Restoring the deadline for entering into inheritance 2021

Is it possible to accept an inheritance after 6 months?

There are often cases in life when heirs, for one reason or another, still miss the legal deadline for contacting a notary to enter into an inheritance. As a rule, this problem becomes the subject of consideration in court.

There are two ways to accept an inheritance in court after the expiration of the period for its acceptance (depending on the circumstances):

By restoring the deadline for accepting the inheritance
By establishing the fact of acceptance of inheritance

However, the law contains a clause that acceptance of an inheritance after a 6-month period after the death of the testator is possible out of court, but under one condition - the remaining heirs who have already accepted the inheritance must give their written consent to this (Article 1155 of the Civil Code). Code of the Russian Federation).

In this case, judicial restoration of the missed deadline for entering into inheritance will not be required.

The consent of the remaining heirs must be formalized in writing in the presence of a notary who is in charge of the inheritance case. And if the written consents of the heirs are sent to the notary by mail or transmitted through a representative, then the signatures of these heirs must be certified by another notary.

If the specified conditions are met, a person who has missed the deadline for accepting an inheritance may inherit on an equal basis with other heirs.

In this case, the notary cancels previously issued certificates of the right to inheritance, redistributes shares in the inheritance taking into account the newly entered heir, and issues new certificates of the right to inheritance.

How can I recover a missed deadline?

Article 1155 of the Civil Code of the Russian Federation provides for two ways to restore the deadline for accepting an inheritance. The first way: contact other legal successors and try to come to an agreement with them. If there are no disagreements, all heirs submit a written statement of their consent and the new heir who appears will receive his share.

It is not always possible to reach an amicable agreement. The second way is to file a claim in court. And this must be done within six months after the end of the reasons for absence. In court, it is required to provide evidence that demonstrates the valid reasons for missing the deadline.

Missing the deadline for entering into inheritance and the procedure for its restoration

The purpose of this article is to explain the legal procedure for restoring the deadline for accepting an inheritance to persons who missed this deadline.

So, restoration of the deadline for accepting an inheritance in court is required in the following cases:

The heirs who accepted the inheritance (or one of them) do not agree to the heir who missed the deadline accepting the inheritance out of court
The testator has no other heirs
Other heirs did not enter into the inheritance (including due to missing the deadline for accepting the inheritance)

The procedure for judicial restoration of the period for accepting an inheritance is quite complex.

You must take the responsibility to prepare a claim and substantiate your position.

In court, every word said by the plaintiff will matter, every piece of evidence will be carefully evaluated and questioned by other participants in the process, who will also present their arguments and objections regarding the subject of the dispute.

Undoubtedly, the help of a lawyer in such cases is very necessary, and sometimes even invaluable.

The inheritance lawyers of our Center will help you understand all the nuances of your case, competently draw up a claim and competently represent your interests in court.

We employ only practicing lawyers who have extensive experience in handling inheritance disputes in court.

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The case of restoring the missed deadline for accepting an inheritance is considered by the court in the manner of claim proceedings. This is due to the fact that in the case of a claim to inheritance by a person who missed the deadline for accepting the inheritance, the interests of other heirs who accepted the inheritance are affected, which indicates the existence of a dispute about the right.

Consequently, other heirs are brought into the case as defendants, and in their absence - the Interdistrict Inspectorate of the Federal Tax Service of Russia, or the local administration (depending on what kind of real estate is included in the inheritance - an apartment, a house, a land plot), since the Russian The Federation, represented by these government agencies, is a potential heir to the escheated property.

Based on the content of Part 1 of Article 1155 of the Civil Code of the Russian Federation, in order for the court to restore the missed deadline to the heir, he needs to reliably prove one of two circumstances:

The heir did not know and should not have known (could not have known) that the testator had died
The heir missed the deadline for other valid reasons

At the same time, the law establishes a mandatory condition - if the reasons for missing the deadline are proven valid, the deadline for accepting the inheritance can be restored by the court only if the heir goes to court within 6 months from the moment the reasons for which he missed the deadline for accepting the inheritance no longer exist (for example, the heir learned about the death of the testator, treatment ended, etc.).

If the heir misses this deadline, then even if there are the most compelling reasons for missing the deadline for accepting the inheritance, it will not be restored to him, the claim will be denied, and he will lose all rights to the inheritance.

Thus, to satisfy a claim, a combination of two components is necessary:

Whether the heir has valid reasons for missing the deadline for accepting the inheritance
The heir's appeal to the court no later than 6 months from the moment these reasons cease

Valid reasons for missing the deadline for entering into inheritance

Many people wonder what reasons can be considered valid if the legal deadline for accepting an inheritance is missed.

The law does not contain an exhaustive (closed) list of circumstances that can be accepted by the court as valid reasons for missing the deadline for accepting an inheritance.

Explanations on this issue were given by the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 9 of May 29, 2012 “On judicial practice in inheritance cases.”

According to the position of the highest court, among the reasons for missing the deadline for accepting an inheritance, which can be recognized by the court as valid, it is necessary to include precisely the circumstances that are associated with the personality of this heir - illness, illiteracy, helpless state, etc.

At the same time, if we talk about a person’s illness, then we must proceed from the fact that there was some serious illness that did not allow the heir to independently contact a notary and claim his rights to the inheritance.

We are talking specifically about those cases where the heir, due to a serious illness, could not even sign a document (he was in a coma, could not move, underwent long-term rehabilitation after a complex operation, was in a state of short-term mental disorder, etc.), or did not could count on anyone's help.

If the heir, even while being treated in a hospital, due to health reasons had the opportunity to call a notary (including with the help of his relatives and friends) and fill out an application for acceptance of the inheritance (read, sign), followed by sending the application to the notary at the place where the inheritance was opened , then the reason for missing the deadline cannot be considered valid.

In addition, the disease must be of a long-term nature - throughout the entire period of acceptance of the inheritance . Short-term illnesses, even while in hospital, cannot serve as adequate justification for missing this period.

In other words, the plaintiff must prove that during all 6 months he was in such a state that did not allow him to exercise his inheritance rights.

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So, based on the requirements of the law, explanations of the highest court, as well as from the practice of considering cases of this category, we can identify a number of reasons that may form the basis of a claim to restore the period for accepting an inheritance, and be recognized by the court as valid:

The heir did not know about the death of the testator due to the complete lack of communication with him and other common relatives for a long time
The heir did not know where the testator lived, and therefore could not find out about his death
The heir learned about his relationship (or degree of relationship) with the testator after the expiration of the period for accepting the inheritance
The heir did not know about the existence of the testator's will in his favor (in the case of inheritance by will)

The above circumstances, if proven in court, indicate precisely that the heir did not know and should not have known about the death of the testator, according to the wording of the legislator specified in Part 1 of Art. 1155 of the Civil Code of the Russian Federation.

Other valid reasons for which the deadline for accepting an inheritance could objectively be missed include the following circumstances:

Serious illness or helpless condition of the heir during the entire period of acceptance of the inheritance
Illiteracy of the heir. This concept should not be confused with ignorance of laws and regulations, because such a circumstance does not relieve a person from responsibility, and he takes on all the consequences
Incapacity (limited incapacity) of the heir, including his failure to reach the age of majority
The heir is on a long business trip in a remote (hard-to-reach) area, for example, on a scientific expedition, etc.
The presence of extraordinary circumstances that occurred throughout the entire period of acceptance of the inheritance, due to which it was impossible to travel to the place where the inheritance was opened
Staying in another country with the impossibility of traveling to the Russian Federation (problems with visas, etc.)
Other circumstances

What reasons are not valid for missing the deadline for accepting an inheritance?

There are a number of circumstances that the court does not recognize as valid in the case of restoring the period for entering into an inheritance.

For example, contrary to popular belief, including that prevailing among some lawyers, the heir’s lack of information about the composition of the inheritance or its existence in general cannot be accepted by the court as a valid reason for missing the deadline for accepting the inheritance. The Plenum of the RF Armed Forces clearly indicates this in the above-mentioned Resolution of May 29, 2012. No. 9 “On judicial practice in inheritance cases.”

In general, we can identify several circumstances that, in practice, form the basis of claims for restoration of the period for accepting an inheritance, but in law enforcement practice such reasons are not accepted by the courts as valid.

Unexcusable reasons for missing the deadline for accepting an inheritance include the following circumstances:

Short-term health disorder of the heir who missed the deadline
Lack of information from the heir about the existence or composition of the inheritance
Staying outside of Russia, including permanent residence abroad, except in cases where the heir did not know or should (could not) know about the opening of the inheritance, or objectively could not leave the country
Being in prison, except in cases where the heir did not know or should (could not) know about the opening of the inheritance
Ignorance of legislation regarding acceptance of inheritance or deadlines for accepting inheritance

What does judicial practice say?

Despite the apparent clarity of the algorithms for action in the event of missing deadlines for accepting an inheritance, law enforcement practice in this area of legal relations has many aspects. In particular, the Supreme Court of the Russian Federation has repeatedly given explanations to lower courts when it is impossible to restore the deadline for accepting an inheritance.

Thus, according to the Supreme Court of the Russian Federation, ignorance that an inheritance has opened cannot in itself serve as a basis for restoring the missed deadline. The highest court emphasized: the lack of information from the plaintiffs about the death of the testator is not one of the legally significant circumstances with which the law connects the possibility of restoring the term.

If the plaintiffs were not objectively deprived of the opportunity to maintain relations with the testator, to take an interest in his health and fate, then they have no right to apply for restoration of the missed period. Reluctance to maintain family relations with the testator, lack of interest in his life and fate are not classified either by law or by the plenums of the RF Armed Forces as valid reasons for missing the deadline for accepting an inheritance.

This circumstance is subjective in nature and can be overcome “subject to the will of the heirs.”

The heir's ignorance of the opening of the inheritance is applied by the court only in conjunction with the condition that he applied for restoration of the period within 6 months, starting from the moment when the circumstances preventing him from obtaining such information no longer existed.

In addition, the court must have reliable evidence of the fact that the plaintiff really did not know and did not have the opportunity to know about the death of the testator for objective reasons, and was deprived of real conditions for maintaining contact with him, obtaining information about his life and health.

Among the reasons recognized by the court as valid are the following:

Residence of the heir abroad (decision No. 2-60/2019 of March 27, 2019 in case No. 2-60/2019);
Ignorance of legal successors about the availability of an inherited funded part of the insurance pension from the testator (decision No. 2-1516/2019 2-185/2020 of 02/28/2020 in case No. 2-1516/2019);
Inaction of the legal representative, which led to the missed deadline for contacting a notary, due to the impossibility of a minor to independently exercise the right to accept an inheritance within the established period due to his age (decision No. 2-1653/2019 2-202/2020 dated 02.28.2020 on case No. 2-1653/2019);
Waiting for the court decision to declare the testator dead to enter into force (decision No. 2-1348/2020 of February 27, 2020 in case No. 2-4758/2019);
Impossibility of timely application due to health status and old age (decision No. 2-476/2020 of February 27, 2020 in case No. 2-476/2020).

Statement of claim for restoration of the period for entering into inheritance

Jurisdiction

An application to the court to restore the period for entering into inheritance is submitted to the district court at the place of residence of the defendant or one of them (Article 28 of the Code of Civil Procedure of the Russian Federation).

However, if the inheritance, the period for which the plaintiff requests to restore, includes real estate (apartment, house, land), then the claim will be considered by the court at the location of this property according to the rules of procedural legislation on exclusive jurisdiction (Part 1 of Article 30 of the Civil Procedure Code RF)

Contents of the claim

The statement of claim for this inheritance dispute must be filed in full compliance with the requirements of Articles 131-132 of the Code of Civil Procedure of the Russian Federation, which speak about the form, content of the claim, and the documents attached to it.

The application must contain two requirements:

Restoring the deadline for accepting an inheritance
Recognition of ownership of a share in an inheritance

If the claims are satisfied, the court will redistribute shares in the inheritance (if there are other heirs who accepted the inheritance) and recognize for all heirs the right of ownership of the inherited property in accordance with the redistribution.

If a positive court decision is made, the heir does not need to take any additional actions; in particular, it is not necessary to obtain a certificate of the right to inheritance from a notary. A court decision on the redistribution of shares in the inheritance and recognition of ownership of it that has entered into legal force is the basis for registration of property rights by Rosreestr.

State duty

The state duty on an application to restore the period for entering into an inheritance and recognizing the right of ownership of a share in the inheritance is calculated based on the value of that part of the inheritance claimed by the plaintiff. The rules for calculating state duty are given in Article 333.19 of the Tax Code of the Russian Federation.

At the same time, every claim that is present in the pleading part of the claim must be paid with state duty - the requirement to restore the period for accepting the inheritance is paid with state duty as a non-property claim in the amount of 300 rubles, and the requirement to recognize the right of ownership of property - as a property claim, state duty, calculated based on the value of this property.

By adding these two amounts we get the total amount of the state duty.

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