Does a guardian have the right to the inheritance of a minor or incompetent ward?

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There are many nuances in the issue of inheritance. This takes into account the order of inheritance, the composition of applicants and the method of entering into property rights. One of the key points is the degree of relationship. It is not taken into account only if there is a will. The first priority applicants are close relatives of the deceased subject. However, not everyone knows whether guardians are included in this category of legal successors. Let's consider whether the guardian has the right to inherit the ward after his death.

Who is considered a guardian and ward?

Guardianship is established for children aged from birth to 13 years inclusive if their parents are unable or unwilling to care for them. Also, adult citizens who are deprived of legal capacity in court need guardianship. These are individuals who have serious mental disorders and cannot understand the consequences of their actions.

The guardian fully represents the interests of the ward. He carries out transactions on his behalf and accepts inheritance. But rights as a result of his actions arise in the ward.

For example, if a representative enters into an inheritance on behalf of a ward, then the ward acquires ownership of all property.

Guardianship is a form of placement for children aged 14 to 17 years who are left without parental care. And also a way to protect the rights of citizens with limited legal capacity.

The trustee gives the ward consent to conduct transactions, since citizens with limited legal capacity cannot carry them out independently.

Basic Concepts

The current legislation already provides for various situations; all legal norms are described in the legal literature. But in order to understand the intricacies and answer the question of whether guardians can enter into inheritance, you need to be able to use special terms and concepts. Legislatures clearly define whether a will can be rewritten or made in favor of a guardian.

There is also an option when the expression of will was not formalized. In this case, we are talking about accepting the inheritance according to the law. If more applicants are identified, the problems will have to be resolved through the courts. The rights of guardians and wards arise from their legal status. Federal Law FZ-43 (second article) provides that a dependent is a citizen who, even at the age of majority, for objective reasons, is prohibited from:

• to make deals;
• sign legal documents;
• manage your own property.

USEFUL INFORMATION: Determining the joint place of residence of spouses

The prohibition arises from incapacity. A trustee (not necessarily a relative of the ward) is a person who takes responsibility for the dependent and decides all legal aspects for him. And when the latter passes away, disputes most often arise between the applicants. The subject of the dispute is inherited property.

Also included in the number of wards are minor children under 14 years of age. If parents die, the guardian becomes a grandfather, grandmother, aunt, stepfather, brother, sister, etc. The main requirement is the age of majority of the legal successor. There is a special government body that officially confirms the right to guardianship and controls its quality - this is the guardianship and trusteeship service.

Does a guardian have the right to the ward's inheritance by law?

A guardian may be the legal heir of a ward:

1. If he is a relative of the next in line. Often relatives are appointed guardians of minors and incompetents. For children, these are their grandparents, and the care of adult incapacitated citizens is taken over by their parents or brothers and sisters. The law does not prohibit a guardian from inheriting the property of a ward if the basis for the inheritance is a family connection.
2. If at the time of death of the ward, he is his dependent. Often the guardian and ward maintain contact even after the representative ceases to perform his duties. If a disabled guardian lives for at least 12 months with the ward and runs a common household with him, he has the right to inherit as a dependent (Article 1148 of the Civil Code of the Russian Federation).

In 2021, a bill was submitted to the State Duma for consideration, which provided for amendments to the Civil Code of the Russian Federation. The bill proposed to include guardians and trustees in the order of inheritance, along with stepmothers and stepfathers (7th priority). However, the project did not receive sufficient support. Therefore, it has not been accepted until now.

Does an ex-wife have the right to inherit after the death of her ex-husband?

Does a common-law wife have the right to inherit after the death of her common-law husband?

Basics of inheritance law

His heirs, exercising legal powers or guided by a drawn up will, have the right to claim the property of a deceased person.
The law provides for a clear sequence of persons who have the right to act as heirs of the citizen who left this world. These include:

• spouses, parents and children of the testator;
• brothers and sisters, grandparents;
• aunts and uncles of the deceased person;
• great-grandparents;
• grandchildren of siblings;
• great-grandchildren of brothers and sisters;
• children of the legal spouse or official husband (wife) of the legal parent.

It is important to know! A mandatory requirement for entering into inheritance rights is the presence of an official document confirming the existence of a family relationship. The presence of a civil marriage between cohabitants is not the basis for legal succession.

The reflected order may change significantly based on the last will of the testator. The latest law gives the right to dispose of personal property at his own discretion, including transferring it to any stranger, including those living abroad.

In what cases is inheritance by will possible?

A guardian may be an heir of a minor ward under a will if the ward:

• reached the age of majority;
• was not declared incompetent;
• executed a declaration of will in the name of his former representative.

In accordance with Art. 1118 of the Civil Code of the Russian Federation, a will can only be drawn up by a fully capable citizen, therefore, during the period when a guardian or trustee is fulfilling their duties, a will cannot be drawn up.

It is possible to receive an inheritance from an incapacitated ward by expression of will only if the ward has executed a will:

• being mentally healthy;
• before being declared legally incompetent.

Reference! Recognizing a citizen as incompetent does not entail invalidation of the will. An exception is the situation if, at the time of execution of the document, the owner of the property was no longer aware of the consequences of the actions or was under the influence of potent medications.

Principles of inheritance of property by a guardian after the death of the ward

This means that the will drawn up by the ward will be obviously invalid. It is void in its essence and cannot entail legal consequences. Moreover, the insignificance of the document is so obvious that it does not require proof. In fact, such a will has no value, being an ordinary paper.

But in this case, the presence of close kinship and the absence of relatives from closer groups must coincide. If there are no such circumstances, then the assets will be received by other relatives. And you won’t be able to claim them using guardianship.

Is the ward entitled to the guardian's inheritance?

The ward has the right to inherit from the guardian as a dependent. Art. 1148 of the Civil Code of the Russian Federation establishes that persons who were dependent on the deceased inherit a share in the property, along with any succession.

A minor or disabled ward who was supported by a citizen for 12 months before the death of the testator can be recognized as a dependent.

However, the ward himself, due to lack of full legal capacity, cannot declare his rights to the notary. Therefore, the authority to enter into inheritance is transferred to the guardianship and trusteeship body, or to a new guardian/trustee.

In accordance with Art. 1149 of the Civil Code of the Russian Federation, the ward may well claim a share in the inheritance after the death of the guardian, even if there is a will. A ward who has been a dependent for at least 12 months has the right to a compulsory share. The mandatory share is ½ of the share due to the dependent by law.

If the ward was a relative of the trustee, then he can claim the right to the property if at the time of the death of the testator he no longer lived with him. For example, an incompetent citizen lives in his own apartment or a minor ward receives education in another city.

If the ward is not a relative, then in order to obtain rights to a share in the property, he must permanently reside together in the territory with the testator for at least 12 months and run a joint household.

Inheritance of property of a ward

The procedure for entering into inheritance is determined by law.

Algorithm of actions of applicants

After receiving an extract from the Unified State Register of Real Estate, ownership passes to the heir. After which he can sell, donate or bequeath the property to third parties.

Should a guardian accept an inheritance due to a ward?

The guardian and trustee have no rights to the property of the wards. Therefore, if the ward has rights to inheritance, and a representative on his behalf enters into rights, the right of ownership arises in the ward.

In accordance with Art. 37 of the Civil Code of the Russian Federation, representatives cannot dispose of the inheritance of the ward. The inherited property of a ward can be sold, rented out or donated only with the consent of the guardianship and trusteeship authority.

Separately, it is necessary to consider the situation when the ward receives the right to property from his relatives. Since he does not have legal capacity, he cannot independently contact a notary and register ownership. A representative must do this for him.

But the law does not oblige the guardian to register an inheritance for the ward. Although the guardianship department may insist on registration of rights, you must remember:

• the representative must protect the property interests of the minor;
• the guardianship department has the right to hold him accountable for improper performance of duties, and even remove him from duties;
• The guardianship department has the right to independently register property in the interests of a child or an incapacitated citizen.

Therefore, the representative must first find out whether the inherited property has value. In accordance with Art. 1175 of the Civil Code of the Russian Federation, the heir receives a share in the debts of the deceased equal to the share in the property received as an inheritance. However, the cost of registering the property will be taken from the property of the ward. Therefore, by refusing an inheritance that is obviously unprofitable, the representative also protects the property rights of the ward.

In addition, from the moment of registration of ownership, the owner of the property, in this case the ward, must bear the costs of maintaining housing (pay for utilities, carry out major and current repairs) and pay property tax. If the inheritance is not of particular value (a share in real estate or other low-value objects), then it is not worth entering into an inheritance on behalf of the ward.

In addition, a ward who has the status of a child left without parental care has the right to receive housing from the state. If, upon reaching 18 years of age, the ward owns a share in real estate, he loses the right to an apartment.

Thus, the representative needs to be extremely careful when entering into an inheritance on behalf of the ward.

What is guardianship and guardianship

Guardianship is a concept that is associated with ensuring the life of an incapacitated person. This form could be, for example, support for a minor child or a disabled person. Guardianship is an official legal fact that implies the emergence of certain rights between the guardian and his ward.

Guardianship is established by government agencies after a certain paperwork procedure. The state encourages the care and maintenance of vulnerable citizens, and therefore willingly helps citizens in this direction.

Any capable person who has reached the age of 18 and has a certain income can obtain guardianship. The responsibilities of the trustee include maintaining the standard of living of the ward and managing his property.

Guardianship is established in order to provide the incapacitated person with a decent life. Therefore, government agencies are careful about candidates. This is expressed in the study of all documents, obtaining characteristics, determining the financial condition

At the same time, municipality employees pay attention to the health status of the trustee.

In general, the tasks of appointing guardianship are:

• Ensuring the protection of the rights of an incapacitated citizen.
• Creating conditions for improving health and raising the level of education.
• Providing comfortable living conditions.
• Preservation and maintenance of the personal property of the ward.

The guardian and the inheritance of the ward is a topic that belongs to the section of the relationship between the parties. Below we will look in more detail about the inheritance rights of a dependent and a trustee.

Lawyer's answers to frequently asked questions

My sister died. Her son and mother became the heirs. Each received ½ share. The son was deprived of legal capacity and placed in a boarding school. This means the director is his guardian. Does he have the right to a share in the apartment that belongs to the ward?

No. The guardian must take care of the safety of the ward’s property and can manage it. But he cannot sell or give away. In case of illegal actions with a share in the apartment. It is necessary to notify the district department of guardianship and trusteeship about this.

The girl, 13 years old, has been under guardianship since birth. The guardian died. She left behind an apartment. The guardian has an adult daughter. Is the girl entitled to a share of the inheritance?

As a dependent of the deceased, the ward is entitled to ½ share of the inheritance. The apartment will be divided equally between the daughter and the ward. If the guardian has made a will, then the ward has the right to a ¼ share in the apartment.

Does his guardian have the right to the inheritance of an incapacitated ward? My grandmother was under my care for more than 3 years. Will her property now go to my mother and uncle?

If your grandmother did not draw up a will for you before deprivation of legal capacity, then her property will be divided among her children.

His partner was appointed his grandfather's guardian. Does she have the right to dispose of the property that her grandfather inherited?

The guardian must ensure the safety of the property. In agreement with the guardianship department, it can manage the property of the ward. But she will not be able to manage the inheritance.

I have a 10-year-old girl under my care. She has been living with us for 4 years. Recently we learned that her mother died. From the inheritance of an old house and loans for a large amount. Can I write a refusal of inheritance from a notary?

The guardian can submit a refusal only with the consent of the guardianship department. To obtain consent, it is necessary to prove that the inheritance includes loan debts.

7 years ago I took out guardianship over someone else’s grandmother. I registered and live in her apartment. If she dies, will I be evicted?

If your grandmother did not assign the apartment to you under the will or under the rent agreement, then you have no rights to it. This means you will have to vacate the premises.

My sister and her husband died. And their child is in a psychoneurological clinic. Can I enter into an inheritance as a second-order heir or will the boarding school take over for their son?

The boarding school must register the property as the property of the ward. But you also have the right to submit an application to a notary. If the boarding school does not protect the rights of the child, then you will receive the inheritance.

The grandmother drew up a will for her neighbor. Six months later she was declared incompetent. The neighbor is now the guardian. Is it possible to challenge a will?

Before the death of the grandmother, the will cannot be contested.

Protection of the rights of minor heirs

N.V. ROSTOVTSEVA

Rostovtseva Natalya Vladimirovna, Associate Professor of the Department of Civil Law of the National Research University Higher School of Economics, Candidate of Legal Sciences, Associate Professor.

The article discusses special provisions of the Civil Code of the Russian Federation aimed at protecting the rights of minor heirs; the practice of their application is analyzed and problems of interpretation of individual norms are identified.

Key words: minors, inheritance, obligatory share in the inheritance, guardianship and trusteeship authorities.

Protection of rights of juvenile heirs

NV Rostovtseva

Rostovtseva Natalya V., assistant professor, Chair of Civil Law, National Research University "Higher School of Economics", candidate of juridical services, assistant professor.

The article deals with the special provisions of the Civil Code of the Russian Federation aimed at safeguarding the rights of the minor heirs; the practice of their application and identifies the problems of interpretation of certain provisions.

Key words: minors, inheritance, compulsory portion in inheritance, bodies of trusteeship and guardianship.

Minor citizens can be heirs, i.e. persons to whom the property of a particular citizen directly passes through the procedure of hereditary succession. Incomplete legal capacity of minors or lack of legal capacity (in persons under six years of age) does not affect the right of the minor to be an heir. The necessary legal actions to accept the inheritance are carried out by his legal representatives.

On the one hand, minors are subject to the general norms of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), provided for any heirs. For example, when inheriting by law, minors can potentially be heirs of various orders. In this case, it is not the age of the child that matters, but the fact of his origin from his parents. Thus, the children of the testator (regardless of age) are heirs of the first stage

along with the spouse and parents of the testator (clause 1 of Article 1142 of the Civil Code of the Russian Federation).
Minors can be heirs of the second stage
, inheriting as brothers and sisters of the testator, if there are no heirs of the first stage (clause 1 of Article 1143 of the Civil Code of the Russian Federation).
Cousins ​​and granddaughters can inherit in fifth place
(along with great-uncles and grandmothers) (paragraph 3, paragraph 2, article 1145 of the Civil Code of the Russian Federation).
Great-great-grandsons and great-granddaughters, cousins, nephews and nieces inherit in sixth place
(along with cousins ​​and aunts) (paragraph 4, paragraph 2, article 1145 of the Civil Code of the Russian Federation).
Minors, even those not related by blood to the testator, can inherit in seventh place
as stepsons and stepdaughters of the testator (clause 3 of Article 1145 of the Civil Code of the Russian Federation). Minors, like other persons, have the right to inherit under a will.

On the other hand, in relation to minors, the law establishes special provisions

aimed at protecting their rights. It is these provisions that will be the subject of analysis in this article.

In accordance with paragraph. 1 clause 1 art. 1116 of the Civil Code of the Russian Federation, citizens who were conceived during the life of the testator and born alive after the opening of the inheritance can be called upon to inherit. Moreover, if the previous legislation allowed as legal heirs only the children of the testator born after his death (Article 530 of the Civil Code of the RSFSR of 1964), then according to the current Civil Code of the Russian Federation not only children, but also other relatives conceived during the life of the testator and those born alive after the opening of the inheritance. An additional guarantee of protection of the rights of the future heir is also the provision of Art. 1166 of the Civil Code of the Russian Federation, which establishes that if there is a conceived but not yet born heir, the division of the inheritance can be carried out only after the birth of such an heir.

According to Art. 1148 of the Civil Code of the Russian Federation, minor citizens who have been dependent on the testator for at least a year can inherit as disabled dependents

the testator in accordance with the so-called sliding (floating) order of inheritance by law, i.e. they inherit together and on an equal basis with the heirs of the line called for inheritance, and, therefore, have the right to count on an equal share of the inherited property with other heirs. Minor citizens are recognized as disabled in accordance with subparagraph. “a” clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases” <1>. At the same time sub. “b”, paragraph 31 of the said Resolution explains that a citizen is considered disabled if the day of his or her coming of age coincides with the day of opening of the inheritance or is determined by a later calendar date.

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<1> See: Bulletin of the Supreme Court of the Russian Federation. 2012. N 7.

If minors are among the heirs from the second to the seventh priority inclusive, then to call them in the order of the sliding order of inheritance, the fact that they have been dependent on the testator for at least a year is sufficient (clause 1 of Article 1148 of the Civil Code of the Russian Federation). If minors are not included in the circle of heirs from the first to the seventh priority, then in addition to the condition of dependency, it is required that they live with him for at least a year before the death of the testator (clause 2 of Article 1148 of the Civil Code of the Russian Federation). For example, if after the death of the testator there remained a spouse, a daughter (heirs of the first stage) and a minor stepson (the spouse’s child not adopted by the testator), who was a dependent, then in the absence of a will, all three will be called upon to inherit by law in equal shares, with joint the residence of the stepson with the testator for at least a year before the opening of the inheritance is not mandatory, since the stepson is the heir of the seventh stage.

In practice, the question arose: can minor grandchildren inherit in a rolling order of inheritance if they were dependent on the testator for at least a year, but the parents were alive at the time the inheritance was opened? The fact is that grandchildren are not subject to clause 1 of Art. 1148 of the Civil Code of the Russian Federation (they are not included in the number of heirs from the 2nd to 7th priority) and are excluded from the scope of clause 2 of Art. 1148 of the Civil Code of the Russian Federation. They can be called upon to inherit only by right of representation, i.e. when their ascending relative (father or mother, who is respectively the son or daughter of the testator) dies before the opening of the inheritance or at the same time as the testator. In the legal literature, the opinion was expressed that dependent minor grandchildren can inherit on the basis of clause 2 of Art. 1148 of the Civil Code of the Russian Federation, i.e. if you lived with the testator for at least a year <2>. Meanwhile, the Plenum of the Supreme Court of the Russian Federation when interpreting Art. 1148 of the Civil Code of the Russian Federation provided a different explanation, indicating that the grandchildren of the testator and their descendants during the lifetime of their parents - heirs according to the law of the first priority - inherit on the basis of the analogy of the law in accordance with paragraph 1 of Art. 1148 Civil Code of the Russian Federation <3>, those. regardless of cohabitation with the testator. The interpretation proposed by the Plenum of the Supreme Court of the Russian Federation certainly serves to better protect the interests of minor grandchildren. However, the doctrine rightly raises the question: to what extent does it comply with the law? After all, during the lifetime of their parents, grandchildren cannot be called upon to inherit at all and, therefore, cannot be considered “citizens classified as heirs by law” (Clause 1 of Article 1148 of the Civil Code of the Russian Federation). As O.E. correctly notes. Blinkov, no matter how highly moral and socially significant the proposal of the Plenum of the Supreme Court of the Russian Federation is, it is contrary to the law, and “to legalize such a proposal, amendments to the Civil Code of the Russian Federation are required, but not the issuance of an act of judicial interpretation” <4>.

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<2> See: Commentary on Part Three of the Civil Code of the Russian Federation / Ed. A.L. Makovsky, E.A. Sukhanov. M.: Yurist, 2002. P. 183 - 184.

<3> See: sub. “d” clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases” // Bulletin of the Supreme Court of the Russian Federation. 2012. N 7.

<4> Blinkov O.E. Russian inheritance law: new interpretation from the Supreme Court of the Russian Federation // Inheritance law. 2012. N 3. P. 3 - 4.

Minor children of the testator, as well as minor dependents called to inherit on the basis of paragraphs 1 and 2 of Art. 1148 of the Civil Code of the Russian Federation, regardless of the contents of the will, has the right to count on an obligatory share

in inheritance. It is at least half of the share due to them upon inheritance by law (Article 1149 of the Civil Code of the Russian Federation). Suppose the testator bequeathed the entire inheritance to N, a family friend. After the death of the testator, the following remained: a minor son, a minor daughter and the testator’s spouse (able-bodied). Minor children have the right to half the legal share, i.e. in our example by 1/6 and 1/6 respectively.

It seems that minor children of the testator, as well as disabled dependents who acquired full legal capacity as a result of marriage or emancipation, have the right to claim the obligatory share.

The size of the mandatory share has been reduced compared to the Civil Code of the RSFSR of 1964 (from two thirds to one second of the legal share). Thus, there is a tendency to expand freedom of will. At the same time, the current Civil Code of the Russian Federation provides for the possibility of judicially reducing the size of the obligatory share or even refusing to award it (clause 4 of Article 1149 of the Civil Code of the Russian Federation), which makes the position of minor “obligatory” heirs more vulnerable. It is important to note that if the will was made before March 1, 2002 (before the entry into force of part three of the Civil Code of the Russian Federation), the size of the obligatory share is determined according to the Civil Code of the RSFSR 1964 (Article 535) and is at least two-thirds of the legal share <5> .

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<5> Article 8 of the Federal Law of November 26, 2001 N 147-FZ “On the introduction into force of part three of the Civil Code of the Russian Federation” // SZ RF. 2001. N 49. Art. 4553; subp. “b” clause 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 29, 2012 No. 9 “On judicial practice in inheritance cases.”

Another provision of the Civil Code of the Russian Federation, aimed at protecting the rights and interests of minor heirs, is clause 4 of Art. 1157 of the Civil Code of the Russian Federation, which establishes that refusal of inheritance in the case where the heir is a minor citizen is permitted with the prior permission of the guardianship and trusteeship authority. If the child is a minor, then on his behalf the parent, adoptive parent or guardian makes a transaction to renounce the inheritance (based on Article 28 of the Civil Code of the Russian Federation), and to carry out such a transaction it is necessary to obtain permission from the guardianship and trusteeship authority. If a child is between 14 and 18 years old, then in accordance with Art. 26 of the Civil Code of the Russian Federation, a minor has the right to refuse an inheritance with the written consent of a parent, adoptive parent or trustee, for which permission has been obtained from the guardianship and trusteeship authority.

Despite the fact that clause 4 of Art. 1157 of the Civil Code of the Russian Federation makes a connection to the age of the potential heir, and not to the scope of his legal capacity, one should agree with the position expressed in the legal literature that “the interpretation of this paragraph should not lead to a situation where a minor person with full legal capacity (for example , in case of emancipation), must obtain the consent of the guardianship and trusteeship authority to renounce the inheritance" <6>.

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<6> Aminov E.R., Andreev I.A., Arsentiev I.L. and others. Inheritance law: Article-by-article commentary to section V of the Civil Code of the Russian Federation / Under the general. ed. M.A. Dimitriev (commentary to article 1157). SPS "ConsultantPlus".

The division of inheritance if there are minor citizens among the heirs is also carried out with the prior permission of the guardianship and trusteeship authority. This follows from paragraph. 1 tbsp. 1167 of the Civil Code of the Russian Federation, which establishes that the division of inheritance in this case is carried out in compliance with the rules of Art. 37 Civil Code of the Russian Federation. Thus, the effect of Art. 37 of the Civil Code of the Russian Federation applies not only to minors over whom guardianship or guardianship has been established (for example, in the absence of parents), but also to minors who have parents. Universality of application of Art. 37 of the Civil Code of the Russian Federation is also based on paragraph. 2 p. 1 art. 28 of the Civil Code of the Russian Federation, which establishes that the rules provided for in paragraphs 2 and 3 of Art. 37 Civil Code of the Russian Federation. Here you can see an analogy with paragraph 4 of Art. 1157 of the Civil Code of the Russian Federation on the necessary participation of guardianship and trusteeship authorities in the event of a minor’s refusal of an inheritance.

Civil Code in para. 2 tbsp. 1167 also stipulates that in order to protect the legitimate interests of minor heirs, the guardianship and trusteeship authority must be notified about the drawing up of an agreement on the division of the inheritance and about the consideration of the case on the division of the inheritance in court.

In the legal literature and in practice, many questions arise regarding the interpretation of the provisions of Art. 1167 Civil Code of the Russian Federation.

Firstly, is the provision of paragraph. 2 tbsp. 1167 of the Civil Code of the Russian Federation unnecessary? Is it not covered by the requirement to obtain permission from the guardianship and trusteeship authority when dividing the inheritance? Thus, in the legal literature the opinion is expressed that it is hardly possible to obtain permission to conclude an agreement on the division of inheritance without notifying the guardianship and trusteeship authority about its preparation and contents <7>. However, par. 2 tbsp. 1167 of the Civil Code of the Russian Federation is designed, among other things, for cases when we are talking about the consideration of a case on the division of inheritance with the participation of minors in court

. It seems that the norm in para. 2 tbsp. 1167 of the Civil Code of the Russian Federation has procedural significance, as it allows the court to involve the guardianship and trusteeship authority as a person participating in the case. This conclusion is confirmed by law enforcement practice. Thus, in the Cassation ruling of the Amur Regional Court dated January 27, 2012 in case No. 33-278/2012 o. When considering this case, failure to comply with the requirement to notify the guardianship and trusteeship authority and failure to involve it in the case served as the basis for canceling the decision of the trial court in cassation.

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<7> See: Belov V.A., Bushaenkova S.A. Section of inheritance // News of higher educational institutions. Jurisprudence. 2005. N 3. P. 52.

Secondly, is it possible to divide the inheritance in a situation where the heirs include not only minors, but also their parents? The division of inheritance is a transaction: according to paragraph. 2 p. 1 art. 1165 of the Civil Code of the Russian Federation, the rules of the Civil Code of the Russian Federation on the form of transactions and the form of contracts are applied to the agreement on the division of inheritance. Meanwhile, in accordance with paragraph 3 of Art. 37 of the Civil Code of the Russian Federation, a transaction cannot be made between a minor, on the one hand, and a guardian, trustee or their spouse and close relatives, on the other hand. The only exceptions are gratuitous transactions in favor of minors.

In practice, there is a case where the father of a young child applied to the guardianship and trusteeship authority for permission to divide the inheritance between him and his young son (heirs of the first priority according to the law) by exchanging shares in the right to real estate, which would allow the young son to become the sole owner of a three-room apartment apartment, and the parent to acquire sole ownership of a one-room apartment. The guardianship and trusteeship authority refused to issue the parent permission to complete this transaction, referring to clause 3 of Art. 37 of the Civil Code of the Russian Federation, which does not provide for transactions between close relatives. In this regard, the child's father, acting for himself and in the interests of his son, filed a lawsuit against the guardianship and trusteeship authority for the division of inherited property. The court of first instance did not find any violation of the rights of the minor and recognized the division of the inherited property as possible. The guardianship and trusteeship authority did not recognize the court's decision and filed an appeal to the Moscow City Court. The Judicial Collegium for Civil Cases of the Moscow City Court did not find any grounds for overturning the decision of the court of first instance, indicating in its appeal ruling that “the provisions of the legal norms referred to by the defendant do not exclude the right of an interested person who is in a situation of need to divide the inherited property, apply to the court with an appropriate claim, based on the results of which, with the involvement of the guardianship and trusteeship authority, the court resolves the case on the merits” <8>.

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<8> See: Appeal ruling of the Moscow City Court dated November 28, 2012 in case No. 11-25886 // ATP “ConsultantPlus”.

Thus, division of the inheritance in the case where, along with a minor, their parents, guardians, trustees, as well as spouses and close relatives of legal representatives, participate in the division of the inheritance, is possible. At the same time, the literature has expressed the position that such a division can only be carried out in court and only with the participation of the guardianship and trusteeship authority, which must be notified of such a division and which during the trial will defend the interests of minors <9>. Consequently, judicial proceedings are contemplated in the absence of a dispute between the parties. As correctly noted by M.L. Shelutto, “the dispute in the case under consideration, essentially, is with the law itself. Court cannot be avoided in truly controversial situations - if the co-owner is unwilling to make a division, or if he disagrees with the terms of the transaction. Unfortunately, ill-considered broad legal prohibitions established contrary to the legitimate interests of participants in civil legal relations force them to simulate a dispute for the division of property that is in common ownership with minors” <10>.

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<9> See: Bardina M.P., Bulaevsky B.A., Vilkova N.G. and others. Commentary on the Civil Code of the Russian Federation, part three (article-by-article) / Ed. N.I. Marysheva, K.B. Yaroshenko. 3rd ed., rev. and additional M.: CONTRACT; INFRA-M, 2010; SPS "ConsultantPlus".

<10> Shelutto M.L. Transactions between children and their legal representatives // Civil law and modernity: Sat. articles dedicated to the memory of M.I. Braginsky / S.S. Alekseev, F.O. Bogatyrev, B.A. Bulaevsky and others; edited by V.N. Litovkina, K.B. Yaroshenko; Institute of Legislation and Comparative Law under the Government of the Russian Federation. M.: Statute, 2013; SPS "ConsultantPlus".

Thirdly, the legislation does not clarify who is responsible for notifying the guardianship and trusteeship authority. In the legal literature about <11>. Indeed, this conclusion follows from clause 20 of the Methodological Recommendations for Registration of Inheritance Rights, which states that if there are minor heirs, in order to protect their property rights, the notary sends a message about the issuance of a certificate of the right to inheritance to the guardianship and trusteeship authority at the place of residence of the heir with indicating the property he inherits <12>. Meanwhile, O.Yu. Pintail rightly notes that obtaining a certificate of the right to inheritance is not mandatory, therefore it would hardly be appropriate, as a general rule, to impose on the notary the obligation to notify the guardianship and trusteeship authorities. The corresponding duties may be assigned to a notary in cases where he issues a certificate of the right to inheritance or certifies an agreement on its division <13>. It seems that the obligation to notify the guardianship and trusteeship authorities should be assigned to the heirs (their legal representatives) participating in the division of the inheritance.

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<11> See: Gongalo B.M., Zaitseva T.I., Krasheninnikov P.V. and others. Civil Code of the Russian Federation. Inheritance law: Article-by-article commentary to section V / Ed. P.V. Krasheninnikova. M.: Statute, 2013; SPS "ConsultantPlus".

<12> See: Methodological recommendations for registration of inheritance rights (approved by the decision of the FNP Board of February 27 - 28, 2007, protocol N 02/07) // Notary Bulletin. 2007. N 8.

<13> See: Bardina M.P., Bulaevsky B.A., Vilkova N.G. and others. Commentary on the Civil Code of the Russian Federation, part three (article-by-article) / Ed. N.I. Marysheva, K.B. Yaroshenko. 3rd ed., rev. and additional M.: CONTRACT; INFRA-M, 2010 (commentary to Article 1167 of the Civil Code of the Russian Federation); SPS "ConsultantPlus".

Fourthly, the question arises: is Art. 1167 of the Civil Code of the Russian Federation to minors who acquired full legal capacity as a result of marriage or emancipation? There is no consensus in doctrine on this issue. So, T.A. Bryuchko believes that “the interests of minors are met by the interpretation of this norm in such a way that the division of the inheritance is carried out in compliance with the rules of Art. 37 of the Civil Code of the Russian Federation if there are minors among the heirs - persons under the age of 18, regardless of whether they are recognized as fully capable" <14>. A similar opinion is shared by Yu.K. Tolstoy <15>. Meanwhile, fully capable minor citizens independently, without the participation of parents, adoptive parents and trustees and guardianship authorities, make any transactions. Article 37 of the Civil Code of the Russian Federation does not apply to fully capable citizens. Consequently, they have the right to independently complete a property division transaction. This position (on the non-extension of the rules of Article 1167 of the Civil Code of the Russian Federation to fully capable minors) is shared by many scientists <16>.

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<14> Bryuchko T.A. Protection of the legitimate interests of minor heirs during the division of inheritance // Notary. 2010. N 2. P. 7 - 11; SPS "ConsultantPlus".

<15> See: Commentary on the Civil Code of the Russian Federation (article-by-article). Part three. M.: LLC "VITREM", 2002. P. 145.

<16> See, for example: Commentary on Part Three of the Civil Code of the Russian Federation / Ed. A.L. Makovsky, E.A. Sukhanov. M.: Yurist, 2002. P. 251; Boguslavsky M.M., Gongalo B.M., Zaitseva T.I. and others. Article-by-article commentary to the Civil Code of the Russian Federation, part three / Ed. P.V. Krasheninnikova. M.: Statute, 2011; SPS "ConsultantPlus".

The above problematic issues that arise when applying the provisions of Art. 1167 of the Civil Code of the Russian Federation, indicate the need to introduce clarifications into this article in order to eliminate ambiguous interpretation of its provisions and ensure their higher practical effectiveness.

The problem of the participation of legal representatives in the exercise by minors of the right to accept an inheritance deserves special attention. Minors cannot accept an inheritance on their own, without the participation of legal representatives. On behalf of the minor, the inheritance is accepted by the parent, adoptive parent or guardian. If the child is between 14 and 18 years old, then acceptance of the inheritance occurs with the consent of the parent, adoptive parent or guardian. Let's imagine the following situation: a young child; the parent does not accept the inheritance on behalf of the minor. That is, there is a fact of parental inaction. Can the child’s minor age be considered as a valid reason giving the right to restore the period for accepting an inheritance in accordance with paragraph 1 of Art. 1155 of the Civil Code of the Russian Federation? There is no answer to this question in the law. In Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases,” among the valid reasons for missing the deadline for accepting an inheritance, circumstances related to the personality of the plaintiff are named: serious illness, helpless state, illiteracy, etc. (clause 40). The child's minor age is not included as such a reason.

In law enforcement practice, there are cases where the court refuses to satisfy a claim to restore the deadline for filing an application for acceptance of an inheritance due to the inaction of the legal representative. Thus, in the Appeal Determination of the Samara Regional Court dated March 12, 2013 N 33-2255/2013, the court indicated that “such a circumstance as the minor age of the heir cannot be a valid reason for missing the deadline for accepting the inheritance, since by virtue of Article 64 of the Family Code Code of the Russian Federation, the protection of the rights and interests of children is entrusted to their parents" <17>.

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<17> SPS “ConsultantPlus”.

Also indicative is the case that became the subject of consideration by the Constitutional Court of the Russian Federation. The mother of a minor son sent a complaint to the Constitutional Court of the Russian Federation, in which she tried to declare clause 1 of Art. 1155 of the Civil Code of the Russian Federation, arguing that the norm of this article “allows for the possibility of depriving a minor heir of the right to restore the deadline for accepting an inheritance missed as a result of the actions of his legal representative, thereby making the exercise of his right to accept an inheritance dependent on the conscientiousness of actions (inaction) and the will of his legal representative." Meanwhile, the Constitutional Court of the Russian Federation did not find any grounds for accepting this complaint for consideration, considering that the provision of paragraph 1 of Art. 1155 of the Civil Code of the Russian Federation cannot be considered as violating any constitutional rights and freedoms of the applicant’s minor son. As stated in the Determination of the Constitutional Court of the Russian Federation, verification of the legality and validity of judicial decisions falls within the competence of the Constitutional Court of the Russian Federation, established by Art. 125 of the Constitution of the Russian Federation and Art. 3 of the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” does not apply <18>.

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<18> See: Determination of the Constitutional Court of the Russian Federation of March 20, 2014 N 556-O “On the refusal to accept for consideration the complaint of citizen Zifa Zhaferovna Iskhakova about the violation of the constitutional rights of her minor son by the provision of paragraph 1 of Article 1155 of the Civil Code of the Russian Federation” / / SPS “ConsultantPlus”.

I would like to hope that the practice of refusing to satisfy a claim for the restoration of a minor at the time of opening the inheritance of the period for accepting the inheritance will change in connection with the clarifications of the Supreme Court of the Russian Federation set out in the Review of judicial practice of the Supreme Court of the Russian Federation for the IV quarter of 2013 regarding the consideration of cases on disputes arising from civil legal relations. Thus, this Review directly explains: “...the inaction of the legal representative, which led to the missed deadline for filing a claim in court to restore the deadline for accepting an inheritance by a child who was a minor at the time of opening the inheritance, is a valid reason for restoring this deadline” <19> .

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<19> Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2013 (approved by the Presidium of the Supreme Court of the Russian Federation on June 4, 2014) // ATP “ConsultantPlus”.

To ensure more reliable protection of the rights of minor heirs who missed the deadline for accepting an inheritance, and in order to form uniform judicial practice, it seems necessary to also introduce into paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in cases of Inheritance” addition, indicating among the valid reasons for missing the deadline for accepting an inheritance, the heir’s minor age at the time of opening the inheritance.

An analysis of special provisions of the Civil Code of the Russian Federation aimed at protecting the interests of minor heirs indicates that their ambiguous interpretation is acceptable in a number of cases. It is necessary to clarify these provisions in order to prevent violations of the rights of minors as the most vulnerable category of heirs.

Literature

1. Belov V.A., Bushaenkova S.A. Section of inheritance // News of higher educational institutions. Jurisprudence. 2005. N 3. P. 46 - 57.

2. Blinkov O.E. Russian inheritance law: new interpretation from the Supreme Court of the Russian Federation // Inheritance law. 2012. N 3. P. 3 - 4.

3. Bryuchko T.A. Protection of the legitimate interests of minor heirs during the division of inheritance // Notary. 2010. N 2. P. 7 - 11.

4. Gongalo B.M., Zaitseva T.N., Krasheninnikov P.V. and others. Civil Code of the Russian Federation. Inheritance law: Article-by-article commentary to section V / Ed. P.V. Krasheninnikova. M.: Statute, 2013. 264 p.

5. Sergeev A.P., Tolstoy Yu.K., Eliseev I.V. Commentary on the Civil Code of the Russian Federation (article-by-article). Part three. M.: VITREM LLC, 2002. 304 p.

6. Bardina M.P., Bulaevsky B.A., Vilkova N.G. and others. Commentary on the Civil Code of the Russian Federation, part three (article-by-article) / Ed. N.I. Marysheva, K.B. Yaroshenko. 3rd ed., rev. and additional M.: CONTRACT; INFRA-M, 2010. 672 p.

7. Commentary on Part Three of the Civil Code of the Russian Federation / Ed. A.L. Makovsky, E.A. Sukhanov. M.: Yurist, 2002. 538 p.

8. Aminov E.R., Andreev I.A., Arsentiev I.L. and others. Inheritance law: Article-by-article commentary to section V of the Civil Code of the Russian Federation / Under the general. ed. M.A. Dimitrieva. SPS "ConsultantPlus". 2012.

9. Boguslavsky M.M., Gongalo B.M., Zaitseva T.I. and others. Article-by-article commentary to the Civil Code of the Russian Federation, part three / Ed. P.V. Krasheninnikova. M.: Statute, 2011. 311 p.

10. Civil law and modernity: Sat. articles dedicated to the memory of M.I. Braginsky / S.S. Alekseev, F.O. Bogatyrev, B.A. Bulaevsky and others; edited by V.N. Litovkina, K.B. Yaroshenko; Institute of Legislation and Comparative Law under the Government of the Russian Federation. M.: Statute, 2013. 766 p.

Source: INHERITANCE LAW magazine

A lawyer will help resolve the issue of the ward’s inheritance

Often people formalize guardianship over elderly single citizens, believing that after their death they can inherit the remaining property, however, as was written above, this is not the case. Therefore, when taking such a step, first consult with a specialist, he will explain to you how best to proceed and what documents are needed so that, for example, you get the apartment of the person under your care.

Our agency’s employees have deep knowledge and extensive practical experience in this area of ​​law, so they can guarantee you the optimal solution to your problem. You can contact us in any convenient way published on the website: call the hotline (calls are free), write in online chat or email, or order a call back.