditors, then they can renounce their property rights. It is enough to contact a notary within 6 months after the death of a loved one and submit a corresponding application.

If none of the relatives takes over their rights, then the property is considered escheat and goes to the state. Creditors will be able to present their claims to the beneficiary.

The heirs are released from the debt obligations of the deceased relative. The exception is a guarantee. In some cases, the guarantor is liable until the loan obligations are fully fulfilled or the estate is sold.

How can you take your money from your heirs?

To collect a debt, regardless of whether it is due or not, you must begin to act immediately after receiving information about the death of the borrower. Most problems arise in the initial stages. For example, finding heirs can be extremely difficult.

Procedure

• Determine the list of heirs.
• Make a claim.
• Send it to a notary.
• After 6 months from the date of death of the debtor, send the claim to the heirs.
• If ignored: file a statement of claim.
• Pay the state fee.
• Submit an application to the court.
• If they ignore the decision, get a writ of execution.
• Send him to the executive service.
• Monitor its work until the debt is fully repaid.

Search for heirs

You need to act immediately after the death of the debtor. It is necessary to contact the notary who is in charge of the inheritance case and ask for a list of heirs on the basis that the deceased owed money. You need to provide:

• Passport or other document confirming the identity of the creditor.
• Loan agreement or receipt.

The problem is that finding the right notary can be almost impossible. Only the heirs know where exactly they go to obtain a certificate of inheritance. And the creditor can only submit a request to the territorial notary chamber with a request to indicate which of the notaries is dealing with this issue.

The second and more significant problem is the lack of information. The notary is not required to provide information about heirs. Usually they agree to a meeting, but they may also refer to the secrecy of the will (if there is one) or simply refuse to give out information without the consent of the heirs themselves.

In this situation, you can only draw up a claim (see below) and submit it to a notary. The latter, due to his duty of service, is obliged to notify the heirs about it. And here the third problem arises, because the heirs are not obliged to somehow contact the creditor. They can simply take the document into account and that's it. By law, they must pay, but for this they still need to be found.

If it is known which property will be inherited and the deadline for the next loan payment has already passed, the creditor has every right to file a claim in court for the inherited property. It should be taken into account that if 6 months have already passed since the death of the original borrower, then the claim will no longer be filed against the inherited property, but against a specific debtor.

If the heirs are not known, it makes sense to look for information about them at the place of residence of the deceased. For example, ask your neighbors.

Example : The deceased Ivan Ivanovich owed Konstantin 100 thousand rubles. This is confirmed by a receipt. After Ivan’s death, Konstantin is forced to look for a notary who will deal with inheritance matters (and for this, the heirs must first contact him) and make a claim to him. The notary refuses to provide information about the heirs, and they also do not respond to the claim. If by the end of the inheritance period (6 months) there is no reaction from the heirs, you can file a lawsuit.

Making a claim

There are two types of claims. One is presented to the notary so that he passes on the information to the heirs. It is relevant in the first six months after the death of the debtor. The second is issued directly to the heirs after 6 months. In any case, this document must contain:

• The date the debt arose.
• Under what circumstances did this happen?
• The amount of debt at the time of drawing up the document.

It is recommended to attach a copy of the promissory note or loan agreement. If, in the case of a notary, a document can be submitted officially, then when sending claims to heirs, it is recommended to use notification letters. This will confirm the fact that the creditor first tried to get the money without legal proceedings.

Drawing up a statement of claim

When drawing up a claim, you must indicate the court to which the appeal is made, the defendants in the case, the essence of the claim and the amount to be recovered. Since it can be difficult to find all the heirs, to begin with it is enough to indicate at least those that are known. Changes, if necessary, can be made during the hearing. The claim must be accompanied by documents confirming the plaintiff’s claims: a loan agreement or a receipt.

A copy of the application with attachments must be made for each defendant.

State duty

When filing a claim in court, the creditor is required to pay a state fee. Considering the fact that its requirements can be specified in monetary terms, when calculating the state duty, one should be guided by subparagraph 1, paragraph 1, article 333.19 of the Tax Code of the Russian Federation:

When calculating, it is not the total amount of the claim that is taken into account, but its size above the previous limit.

Example : If a creditor wants to receive 15 thousand, then the entire amount will be taken into account. If the requirements are set for an amount of 80 thousand, then only the amount above the previous limit (20 thousand) is used for calculation. That is, 60 thousand rubles. In the first case, the state duty will be 4% of 15 thousand = 600 rubles. In the second case, the state duty is 3% of 60 thousand + 800 rubles = 2600 rubles.

For what obligations are heirs not liable?

If the testator committed an administrative offense, caused harm to a person’s health, or paid alimony to young children, then the heirs are not liable for such obligations of the deceased citizen.

However, this refers to future payments, not current debt. For example, if enforcement proceedings for alimony have been opened, and a debt has accumulated for several months, then it will need to be repaid. No accruals are made after the death of the testator.

Example. The plaintiff filed a claim against the heirs for the collection of arrears of alimony in the interests of the testator's minor child. The court satisfied the plaintiff's demands. He motivated his decision by the fact that the debt arose during the life of the deceased citizen. Consequently, the obligation to repay the debt falls on the heirs. In addition, the heirs received the apartment after the death of the testator (Determination of the Samara Regional Court dated November 8, 2010, case No. 33-11255).

What you need to know when filing a claim to collect a debt from an heir

What to do if the debtor died? Before you receive a debt from the heirs of a deceased debtor, you need to know the circle of people who are the receivers. So when a wife formalizes an inheritance after the death of her husband, then the debts also pass to her.

When the circle of receivers is known, you can start preparing a claim. All heirs will appear as defendants in accordance with the accepted shares of the deceased’s property. In this case, a claim can be brought at the place of residence of one of them.

It may happen that at the time of the debtor’s death, the period for fulfillment of obligations is not determined.

The creditor must send each of the heirs a demand for repayment of the debt in an amount proportional to the part of the registered property. Such written request must be executed within seven days.

When filing a lawsuit to collect a debt from your heirs, you must not forget about the statute of limitations. After all, the transfer of obligations to the heirs of the deceased does not stop its flow. Therefore, the risk of missing deadlines also cannot be discounted.

There are cases when the death of the debtor occurred after the start of the trial. Then you should file a petition to replace the party in the process, and change your claims taking into account the number of heirs.

Expert commentary

Kosykh Tatyana Viktorovna

Lawyer, registration number No. 50/8948 in the register of lawyers of the Moscow region.

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In such a situation, the court will suspend the case, and the dispute will be considered on its merits only after the completion of the inheritance registration.