Will or deed of gift: which is safer and faster to draw up?

Pros and cons of a will for an apartment

Drawing up an administrative document is a citizen’s right, not an obligation. In the absence of a will, the property will be divided among the heirs based on the legal order. If the owner wishes to independently determine the list of heirs and establish their share of the property, then he must draw up a will.

To summarize: Among the advantages of a will is the possibility of transferring property to close relatives or strangers, the possibility of drawing up an administrative document for property that has not yet been purchased. The main disadvantage is the risk of appealing the distribution document in the future.

You can draw up an administrative document at any time. The main thing is that the desire is voluntary and not imposed by other participants. If the fact of coercion or abuse of trust is confirmed, the will can be annulled in court.

Who can act as a testator?

In accordance with the Civil Code of the Russian Federation, the testator can be a citizen of Russia, a national of another state, a stateless person who meets the following requirements:

• full legal capacity (attaining 18 years of age, obtaining legal capacity through emancipation);
• the absence of a psychological disorder that prevents you from fully realizing your actions;
• absence of temporary incapacity, which may arise due to abuse of alcohol, drugs or psychotropic drugs.

Persons between the ages of 14 and 16 can make a will, but only with the written permission of their parents. It is mandatory to involve a representative of the guardianship and trusteeship authorities in the procedure, who will confirm that the interests and rights of the child are respected.

Who can be the heir?

Heirs under a will can be all citizens, foreigners, and stateless persons, regardless of their place of residence. The recipient of property can be incapacitated citizens with mental disorders, minor children, whose interests are represented by legal representatives and appointed guardians.

A will can transfer property to individuals, legal entities and charities.

Additionally, the testator may indicate in the contents of the distribution document his will to exclude certain persons from the list of heirs. If after the death of the testator it is established that there are grounds for recognizing any of the heirs as unworthy, then they are deprived of the right to property regardless of the will of the deceased person.

If there are children

The testator can assign the mortgaged property to his wife, brother or children from his first marriage. The law does not contain any restrictions.

Even minor children can act as beneficiaries. When registering an inheritance, their interests will be represented by their parents or guardians. If the legal representatives want to refuse the inheritance, then they will have to obtain the written consent of the guardianship authority.

To whom are the loan obligations transferred? Acceptance of an inheritance implies the simultaneous transfer of the obligations of the testator to his legal successors (Article 1175 of the Civil Code of the Russian Federation). The amount of liability is limited to the value of the inherited property. Creditors can bring claims against beneficiaries within the statute of limitations.

However, minor children cannot be financially liable to the creditor. Their interests are represented by their parents.

They can:

1. Accept the property and pay off the debt at your own expense. Repaying the parent's debt does not make them co-owners of the mortgaged apartment. The property remains the property of the child.
2. Sell ​​the apartment and close the mortgage loan. The difference between the value of the property and the amount of debt remains with the heir. However, to complete a transaction of property re-registered to a minor child, permission from the district guardianship department will be required.
3. Refuse inheritance. To submit a waiver on behalf of a minor child, you must provide the notary with permission from the district guardianship department.
4. Obtaining insurance from an insurance company. If the testator insured his life when drawing up a loan agreement, the heir or his representative can obtain insurance and close the debt.

How to write a will for an apartment?

When drawing up an administrative document, there is a possibility of its subsequent cancellation after the death of the testator. The risk is associated with the fact that the person himself will no longer be able to protect his property interests. To avoid such situations, it is necessary to follow the rules approved by civil law. It would be a good idea to involve a lawyer in the procedure, who will help you avoid problems and tell you how to correctly draw up administrative documents.

Requirements for form and design

A will can only be written, typed or handwritten on paper. The Civil Code defines the following registration rules:

• citizens draw up a document only in person; the involvement of representatives is not allowed;
• a will can be drawn up by only one person (the exception is a marital will, the possibility of which was added in 2021);
• when approving an administrative document, the presence of 2 witnesses is required, who must be disinterested persons and fully capable;
• mandatory certification of documents by a notary;
• the will must contain the date of execution and the signature of the testator.

The form of the future will depends on the type of administrative documents:

1. An open will is the most common type of administrative document. A person draws up a will independently or with the help of a notary and has it approved by a notary. The notary gets acquainted with the content in advance and can eliminate all legal and other errors.
2. A closed will is a type of document whose contents are not revealed even to a notary. The approval takes place in a closed envelope in the presence of at least two witnesses.
3. Wills equivalent to notarial wills. This category includes administrative documents drawn up in cases where it is impossible to attract a notary. The document is approved by an official who has the authority to sign the will. These are the chief doctors of medical institutions, leaders of scientific expeditions, leaders of military formations, and captains of sea vessels.
4. Distribution document issued in emergency circumstances. This concerns the occurrence of a danger to a person’s life, which forces him to draw up a will. After the end of the dangerous circumstances, the will must be approved by a notary.

Contents of the will

Regardless of the type of will, the document must contain the following sections of information:

• date of registration;
• the city where the will is made;
• Full name of the testator;
• person’s passport details;
• registration address;
• the address of the apartment that a person wants to inherit;
• signature and date of preparation.

By will, a person has the right to transfer real estate to one or more heirs. If several candidates are involved, the testator is obliged not only to indicate their names, but also to indicate who will receive what share of the property.

Sample will for an apartment

What documents are needed to register a will with a notary?

How to appoint an executor of a will?

The procedure for certifying a will for an apartment

The testator can independently draw up a will at any time, but it will receive legal force only after approval. Additionally, the notary registers the will in the unified register, which allows, after the death of the testator, to check information about the availability of the distribution document.

Which notary should I contact?

To approve the will, the testator can choose any notary, regardless of the place of registration and residence. This is due to the fact that after registering a will, all lawyers working in the Russian Federation have access to the register.

In accordance with the requirements of Article 1115 of the Civil Code, the opening of an inheritance is carried out only at the place of last registration of the testator, therefore it will be more convenient for the heirs if the will is drawn up at the place of residence.

The notary certifying the will is obliged to completely preserve the secrecy of the will. Not only is it prohibited to disclose the contents of an administrative document, but also to disclose information about the execution of a will.

List of documents

To draw up an administrative document, the testator must have with him:

• passport;
• document confirming registration;
• receipt for payment of state duty.

To avoid disputes in the future and to prevent the revocation of the will, a person has the right to provide an additional certificate from a narcologist and a psychiatrist confirming the absence of a psychological disorder. So the will is not revoked due to incapacity.

When making a will, regardless of the indication of real estate, a person should not bring documents for this property. Property rights to real estate will be verified by a notary already at the stage of opening inheritance proceedings, since after the execution of a will, until his death, a person has the right to dispose of real estate up to its alienation.

Registration cost

In 2021, when registering a will, the testator will have to pay a state fee, technical and legal services of a notary. In 2021, the state duty is 100 rubles. This amount is approved by the Tax Code and is the same for all participants in legal relations. A state fee is charged for the notary's signature and entering information about the will into the unified register.

Legal services include assistance from a notary in drawing up a distribution document. The cost of a will will depend on whether a person applies to a private or public notary office.

On average you will have to spend 5,000 rubles.

Technical services include making copies, preparing notarial requests, checking draft versions of wills.

2000-3000 rubles will be added to existing costs.

Deadlines for issuance to the testator

The will will be issued immediately. But there is an exception. There are two types of wills:

1. Open . Published in two copies, one of which is given to the author.
2. Closed . One copy. It is sealed in an envelope and sent to the archive.

In both cases, everyone present during writing, including notary employees and witnesses, must keep the secret. What type of will to choose is the decision of the citizen. But in case of disclosure, the testator has the right to demand financial compensation through the court.

Transferring a document to an heir: who decides?

The testator has the right to decide this issue himself, but the secret expression of will is not transmitted. This step eliminates the need for the successor to query the notary's unified database to find out where the will is stored. But if relatives don’t know, there is no risk that a scandal will arise and you will have to waste your nerves and health. The heir is not obliged to keep the secret, although this is also in his interests.

Changing a will

Each testator, after approval and registration of the will, has the right to:

• cancel the administrative document;
• make changes to the contents of the will;
• draw up a new administrative document.

When a new will is executed, the notary approves it and registers it in the registry. All documents drawn up before this are canceled, but continue to be stored in the register and in the notary office.

If, after the opening of the inheritance, the last copy of the will is canceled in court, the previous copy is taken into account. If there are no grounds for canceling the previous copy, then the division of property occurs according to it.

Challenging a will for an apartment

Challenging a will is a common procedure that begins at the initiative of heirs excluded from the list of property recipients. Contesting a will occurs only in court in a federal court of general jurisdiction. You can prepare a statement of claim and send it to court only under the following circumstances:

• violation of the form of the will;
• violation of the contents of the document;
• violation of the procedure for drawing up an administrative document;
• making a will by an incapacitated person;
• execution of a document under duress;
• presence of other violations of legal procedure or rights of the testator.

To challenge the person concerned, you need to do the following:

• opening of inheritance due to the death of the testator;
• familiarization with the contents of the will;
• collection of evidence indicating sufficient grounds for annulment of the administrative document;
• preparing a statement of claim;
• sending a petition to the court;
• suspension of the inheritance period by order of the court;
• resolution of the dispute on the merits;
• obtaining a court decision;
• transfer of the decision to the notary, who continues further notarial proceedings.

Who can challenge a will?

Not all participants in legal relations can initiate the revocation of a will. The following may prepare and submit a petition to the court:

• persons specified in the will who are dissatisfied with the procedure for dividing property;
• relatives excluded from the list of candidates;
• close relatives who claim to receive property in the first place if there were no will.

If the testator’s circle included persons claiming an obligatory share of the inheritance, but no mention of them was included in the contents of the order, then this is not a basis for revoking the will. In this case, the notary allocates the obligatory share and then divides the property in accordance with the last will of the person.

Additional guarantees

If you suspect that a will may be contested, there are additional steps you need to take to help protect wills from being contested.

• Draw up the text of the will in accordance with all requirements. To do this, you need to use the help of a notary or lawyer.
• Draw up the document in two or more copies and have it certified by a notary.
• Prepare certificates that confirm that the testator at the time of drawing up the paper is mentally and physically healthy, capable, and is not registered with a drug treatment center or a psychiatrist.
• When drawing up and verifying the paper, use video footage or involve several witnesses.

This article will tell you about the rules for challenging a will: https://sovetadvokatov.ru/138-osparivanie-nasledstva-po-zaveshchaniyu.html.