Unequal shares of heirs under a will
In his testamentary document, the testator has the right to indicate absolutely any size of share for each of the heirs. For example, one room in a privatized apartment is enough for one person, two are enough for another. The same situation may arise with privatized or non-privatized land. Some heirs may receive a much larger portion of the property than others. That is why the legislation of the Russian Federation provides for the sale of one’s own inherited share.
Absolutely every heir has the right to sell his share. The exact amount of the cost should reflect the current condition of the property, as well as other nuances. But other heirs will never force the share to be forcibly sold to them by their mere desire, since this would be illegal. This applies to both a privatized apartment and any other inherited property, the sale of which is possible only with the consent of the heir. An interested person can notify the heirs of the sale of his privatized or non-privatized property share personally or through other notifications.
In the inheritance law of the Russian Federation, there is such a thing as an increment of inherited shares. It implies that the share of the fallen heir is added to the existing shares of others. Increment can be carried out both by inheritance by law and by will. In this case, the share of the fallen heir and its increment can also be a share both by law and by will. The increase in the share of a fallen heir is a rather independent legal phenomenon.
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The procedure for paying shares to heirs and its size in an LLC
In the event of the death of a citizen, ownership of the property or its share in the authorized capital is transferred by inheritance to other persons. If the heir formally refuses to receive this share, this entails the company’s obligation to further pay compensation.
The form of compensation also allows for the possibility of compensation with property in the form of dividends.
The share of property in the authorized capital is inherited by one or more heirs, regardless of whether the circle of other participants agrees with this. A ban on this cannot be imposed, since it will be declared invalid.
The sale of one's own share can be carried out at the request of the heir himself. To do this, he makes appropriate representations and demands that the company compensate the property located in the authorized capital and located in the inheritance estate. If the parties do not have any disagreements, you can draw up all the necessary documents and enter into an agreement to compensate for the cost of the share in the authorized capital. If disagreements that cannot be resolved still exist, the final decision will be made by the court.
In addition, the new owner of the organization has the right to pay dividends that were in the authorized capital after the death of the previous shareholder. The right to receive dividends remains with the new heir, since it passes to him by way of succession. Refusal to pay dividends can always be appealed through court.
Main conclusions
The right to an obligatory share in the inheritance of residential real estate is exercised with some specific features. If a conflict arises, the possibility of transferring the disputed part of the real estate to the applicant and the fact of residence in it during the life of the testator are taken into account.
In addition, the property status of the person wishing to receive the obligatory share cannot be discounted. Only with such a set of facts is it possible to make a fair judicial decision.
Author: Oleg Vladimirovich Roslyakov, source sud-isk.ru.
What did the cassation court pay attention to?
First of all, the ruling dated November 5, 2019 No. 5-KG19-181 states that when considering the dispute, Dubova’s arguments that Maltseva never lived in Moscow and has real estate and other property in a completely different region of the Russian Federation were not examined. She needs the disputed share for resale. In addition, the apartment is the only housing for Dubova.
Therefore, the Supreme Court emphasized that a person’s retirement age in itself is not a basis for assigning a compulsory share to him. Previous authorities should have assessed Maltseva’s financial situation. However, this was not done.
In addition, it was not taken into account that Dubova herself is a pensioner and, moreover, a disabled person of group 2. As a result, the case was again sent for retrial to the Perovsky District Court of the capital.
Exclusion of the spousal share from the inheritance estate
The notary who is in charge of the inheritance case can separate the surviving spouse's spousal share from the inherited property and exclude it from the inheritance mass.
The marital share of the surviving spouse is subject to allocation even in the presence of a will. For example, it may happen that all the property acquired during the marriage and registered in the name of the testator was bequeathed to him.
In this case, of course, the spousal share of the surviving spouse is also subject to separation from the estate, since it cannot be bequeathed.
As a general rule, when dividing the jointly acquired property of spouses, their shares in this property are recognized as equal (Article 39 of the Family Code of the Russian Federation), accordingly, the spousal share of the surviving spouse is at least half of the total property.
The notary acts in accordance with the norms of the Fundamentals of Legislation “On Notaries”, according to which, in order to allocate the marital share, the surviving spouse must submit to the notary a corresponding application for the allocation of the marital share from the inheritance.
Accordingly, the heirs of the first stage will divide the remaining part of the property among themselves.
In some cases, other heirs may not agree with the allocation of the marital share to the surviving spouse of the testator.
The classic situation is when during his lifetime the testator was in a registered marriage, but for a long time he did not actually maintain marital relations with his wife, they lived separately, did not have a single budget, and the testator acquired part of the property, including real estate, during this period . Under such circumstances, the heirs of the deceased may challenge the surviving spouse's right to half of the testator's property, which was acquired during the period when the marital relationship between him and his wife was actually terminated.
Consequently, the dispute in this case is subject to resolution by the court, and of course, the heirs will have to present indisputable evidence of their position in court.
The division of the inherited property will be made based on the evidence presented by the parties.
Lawyer (advocate) for inheritance disputes. Tel.+7 (812) 989-47-47 Telephone consultation
Subtleties with real estate
Certain details are spelled out in Part 4 of the article in question. In particular, it deals with restrictions on the exercise of the right to a compulsory share in relation to residential real estate.
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Thus, the chances of an applicant for property are reduced if, unlike other heirs, he did not live in the disputed apartment, house, or room. The lack of ability to transfer an object plays a role.
The financial situation of the person not mentioned in the will is taken into account. Based on the totality of these factors, the court can either reduce the obligatory share or refuse to provide it altogether.
Agreement on the division of inherited property
If there are several heirs, they can enter into an agreement on the division of property received by inheritance.
Before formalizing and signing such a transaction, each of the applicants for the inheritance receives from a notary a certificate confirming the right to the inheritance.
Now the heirs have the right to enter into an amicable agreement on the division of bequeathed property.
It is important to know that only property owned by heirs under the right of common shared ownership can be divided. Before receiving a certificate of inheritance, property can be divided, provided that it does not include real estate.
The agreement may indicate the following points:
- procedure for dividing property;
- funds can be divided after the sale of property;
- After the division of the inheritance, the appointed persons can legally dispose of and use their share.
Information!
If among the heirs there are minors, individuals with limited legal capacity and those who are completely incapacitated, then a transaction on the division of property can be concluded only after obtaining consent from the guardianship and trusteeship authority.
How to reduce the obligatory share in the inheritance
To reduce the mandatory share or waive it, there must be a court decision; this fact is accomplished in the event of an issue related to property. This may apply to an apartment or other residential premises where the heir under the will has lived and lives all the time. There is only one condition: the obligatory heir did not use the specified premises during the life of the testator.
The same can be said about tools and tools of various kinds, workshops that a person used for a long time for the main income and in the will this person is the legal heir. Here, too, it is important that the citizen who should receive the obligatory share has not previously used these premises for a similar purpose.
How will the judge get out of this situation? The decision will be made taking into account the property status of the citizen, who is considered a mandatory heir.
It turns out that with a well-drafted will, you can avoid many difficult situations and significantly simplify the entire process of inheriting property. This will reduce the number of lawsuits, showdowns and division among heirs.
If a violation of the rights of one of the heirs is revealed, then it certainly cannot be avoided without legal proceedings. The help of a competent lawyer should always be present.
How is the inheritance divided between the wife and children after the death of the husband?
The children and spouse of the testator are classified by law as heirs of the first priority, as his closest relatives.
Accordingly, when dividing the inherited property, their shares will be absolutely equal , although in reality it seems that the surviving spouse receives the largest part of the inheritance.
This is due to the spousal share of the surviving spouse.
Let's figure it out.
The property of spouses in a registered marriage, and acquired during this marriage, belongs to both of them equally, that is, it is their common property (Article 256 of the Civil Code of the Russian Federation).
If at the time of the death of one of their spouses all jointly acquired property is distributed between them in equal shares, then no questions arise in the future; only the testator’s share will be included in the estate.
If all jointly acquired property is registered in the name of the testator by the day the inheritance is opened, then the marital share of the surviving spouse must be allocated , and this allocated marital share is not subject to division between the heirs; only the remaining half of the property, and the heirs of the first priority, are included in the category of inheritance , including the surviving spouse himself, inherit it in equal shares.
Thus, half of the property passes to the surviving spouse not by inheritance, but as a marital share .
As we see, there is no deviation from the equality of shares when inheriting by the spouse and children of the testator.
