When an inheritance can be deprived: grounds, consequences, judicial practice

Author

Sergey Ershov

Registration number in the register of lawyers of St. Petersburg – 78/5563

A close relative has died. But among the successors there were persons who were not worthy to claim the property of the deceased. In this article I will tell you on what grounds disinheritance is carried out. Let's consider the algorithm of actions when choosing one or another method of excluding a deceased person from the list of applicants for the property.

Grounds for disinheritance

The reasons are described in Art. 1117 and 1119 of the Civil Code of the Russian Federation. Citizens risk losing rights to the assets of the deceased in several cases:

1. Order of the deceased. The owner can disinherit one, several or all family members. The last will must be formalized in the form of a will and certified by a notary. The testator has the right not to justify his decision and not to notify relatives about it.
2. Judicial act. They are excluded from the distribution of values ​​if dishonesty is proven. The reason for deprivation of rights is the commission of a deliberate criminal act against the deceased or his relatives. Attempts to obstruct the will of the deceased, concealment of property, falsification of documents on kinship, destruction of wills, and deception of a notary were recognized as sufficient grounds.
3. Failure to fulfill parental and family duties. A mother or father who has limited rights to a child cannot claim his property in the event of death. A similar rule applies to a relative who maliciously evaded supporting the deceased. The signs of such behavior were described by the RF Armed Forces in determination No. 18-KG18-53 of June 19, 2018. The offense can be expressed in a complete refusal to pay alimony, concealment of real earnings, and frequent changes of places of employment in order to reduce deductions.

The notary does not have information about the integrity of the participants. The initiative must come from the testator or other interested parties. Applicants not only report the fact, but also present supporting documents.

The exception is a will. The will of the deceased does not need justification.

The mechanism of depriving an heir of an inheritance cannot become an instrument of selfish struggle. The norms are aimed at the fair distribution of values ​​between family members and people in close relationships with the deceased.

Underwater rocks

When initiating the disinheritance procedure, it is necessary to take into account such nuances as:

1. The obligation to support a deceased citizen must be established by a legislative act, for example, by a court decision on the collection of alimony. The heir may be considered unworthy if he maliciously evaded its fulfillment. The court independently decides the severity of the offense, depending on the duration of non-payment and their reasons.
2. If the unworthy heir has already assumed his rights and received a certificate to this effect from a notary, then he will need to file a claim to invalidate the document. It must indicate the reasons that the successor is not entitled to receive his share.
3. When filing a claim, you must pay a state fee. It is calculated according to Art. 333.19 Tax Code of the Russian Federation. The minimum amount of collection to the treasury is 400 rubles, the maximum is 60,000 rubles. If a claim is filed to declare the heir unworthy, you will need to pay 300 rubles.

Who is the unworthy heir?

The term applies to persons excluded from the procedure as a result of dishonest behavior. All cases are specified in Art. 1117 of the Civil Code of the Russian Federation. The offense must be confirmed by a final court decision or conviction.

At the same time, the norm provides for a rehabilitation mechanism. Thus, you cannot be disinherited in the following situations:

1. The decision of the deceased. If, after committing an offense, a citizen indicates an unworthy heir in the will, it will not be possible to remove him from the procedure.
2. Eliminating the cause. Thus, parents can achieve restoration of their rights to their child before his death. Persons who maliciously avoided supporting the deceased in the past often correct themselves. They can transfer funds to the testator for many years after the verdict. In this case, the notary's act of disinheritance is challenged in court. The need for a detailed check was stated by the Supreme Court of the Russian Federation in Resolution No. 9 of May 29, 2012.

Any heirs may be considered unworthy. The condition is that there is conclusive evidence of dishonest behavior. If, as a result of deceiving a notary, a citizen acquired property or material benefits, he is obliged to return them in full.

Which heirs can be disinherited?

By written order, a citizen has the right to exclude all family members from the posthumous division of property. The degree of relationship, actual care, oral agreements - all this loses legal significance if there is a direct indication in the will.

Who cannot be disinherited

The freedom of the last will is limited by the requirement of a compulsory share. Thus, you cannot disinherit under a will:

• minor sons and daughters;
• disabled parents, spouses, children;
• other dependents who have lost the ability to provide for themselves.

Whatever the content of the posthumous order, such persons will receive at least half of the property due to them by law (Article 1149 of the Civil Code of the Russian Federation). You cannot disinherit illegitimate children. If the child can prove a genetic relationship, he will be included in the participants.

The exception is the recognition of citizens as unworthy heirs. In this situation, the law allows even recipients of a compulsory share to be disinherited.

The complete ban applies to young children and infants who were in the womb at the time of the death of the parent. The restriction is due to the lack of grounds for recognizing such persons as unworthy heirs. Until the age of 14, citizens cannot become involved in criminal cases or commit civil torts.

Inheritance by will

1. Currently, property can only be disposed of in the event of death by drawing up a will. In this case, the making of a will by two or more persons is not allowed. A will is always:

- personal order of a legally capable person

a citizen in case of death regarding his property rights and obligations;

- one-sided deal

;

— notarized

certified transaction or equivalent to such.

The will must be made in person. Making a will through a representative is not allowed.

A citizen who has not reached the age of 18, but is in a registered marriage, has the right to draw up a will. An emancipated citizen (Article 27 of the Civil Code) also has the right to make a will.

If a citizen is recognized as incompetent or with limited legal capacity (Articles 29 and 30 of the Civil Code), making a will is unacceptable.

2. The principle of freedom of will.

A citizen making a will has the right, at his own discretion, to bequeath property to any persons, to determine in any way the shares of heirs in the inheritance, to deprive one, several or all heirs of the inheritance by law, without specifying the reasons for such deprivation, and also to include other orders in the will. The testator has the right to cancel or change the completed will at any time. Freedom of testament is limited only by the rules on compulsory share in inheritance. The testator is not obliged to inform anyone about the contents, execution, change or cancellation of the will (Article 1119 of the Civil Code).

The principle of freedom of will gives maximum choice for the testator both regarding the inherited property and regarding the heirs.

The testator has the right:

— make a will in favor of one or more persons.

Moreover, he is not connected by family or other relationships - this is his choice. The will may indicate both individuals and legal entities, both Russian and foreign citizens;

— to appoint an heir as an heir under a will,

as well as to the heir by law in cases where the heir appointed by him in the will or the heir by law dies before the opening of the inheritance, or simultaneously with the testator, or after the opening of the inheritance, without having time to accept it, or does not accept the inheritance or refuses it, or will not have the right to inherit or will be excluded from inheritance as unworthy;

— appoint an executor,

those. executor of his will as expressed in the will. Currently this can only be a citizen;

— assign

for one or more heirs, both by will and by law, fulfillment
at the expense of the inheritance of obligations of a property nature
in favor of one or more persons
(testamentary refusal)
;

— assign to the heir

(heirs) by law or will, the commission of any
action of a property or non-property nature aimed at achieving a generally beneficial purpose (assignment);
- at any time cancel or change the will he has drawn up,

not explaining the reasons for your actions;

— “forgive” your unworthy heirs,

bequeathing property to them after they lost the right of inheritance, etc.

3. As a general rule, a will must be drawn up in writing and certified by a notary.

Failure to comply with this rule entails the invalidity of the will.

All wills can be divided into notarized wills, equivalent wills and wills drawn up in emergency conditions.

Notarized wills should be divided into simple and closed, with and without witnesses.

A will can be certified by any notary and does not depend on the place of residence of the testator.

Based on paragraph 1 of Art. 1125 a notarized will must be written by the testator or recorded from his words by a notary.

As a general rule, a will must be signed personally. The law makes it possible not to sign a will due to physical disabilities, serious illness, or illiteracy. In such cases, the will must indicate the reasons why the testator could not sign the will with his own hand, as well as the last name, first name, patronymic and place of residence of the citizen who signed the will at the request of the testator, in accordance with the identity document of this citizen.

4. The testator has the right to make a will without giving other persons, including a notary, the opportunity to familiarize themselves with its contents (closed will).

Such a will must be personally written and signed by the testator. Failure to comply with these rules entails the invalidity of the will.

The closed will in a sealed envelope is handed over by the testator to the notary in the presence of two witnesses who sign the envelope. The envelope signed by the witnesses is sealed in their presence by a notary in another envelope, on which the notary makes an inscription containing information about the testator from whom the closed will was accepted by the notary, the place and date of its acceptance, surname, first name, patronymic and place of residence of each witness in accordance with the identity document. When accepting an envelope with a closed will from the testator, the notary is obliged to explain to the testator the contents of the law and make an appropriate inscription about this on the second envelope, as well as issue the testator a document confirming the acceptance of the closed will (Article 1126 of the Civil Code).

5. Witnesses in inheritance law are citizens present during the drawing up and certification of a will.

Witnesses can be voluntary or mandatory.

Voluntary witnesses participate in the execution of a will at the request of the testator and with the consent of the relevant citizens, while mandatory witnesses are required by law and, of course, with the consent of both the testator and the citizen witnesses (transfer of a closed will to a notary (clause 2 of Article 1126 Civil Code); opening by a notary of an envelope with a closed will and reading out such a will (clause 4 of Article 1126); execution of a will equivalent to a notarized will (clause 2 of Article 1127 of the Civil Code)).

The following cannot be witnesses: a notary or other person certifying the will; the person in whose favor a will is drawn up or a testamentary refusal is made, the spouse of such a person, his children and parents; citizens who do not have full legal capacity; illiterate; citizens with physical disabilities that clearly do not allow them to fully understand the essence of what is happening; persons who do not sufficiently speak the language in which the will is drawn up, with the exception of the case when a closed will is drawn up (clause 2 of Article 1124 of the Civil Code).

If a will is drawn up and certified in the presence of a witness, it must be signed by him and the last name, first name, patronymic and place of residence of the witness must be indicated on the will. The notary warns the witness, as well as the citizen signing the will instead of the testator, about the need to maintain the secrecy of the will (clauses 4 and 5 of Article 1125 of the Civil Code).

6. The following are equivalent to notarized wills:

1) wills of citizens undergoing treatment

in hospitals, hospitals, other inpatient medical institutions or living in homes for the elderly and disabled, certified by the chief doctors, their deputies for medical care or the doctors on duty of these hospitals, hospitals and other inpatient medical institutions, as well as the heads of hospitals, directors or chief doctors of houses for the elderly and disabled;

2) wills of citizens who are on ships while sailing,

sailing under the State Flag of the Russian Federation, certified by the captains of these vessels;

3) wills of citizens who are

in exploration, Arctic, Antarctic or other similar expeditions, certified by the heads of these expeditions, Russian Antarctic stations or seasonal field bases;

4) wills of military personnel,

and at points of deployment of military units where there are no notaries, also wills of civilians working in these units, members of their families and family members of military personnel, certified by the commanders of military units;

5) wills of citizens in prison,

certified by the heads of places of deprivation of liberty.

Unlike a notarized will, equivalent wills must be signed not only by testators and persons certifying the will, but also by witnesses

.

The testamentary disposition of rights to funds in banks should also be considered equivalent to notarized wills. Thus, a testamentary disposition of rights to funds in a bank can be certified by an authorized bank employee (Articles 1127, 1128 of the Civil Code).

7.

Drawing up a will in simple written form is allowed only as an exception in the cases provided for in Art.
1129 Civil Code. A citizen who is in a situation that clearly threatens his life, and due to the current emergency circumstances, is deprived of the opportunity to make a will in accordance with the rules of Art.
Art. 1124 -
1128
of the Civil Code, can express his last will regarding his property in simple written form. The presentation of a citizen's last will in simple written form is recognized as his will if the testator, in the presence of two witnesses, personally wrote and signed a document, from the content of which it follows that this document constitutes a will. A will made in emergency circumstances is subject to execution only if the court, at the request of interested parties, confirms the fact that the will was made in emergency circumstances.

8. In case of violation of the provisions of
the Civil Code
, entailing the invalidity of a will, depending on the grounds for invalidity, the will is invalid due to its recognition as such by the court (disputable will) or regardless of such recognition (void will).

A will may be declared invalid by a court upon the claim of a person whose rights or legitimate interests are violated by this will. A will may be declared invalid on the general grounds established by law for recognizing transactions as invalid (Articles 168 - 179 of the Civil Code). It should be noted that challenging a will before the opening of the inheritance is not allowed. The law also defines some special grounds for invalidating a will. Thus, failure to comply with the rules regarding the written form of a will and its certification entails the invalidity of the will.

Misprints and other minor violations of the procedure for its preparation, signing or certification cannot serve as grounds for the invalidity of a will if the court has established that they do not affect the understanding of the will of the testator.

Both the will as a whole and the individual testamentary dispositions contained in it may be invalid. The invalidity of individual instructions contained in the will does not affect the rest of the will, if it can be assumed that it would have been included in the will in the absence of instructions that are invalid.

The invalidity of a will does not deprive the persons named therein as heirs or legatees of the right to inherit by law or on the basis of another valid will.

Drawing up a will in simple written form is allowed only as an exception in the cases provided for in Art. 1129 Civil Code. Particular grounds for the invalidity of the will are mentioned in paragraph 3 of Art. 1124 of the Civil Code and are associated with the fact of the presence of a witness when making a will. In the event that when drawing up, signing, certifying a will or when transferring it to a notary, the presence of a witness was mandatory, the absence of one when performing these actions entails the invalidity of the will, and the witness’s failure to comply with the requirements established by law (personal or other interest of the witness; incomplete legal capacity or illiteracy etc.) may be grounds for invalidating a will. In the first of the cases mentioned, the will is void, in the second it is voidable.

9.

One of the most important
principles
of inheritance by will is
the secrecy of the will
.
This principle is based on the constitutional right of a citizen to privacy (Part 1 of Article 23 of the Constitution). By virtue of Art. 1123 of the Civil Code , a notary, another
person certifying a will, a translator, an executor of a will, witnesses, notaries with access to information contained in the unified information system of the notary, and persons processing data of the unified information system of the notary, as well as a citizen signing the will instead of the testator,
does not have the right, before the opening of the inheritance, to disclose information concerning the contents of the will, its execution, modification or cancellation.
In case of violation of the secrecy of the will, the testator has the right to demand compensation for moral damage, as well as use other methods of protecting civil rights. At the same time, the submission by a notary or other person certifying the will of information about the certification of the will, the revocation of the will to the unified information system of the notary is not a disclosure of the will.

10. The testator has the right to assign to one or more heirs by will or by law the fulfillment at the expense of the inheritance of any obligation of a property nature in favor of one or more persons (legatees), who acquire the right to demand the fulfillment of this obligation (testamentary refusal).

The contents of the will may be limited to the testamentary refusal.

In accordance with paragraphs 2 - 4 of Art. 1137 of the Civil Code, the subject of a testamentary refusal may be the transfer to the legatee of ownership, possession on another property right or for the use of a thing included in the inheritance, transfer to the legatee of a property right included in the inheritance, acquisition for the legatee and transfer to him of other property, fulfillment for him of certain work or provision of a certain service to him or making periodic payments in favor of the legatee, etc. In particular, the testator may impose on the heir to whom a residential house, apartment or other residential premises is transferred the obligation to provide another person with the right to use this premises or a certain part of it for the period of this person’s life or for another period. Upon subsequent transfer of ownership of the property that was part of the inheritance to another person, the right to use this property granted by testamentary refusal remains in force.

The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance and does not pass to other persons. However, the legatee in the will may be assigned another legatee in the event that the legatee appointed in the will dies before the opening of the inheritance or at the same time as the testator, or refuses to accept the testamentary refusal or does not exercise his right to receive the testamentary refusal, or is deprived of the right to receive the testamentary refusal. The three-year period from the date of opening of the inheritance for filing a request for a testamentary refusal is preemptive and cannot be restored. The expiration of this period is grounds for refusal to satisfy these requirements.

It should be noted that the heir’s obligation to fulfill a testamentary refusal arises only if he accepts the inheritance. A testamentary refusal is executed within the limits of the value of the inheritance transferred to it. If the heir to whom the testamentary refusal is entrusted has the right to an obligatory share in the inheritance, his obligation to fulfill the refusal is limited to the value of the inheritance transferred to him, which exceeds the size of his obligatory share (clause 1 of Article 1138 of the Civil Code).

In cases where a testamentary refusal is assigned to several heirs, such refusal burdens the right of each of them to inheritance in proportion to his share in the inheritance insofar as the will does not provide otherwise.

If, due to circumstances provided for by the Civil Code, the share of the inheritance due to the heir, who was entrusted with the obligation to fulfill the testamentary refusal, passes to other heirs, the latter, insofar as it does not follow otherwise from the will or law, are obliged to fulfill such refusal (Article 1140 of the Civil Code).

If the legatee, by his deliberate unlawful actions directed against the testator or heirs or against the implementation of the testator’s last will expressed in the will, contributed or tried to facilitate the receipt of a testamentary refusal, he is excluded from receiving a testamentary refusal (clause 5 of Article 1117 of the Civil Code).

The legatee has the right to refuse to receive a testamentary refusal (Article 1137 of the Civil Code). In this case, refusal in favor of another person, refusal with reservations or under conditions is not allowed.

In the case where the legatee is also an heir, his right to refuse to receive a testamentary refusal does not depend on his right to accept or refuse the inheritance.

11. A testator may in a will impose on one or more heirs by will or by law the obligation to perform any action of a property or non-property nature aimed at achieving a generally beneficial purpose (testamentary assignment).

The same obligation may be assigned to the executor of a will, provided that a part of the inherited property is allocated in the will for the execution of the testamentary assignment.

Unlike a testamentary refusal, which is always of a property nature, an assignment can be of both a property and non-property nature. In the first case, the rules on the execution of a testamentary refusal are applied to the testamentary assignment.

In a testamentary refusal, the legal significance is precisely the generally beneficial goal, towards the achievement of which the actions of the person obligated to fulfill the assignment should be directed.

Interested persons, the executor of the will and any of the heirs have the right to demand execution of the testamentary assignment in court, unless otherwise provided by the will. The validity period of the right to demand the execution of a testamentary disposition is not directly defined by law, however, clause 2 of Art. 1139 of the Civil Code establishes that the rules provided for by the Code for testamentary disclaimers are applied to a testamentary assignment, the subject of which is actions of a property nature. Taking this into account, the right to demand the execution of such a testamentary assignment is valid for three years from the date of opening of the inheritance.

If, due to circumstances provided for by law, the share of the inheritance due to the heir who was entrusted with the obligation to fulfill the testamentary assignment passes to other heirs, the latter, insofar as the will or law does not indicate otherwise, are obliged to fulfill such assignment.

12.

In order to protect the rights and interests of citizens not specified in the will, but who were dependent on the testator due to incapacity, the law provides for the right of compulsory share of such heir.
This share, as the name suggests, is mandatory and therefore limits the rights of other persons, including the testator and heirs under the will. Such a share is at least half the share that would be due upon inheritance by law
.

The right to an obligatory share in an inheritance is satisfied first of all from the remaining untested part of the inheritance property, even if this leads to a reduction in the rights of other heirs under the law to this part of the property, and if the untested part of the property is insufficient to exercise the right to an obligatory share, from that part of the property , which is bequeathed.

The obligatory share includes everything that the heir entitled to such a share receives from the inheritance for any reason, including the cost of the testamentary disclaimer established in favor of such heir.

If the exercise of the right to an obligatory share in the inheritance entails the impossibility of transferring to the heir under the will property that the heir entitled to the obligatory share did not use during the life of the testator, but the heir under the will used for living (a residential building, apartment, other residential premises, dacha, etc.) or used as the main source of livelihood (tools, creative workshop, etc.), the court may, taking into account the property status of the heirs entitled to the obligatory share, reduce the size of the obligatory share or refuse in her award.

When determining the circle of heirs entitled to receive a mandatory share in the inheritance, as well as the rules for calculating it, it is necessary to take into account a number of provisions:

1) the right to an obligatory share cannot be made dependent on the consent of other heirs to receive it, since the law does not provide for the need for their consent;

2) heirs of the second and subsequent stages, as well as heirs by right of representation, whose parents died before the opening of the inheritance, do not have the right to an obligatory share in the inheritance, except in cases where these persons were dependent on the deceased;

3) Art. 1149 of the Civil Code does not connect the emergence of the right to an obligatory share in the inheritance of the persons listed in this norm with cohabitation with the testator, with the exception of the calling to inherit as obligatory heirs of the disabled dependents of the testator, named in paragraph 2 of Art. 1148 GK;

4) children adopted after the death of persons whose property they had the right to inherit do not lose the right either to a share in the inherited property as heirs at law, or to an obligatory share if the property was bequeathed to other persons, since by the time the inheritance was opened the legal relationship with the testator , being their parent, were not terminated;

5) children adopted during the lifetime of a parent do not have the right to inherit the property of this parent and his relatives, since upon adoption they lost their personal and property rights in relation to them, with the exception of the cases specified in paragraph 4 of Art. 137 of the Family Code, providing for the possibility of maintaining relations with one of the parents in the event of the death of the other or with the relatives of the deceased parent at their request, unless the adoptive parent objects to this;

6) when determining the size of the obligatory share in the inheritance, one should take into account all heirs by law who would be called to inherit (including heirs by right of representation to the share of their parents, who would have been heirs by law, but died before the day the inheritance was opened ), and proceed from the value of all inherited property (both bequeathed and untested parts), including items of ordinary home furnishings and household items. Therefore, when determining the size of the obligatory share in the inheritance allocated to the plaintiff, it is necessary to take into account the value of the property received by him by inheritance by law (or by another will of the same testator), including the value of property consisting of items of ordinary home furnishings and household items;

7) the obligatory share in the inheritance is determined in the amount of at least 1/2 of that which would be due to the heir entitled to it in case of inheritance by law, and is allocated to this heir in cases where he is not indicated in the will or a part of the inheritance is bequeathed to him less than the required share;

the right of the heir to accept part of the inheritance as a mandatory share does not pass to his heirs by way of hereditary transmission;

9) in cases established by law (clause 4 of Article 1149 of the Civil Code), the court may, taking into account the property status of the heirs entitled to the obligatory share, reduce the size of the obligatory share or refuse to award it;

10) rules on declaring an heir unworthy in accordance with Art. 1117 of the Civil Code applies to heirs who have the right to an obligatory share in the inheritance.

13. The execution of a will is carried out by the heirs under the will, with the exception of cases when its execution in full or in a certain part is carried out by the executor of the will. The testator may entrust the execution of the will to the citizen-executor (executor of the will) specified by him in the will, regardless of whether this citizen is an heir.

The consent of a citizen to be the executor of a will must be expressed in writing. A citizen is also recognized as having agreed to be the executor of a will if he, within a month from the date of opening of the inheritance, actually began to execute the will.

The testator may indicate in the will a list of actions that the executor has the right to perform. Unless otherwise provided in the will, the executor of the will must take the measures necessary for the execution of the will.

The executor of a will has the right, on his own behalf, to conduct affairs related to the execution of the will, including in court, other government bodies and government agencies. The executor of a will can perform a variety of functions: search for heirs in whose favor the will was made; notify them about the opened inheritance; contact the notary at the place of opening of the inheritance with an application to take measures to protect the inherited property; distribute inherited property among the heirs in cases where this is possible (for example, distribute items of ordinary household furnishings and household items between the heirs in the absence of a dispute between them), etc. The executor of the will has the right to compensation from the inheritance for the necessary expenses associated with the execution of the will, as well as to receive remuneration in excess of expenses from the inheritance, if this is provided for by the will.

The heirs have the right to demand from the executor of the will a report on its execution; in turn, the executor of the will has the right to compensation from the inheritance for the necessary expenses associated with the execution of the will, as well as to receive remuneration in excess of the expenses from the inheritance, if this is provided for by the will (Article 1136 Civil Code).

14. The principle of freedom of a will presupposes the possibility at any time to cancel or change a will drawn up by him, without indicating the reasons for its cancellation or change.

The testator has the right through a new will

revoke the previous will as a whole or change it by canceling or changing individual testamentary dispositions contained in it. Regardless of whether or not a subsequent will contains direct instructions to cancel the previous will or individual testamentary dispositions contained therein, it cancels the will in whole or in part in which it contradicts the subsequent will.

A will canceled in whole or in part by a subsequent will is not restored if the subsequent will is canceled by the testator in whole or in the relevant part. If a subsequent will is invalid, inheritance is carried out in accordance with the previous will.

A will can also be revoked by means of an order for its revocation

. An order to revoke a will must be made in the form prescribed for the execution of a will. The rules on the consequences of the invalidity of a subsequent will are accordingly applied to an order to revoke a will: in the event of the invalidity of an order to revoke a will, inheritance is carried out in accordance with this will.

A testamentary disposition in a bank (Article 1128 of the Civil Code) can only cancel or change a testamentary disposition of rights to funds placed in the corresponding bank.

Revoking a will, like the will itself, is a one-sided transaction.

Is it possible to deprive an heir of a share of the inheritance?

Article 1119 of the Civil Code of the Russian Federation allows citizens to independently divide property between family members and loved ones. The will allows you to establish any proportions.

Example: A man owns an apartment, a dacha, a car. In the event of his death, the first priority heirs will be his wife, daughter and son. Each family member will receive 1/3 of the right to housing, a car and a garden house. The citizen is not satisfied with this scheme. He makes a will. The man leaves an apartment and a dacha to his wife, and a car to his children. Thus, the shares of the son and daughter are sharply reduced, but complete exclusion from the procedure does not occur. The rights of a potential widow increase. Moreover, the owner has the right to completely deprive the children of their inheritance. In the will, he will need to specifically indicate the transfer of all valuables to his wife.

Sometimes the rights of heirs are curtailed against the will of the deceased. When distributing assets, the notary is guided by Art. 1149 of the Civil Code of the Russian Federation. He must allocate the obligatory share from the untested part of the property. If such, the assets that the deceased left to specific individuals are not sufficiently used.

Example: After the death of a businessman, he was left with a 3-room apartment in Moscow, 30 million rubles in a bank account, an expensive car and a tiny house in Belgorod. An application for legal inheritance was submitted by an elderly mother and two minor children. After opening the case, the notary read out the will. The man left all his property, with the exception of the house in Belgorod, to a close friend.

The notary assessed the assets. As a result, it turned out that the cost of real estate in Belgorod does not cover the obligatory shares of a retired mother and minor children. As a result, the portion transferred under the will was noticeably reduced.

How can one be disinherited?

The law provides only two ways to remove someone from the procedure: a direct indication in the will or a judicial act. However, in practice, alternative methods are also widely used.

The algorithm looks like this:

Alternative methods are also used in practice. Thus, the court may exclude the spouse from the list of heirs. This happens when relatives raise the question of the fictitiousness or invalidity of the marriage. The arguments for disinheritance are:

• actual loss of legal capacity by the deceased at the time of the wedding;
• mental illness, lack of understanding by the deceased of the meaning of the actions performed;
• the use of threats and violence against the testator for the purpose of marriage;
• close relationship of the spouses.

If the claims are satisfied, the widow or widower loses the right to a share in the property. Achieving a positive decision is not easy. Even incorrect wording of requirements can lead to refusal (decision of the Primorsky Regional Court on dispute No. 33-10896 of October 17, 2016). In a similar manner, other forms of kinship can be challenged - paternity, maternity, blood ties between brothers, sisters, grandparents, grandchildren and granddaughters.

An effective way to exclude citizens from heirs is to appeal a will. The reasons include violation of identification rules, errors and inaccuracies in the text, evidence of coercion of the deceased to sign a document.

Disinheritance procedure

The rules for opening, conducting and terminating cases in connection with the death of citizens are regulated by the Methodological Recommendations of the Federal Tax Service of the Russian Federation No. 03/19 dated March 25, 2019. The regulatory act imposes on the notary the obligation to record all legally significant facts in the Unified Information System.

An entry about unworthy heirs is entered into the database when the applicants submit a court decision or conviction. It is enough for the notary to confirm one of the grounds listed in Art. 1117 of the Civil Code of the Russian Federation. If the document is available, there is no need to additionally go to court with a claim to recognize the citizen as an unworthy heir (clause 19 of Resolution of the RF Supreme Court No. 9).

The submitted act is filed in the file and then stored in the archive. There is no state fee for the service.

On his own initiative, a notary has no right to deprive an unworthy heir of an inheritance. Oral reports from relatives about dishonest behavior are not grounds.

Questions from our readers

Is it possible to challenge disinheritance?
Citizens can file a claim that they were illegally excluded from succession. The statement must indicate the reasons why they believe this. The claim must be accompanied by evidence that the heir did not commit any illegal actions, fulfilled his obligations towards the deceased, or was restored to parental rights. Judicial practice shows that, if there are grounds, the successor can restore his rights.

If the heir was deprived of a part by drawing up a will, then he can file a claim to invalidate the document. Such rights are vested in legal successors. The grounds for annulment of a will cannot be based only on the fact that without it the heir could have his share of the property by law.

In what cases can those deprived of an inheritance receive part of it?

The court may reduce the share of compulsory inheritance, taking into account the financial situation of the legal successors under the law and the will. This applies to situations where an order for payments from the inheritance fund is provided for dependents, minors and disabled relatives.

Successors excluded from the will, but entitled to a compulsory share, will receive only half of what they could have received under the law.

Arbitrage practice

Registration of property rights with a notary always occurs in an indisputable manner. If a conflict breaks out between the participants, it is resolved by district authorities. The practice in cases of deprivation of inheritance is diverse. Hundreds of issues are brought before the courts. We will look at the most common of them.

Committing crimes

Criminal offenses are recognized as an unconditional basis for depriving the rights of an unworthy heir. When making a decision in case No. 2-482/2020 of September 29, 2020, the Sharya District Court of the Kostroma Region did not question the correctness of the offender’s removal from the procedure. The reason was the murder of the testator. No additional evidence or evidence was required.

But the servants of Themis evaluate oral statements critically. Thus, the citizen failed to disinherit his brother. The testimony of witnesses about regular beatings of the deceased mother was considered insufficient evidence (decision on dispute No. 2-1219/2020 dated September 24, 2020).

Illegitimate children

A notary cannot deprive a child of an inheritance due to the parents’ refusal to register the relationship. The basis for the call for distribution of property is a birth certificate indicating the mother/father. If there is a dash in the corresponding column, the name of the adoptive parent or another person, the genetic relationship will have to be proven. The expert opinion becomes a compelling argument. A striking example is the decision of the Saratov City Court of the Nizhny Novgorod Region in case No. 2-1520/2015 dated September 14, 2015.

Missing a deadline

Disinheritance is often caused by neglect of formal rules. If the legal representatives do not submit an application on behalf of the minor on time, the period can be restored through the court. Thus, by resolution No. 66-KG13-8 of November 19, 2013, the RF Armed Forces prohibited the exclusion of a child from inheritance. Violations of deadlines by parents, adoptive parents or guardians cannot be interpreted to the detriment of the interests of children.

Distant relationship

You cannot disinherit a relative who is not listed in any of the queues. Thus, the second cousin managed to defend the right to property. The woman presented a number of certificates from the civil registry office (decision of the Seversky District Court on dispute No. 2-977/17 of May 19, 2017).

Problems of disinheritance by will and law require an integrated approach. If you have any doubts about the integrity of relatives or persons named in the will, sign up for a consultation with us.

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