The right of an incompetent person to inherit, registration of inheritance, rights to inheritance by law and will

Right to inherit by law and will

Legally, the procedure for transferring an inheritance is reduced to its receipt by the relatives of the deceased or those persons whom he indicated in the will. They can receive all his property for which the testator had title documents.

The most important objects in the inheritance are apartments, cars, land plots, as well as securities, jewelry and other things of significant material value.

In the absence of a will, the inheritance will be transferred on the basis of law. In this case, only relatives can apply for it. First of all, these are close relatives - parents, children and spouses of the testator. Typically, property is divided equally between applicants of the same line, but in some cases the wife may claim a larger share. This is related to property that is classified as jointly owned. In such a case, the spouse and spouse are entitled to half of this property each.

If there are no heirs in the first stage of the queue, then the right to inheritance passes to the next relatives and so on.

But there is another way to transfer inheritance - by will. This right of the testator is enshrined in Article 1118 of the Civil Code of the Russian Federation.

Not only relatives can be named in a will. And some relatives may be disinherited by the testator himself. But incapacitated heirs cannot be deprived of the right to inheritance.

You can open an inheritance at the place of last registration of the testator, or at the location of the estate, if the place of registration is unknown. Six months are given to enter into inheritance. If during this time the heirs have not applied to the notary to open an inheritance case and have not entered into the inheritance in fact, they are deprived of the inheritance. You can only restore your rights through the court if there are compelling reasons.

Deadlines for acceptance and their omission

Acceptance of the inheritance is carried out within 6 months. (Part 1 of Article 1154 of the Civil Code of the Russian Federation). If the guardians of the incapacitated person missed the deadline for accepting the inheritance, then it is necessary to go to court to restore the deadline. It is worth remembering that the reasons for missing the deadline must be valid, otherwise refusal is possible.

A guardian should not set out to take possession of the inherited property of an incapacitated ward if he is not a relative and did not support the sick testator while living with him. If there is a will, inheritance is possible, but achieving the goal will not be easy, given the strict control by the state. organs.

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Rights of persons incapacitated upon entering into inheritance

A person who, for a number of reasons, cannot live independently, taking care of himself, is recognized as incompetent and incapable of work. Usually these reasons are related to his age or health condition.

Among the heirs, the following are considered incompetent:

Relatives who have received a disability (must be documented);
Relatives of retirement age receiving a pension;
Minor heirs.

However, heirs who receive a pension but have not reached retirement age are not considered legally incompetent.

If the incapacitated heir lived with the testator for a year and was supported by him, then he has the right to receive a mandatory share in the property, because he will be recognized as a dependent of the testator.

The size of the obligatory share is equal to 50% of the inheritance that he could receive by law. The size does not depend on the method of inheritance - by will or by law. Only a court can increase or cancel the allocation of such a share, based on a claim by representatives of an incapacitated citizen. The court will take into account the financial situation of the incapacitated heir, his living conditions and dependence on the testator. If his living conditions and financial level are sufficient, and his share in the inheritance is small, then the court may completely cancel his right to inheritance.

Determination of legal capacity by a notary

If, at the time of certification of the will, a lawyer has doubts about a person’s legal capacity, he can easily refuse to provide the service. There are several points that explain the refusal to cooperate due to incapacity in the matter of inheritance:

As a person with a legal education, he understands that he can become a participant in a crime. Criminal liability does not depend on the status of a citizen. Acceptance of the document may result in the loss of your job and title.
In any case, the document can be challenged by other participants during the court hearing. If a specialist confirms that at the time of legal capacity the citizen was in serious condition, the inheritance of the incapacitated person may lose its validity. This will negatively affect the reputation of the lawyer.

As an introduction, it is worth studying the information about wills and inheritance. It describes in detail the key points when working with citizens who have a hint of incapacity.

The heir may be an incapacitated person or a minor who receives priority.

If the notary has doubts about the adequacy of the testator

Even the client’s usual overexcitement can lead to doubts about incapacity when writing a will. This may be excessive activity or passivity. It is worth paying attention to an unhealthy appearance or inappropriate actions even at the reception stage. It is quite difficult to evaluate actions, since people have individual characteristics of character and mentality. Does a person have the right to refuse – yes.

How does a notary check?

There are several methods that give the notary a lot of information about the client who is sitting in front of him:

Checking documents for incapacity when making a will: a specialist verifies age, full name, age of majority. In rare cases, when a minor applies, the information in the document from the guardianship authorities is additionally verified. It can be received by a married person.
Personal communication with the client before execution of the will: the notary, before signing the will, asks a number of standard questions indicating the adequacy of the client.

If there are obvious signs, the specialist, before signing a will or receiving an inheritance, insists on conducting an examination for incapacity.

Carrying out an examination

In rare cases, when the inheritance situation has gotten out of control, a specialist may make a request to confirm legal capacity. Due to cases of substitution of documents and fraud, the procedure is becoming commonplace. The right of a legally incompetent person to inherit cannot be annulled.

As an example, we can cite a life situation when his relatives or third parties are sitting with the testator. A specialist can also be called to a home or another institution where a person is under the supervision of doctors, etc. The grounds for refusal are specified in Art. 41 Fundamentals of the legislation of the Russian Federation (this point concerns the will).

What to do to ensure confirmation of the testator's capacity

If the testator wants the property and money to be received by a trusted group of people, it is necessary to take all precautions that will help prevent future challenges from other heirs. What to do:

You can undergo a voluntary examination before going to a notary. This will not take more than two days, but will play a key role in the future. An incapacitated person will not be able to transfer his inheritance to those whom he wants.
Obtain a psychological and psychiatric report, which will also indicate the normal state of the testator when expressing his will.

It is advisable not to sign such documents with a fever, in an overexcited state, or in emotions. This will arouse suspicion among the notary and will be the basis for ordering an examination.

Can a legally incapacitated person inherit an inheritance on his own?

As mentioned above, an incompetent heir has the right to receive the testator’s property on an equal basis with other applicants, and in some cases may even receive the right to an obligatory share in the inheritance. In total, there are three options for an incapacitated citizen to become an heir:

Being a relative of the testator, receive an inheritance by law;
By will;
As a dependent of the testator, entitled to an obligatory share.

Incapacitated children, parents and spouses have a priority right to receive an inheritance, since they are heirs of the first priority.

Unlike an ordinary heir, a legally incapacitated heir cannot enter into an inheritance on his own. This should be done by his parents or guardians under the supervision of the guardianship authorities. In the case of children in orphanages and orphanages, government agencies should deal with their inheritance.

The same requirements are defined by law for the inheritance of adult disabled citizens.

Precedents for invalidating a will

Every heir may have doubts about the legality of the will. Often, in order to resolve a conflict, the court orders an examination. If after it it is revealed that the incapacitated citizen left an inheritance while already in the acute phase of mental illness, the likelihood of the will being annulled is high. It is unlikely that the guardian will receive funds in accounts, apartments, cars, etc. You should remember about the heirs of the first stage.

Additionally, information about minors or incapacitated heirs, whose rights are taken into account first, is studied. Complete and reliable information is the main key to success in challenging a beneficial will.

Registration of inheritance

The process of registering an inheritance for an incapacitated person is the same as in the case of other heirs. The only peculiarity is that all statements from a notary are made by his legal representative. Namely:

Draws up an application for inheritance;
Collects documents for the notary;
Receives a certificate of inheritance;
Registers the property rights of the incapacitated person in Rosreestr.

Unlike other heirs, a legally incompetent heir is exempt from paying state fees.

The list of documents for entering into the inheritance of an incapacitated citizen is almost the same as for other heirs:

Death certificate of the testator;
Certificate of place of registration;
Extract on deregistration;
A will, if one has been drawn up, in which the incapacitated heir is indicated;
Disability documents that confirm incapacity;
Decree on guardianship and trusteeship or adoption. This document proves the right of the guardian to represent the interests of the incapacitated heir.

It is important to document the relationship between the heir and the testator or the fact that the testator is maintaining an incapacitated dependent.

The notary also needs to present documents for the property in the estate. These documents must confirm the property rights of the testator to these objects.

If any property was missed, then in order to subsequently include it in the estate, you need to file a lawsuit in court.

Challenging

When there are many heirs in the first order of a will, the question arises of what to do for a person who has been responsible for and caring for an incapacitated person for a long time. The procedure for challenging the rights to property left by the deceased is a common occurrence.

When can you challenge a will?

Article 31 and the Civil Code describe the nuances associated with trusteeship and will. Here you can also find information that neither the incapacitated party nor the trustee has an automatic right to property or funds. It may seem that you won't be able to challenge the will of the deceased, but if you look at the exceptions, the chances of obtaining title to the property may be high.

The guardian is not included in any of the 7 lines of heirs. You can receive property if a citizen provides evidence that the incapacitated person lived at his expense. This means that you need to constantly collect all receipts and certificates in order to present them in court in the future.

The second option for inheritance by a person is if the incapacitated person formalized the inheritance while in health, and the guardian was included in the number of heirs, then he is included in the queue, which gives the right to claim the benefits left behind.

How to challenge a will

Without an experienced lawyer, it is very difficult to resolve the issue of inheritance. Persons who are relatives and participants in the queue protect their right to a will. The main condition that will help to enter into the inheritance struggle is the cohabitation of the guardian and the incapacitated citizen for the last 12 months.

You will need to collect a strong evidence base before going to court. You need to take into account:

Testimony from neighbors who may have seen the guardian and the incapacitated person together.
Receipts and statements indicating the costs of treatment of the ward.

The application is submitted according to the sample and is drawn up with an experienced lawyer.

Who can challenge a will

The law does not establish restrictions regarding challenges. Anyone can file a lawsuit; the question is whether they will win the case. If it was possible to write a will while the deceased still had full legal capacity, then dissenting relatives can submit an application. The closer the relationship, the higher the likelihood of repeated division. The incapacitated heir or first-degree relative has priority.

To do this, it is recommended to study the current legislation regarding the queue of heirs (Article 1146 of the Civil Code of the Russian Federation):

The first line includes children and spouses.
The second includes blood sisters and brothers, grandparents.
The third group includes cousins, uncles and aunts.
To the fourth - great-grandmothers and great-grandfathers.
To the fifth - children of nephews, etc.
By the sixth - cousins \u200b\u200bnephews or grandchildren.
By the seventh - stepchildren, etc.

Guardians, friends and other persons, according to the law, are not on the list of the incapacitated person’s estate, therefore, when recognizing rights, they rely on the order of priority. Every person from the designated category can challenge a will.

In what cases is a will considered invalid?

A will will be declared invalid if:

It was signed under pressure. Doctors decide whether a person can make up or not.
If the citizen has already had deviations, and the examination confirmed this.
If the will of the incapacitated person was signed at the time of legal capacity.

In these cases, the relatives of the deceased disqualify the guardian who participated in the dishonest transaction.

What to do if a will has already been written

There is nothing wrong with the fact that the completed will has already been signed and handed over to the relatives. If it was issued at the time of the deceased’s legal capacity, you can still begin to fight for the benefits left behind.

Before filing an application with the court, it is recommended to collect information about the costs of maintaining the ward during his lifetime, prove that there was cohabitation, etc. Without this, it is impossible to prove involvement in the life of an incompetent person. You can see this in the video about an invalid inheritance order.

Who will receive the inheritance after the death of an incapacitated citizen?

As in other cases of inheritance by law, the property of an incapacitated citizen after his death will be transferred to his close relatives. If they are not there or they refused to accept this inheritance, the next-ranking applicants will be called upon.

But an incompetent person cannot make a will, just as he cannot dispose of his property. Nor can his official representative write a will. But if the will was drawn up before the person was declared incapacitated, then it will have legal force.

The guardian cannot claim the inheritance of the ward by law, only by will.
The disabled person himself, on the contrary, can become the legal heir of the guardian. Facebook

What types of disabilities are there?

The law recognizes several types of incapacity:

age (Article 28 of the Civil Code of the Russian Federation). Any person under the age of eighteen is considered legally incompetent. Legal capacity can be acquired earlier if a person marries before the age of 18. And it can also be canceled if the marriage is declared invalid.
Due to a mental disorder (Article 30 of the Civil Code of the Russian Federation). In this case, a person is recognized as incompetent if doctors and the court determine that he cannot adequately perceive reality and be responsible for his actions. Guardianship is established over a citizen who has lost his legal capacity.

Attention! A person has the full range of his rights and obligations until his incapacity is established by a court and can dispose of his property to the fullest extent.

Video explaining what is considered incapacity and what legal norms govern the process of declaring a person incompetent:

How is capacity related to inheritance?

Legal capacity is an extremely important factor in resolving inheritance issues. If the person for whom the will is written does not have it, then the property is transferred to the guardian and the method of its transfer changes.

If the court proves that the testator is incompetent, then the will may generally be declared invalid, since the person who wrote it may not have been aware of his actions.

If the testator was not himself

After a person's death, his will must be read by a notary in the presence of all persons named in the will.

There are situations when one of the heirs is not satisfied with the terms of the will or the shares of property that are intended for them. In this case, you can try to challenge the will due to the incapacity of the person who wrote it.

If the testator's incompetence has not been recognized previously, it will be extremely difficult to do so after death. The court will need to carefully examine the identity of the deceased, and the relatives will need to prove that his last actions were illegal. This can be done by referring to witness testimony and possible alcohol or drug addiction.

Important! If incapacity is proven, then the existing will loses its force, and the notary begins to distribute the property according to the general rules in order of priority.

How to challenge a will in court if there is a suspicion that the testator was incompetent when drawing it up:

If it concerns the heir

There are also situations when, according to a will, some part of the things goes to a person incompetent. In this case, he has the right to receive the due share, but he himself does not need to do anything for this. The inheritance will be received by the guardian, and all the paperwork will have to be drawn up by a notary.

An incapacitated person will also not be able to fully dispose of the property received under a will. A guardian or parent (if the testator is a minor) will help him with this. If the reason for the lack of legal capacity is age , then after a person reaches 18 years of age, he will be able to manage his inheritance in full.

And to monitor how the guardian or parent uses the inherited property and whether it is for the benefit of the ward will be the guardianship authorities, to which the notary applies immediately after the transfer of rights to the inheritance.

Is the guardian a first-degree heir?

Let us immediately note that it is much easier for a guardian to become an heir by law rather than an heir by will. Most often, guardians are already heirs to one of the queues.

For example, if the ward is the guardian's spouse or parent, then the guardian becomes the heir of the 1st stage. The guardian will become the heir of the second stage if the ward is a grandson, brother or sister.

Guardians who are more distantly related to the ward become successor heirs. In this case, the guardian does not have priority in receiving the inheritance over other heirs.

Reasons why first-priority relatives may be deprived of their rights

Still, there are special conditions under which heirs from the first priority may lose their part of the property:

the person himself submits an application for refusal to the notary. It is not necessary to indicate a reason.
Recognition of the heir as unworthy. This action can only be decided by the courts. The reasons must be very compelling and proven in court. This may be unworthy behavior: forcing other persons to give up their share, increasing the size of the personal part of the property by fraudulent means, refusing to care for the testator and support him during his lifetime.
If the testator himself indicated in the will that he does not want to give part of his property to a certain person. The property will go to him only if he is a compulsory heir.

If a person himself does not want to receive a share of the property due to him, he does not have to write a refusal. He may simply not contact a notary and his rights will automatically be lost after six months.

Basic Concepts

The current legislation of the Russian Federation strictly regulates the relationship that arises between a guardian and a citizen under guardianship.

Based on the norms enshrined in the Federal Law of April 24, 2008 No. 48-FZ “On Guardianship and Trusteeship”, the ward may be an incapacitated citizen. We especially note that in accordance with the norms of the current legislation of the Russian Federation, the rights of incapacitated citizens have a number of restrictions.

Thus, these citizens do not have the right to enter into any transactions, dispose of their property, or perform other duties. These restrictions are established in order to protect incapacitated citizens, since these citizens cannot adequately perceive the world around them and fully assess the consequences of their actions.

Attention! Those who are incompetent include:

citizens whose age has not reached 14 years;
citizens suffering from severe mental disorders and, due to illness, deprived of the ability to adequately perceive reality and fully think.

It should be noted that citizens belonging to the second category are recognized as incompetent only after the court makes an appropriate decision.

Incapacitated citizens are considered particularly vulnerable. In order for these citizens to live a normal life, they need a guardian who will represent the legal rights and interests of these citizens, and also provide proper care and maintenance.

Thus, the guardian is the authorized representative of the incapacitated citizen and has the right to perform various legally significant actions on behalf of this citizen.

Local guardianship and trusteeship authorities have the right to appoint a guardian. When appointing a guardian, the citizen who becomes the ward is asked for consent to the appointment.

The priority right to appointment as a guardian is enjoyed by:

for citizens under 14 years of age - adult brothers and sisters, as well as grandparents;
for citizens declared incompetent by the court - spouse, adult children, brothers and sisters, grandparents.

How to challenge actions committed by a disabled heir

Sometimes notaries or officials performing their duties make omissions, as a result of which legally significant transactions are carried out by incapacitated or partially capable citizens:

acceptance of inheritance;
waiver of property rights and obligations of the deceased;
bequest of personal property.

Each of the listed actions is a unilateral transaction that can be declared invalid in accordance with Art. 171, 172, 175 and 176 of the Civil Code of the Russian Federation.

A transaction subject to cancellation without a trial is called void. This is a legally significant action committed by an incapacitated or minor citizen.

If an application certified by a notary was submitted by a child over 14 years of age or an adult with limited legal capacity, its significance and consequences can only be challenged in court at the claim of a parent or guardian.

To do this, a representative of a person with limited legal capacity must:

File a claim (point out the illegality of the transaction due to your own disagreement with it and ask for it to be declared invalid).
Collect documents confirming the truth of the plaintiff’s words (birth certificate of a minor or court decision).
Submit documents to the district court at the place of residence of the ward.
Support your claims in court proceedings.
Get a court decision.
Send a judicial act to a notary to annul the transaction.

Accepting an inheritance on behalf of a disabled person is an extremely responsible process. The legal representative of such a successor must make decisions taking into account the personal opinion of the ward, which he is not always able to express. Understanding all the nuances of the inheritance procedure in such conditions can be very difficult.

To make your task easier and prevent irreparable mistakes, the guardian or parent of the heir is recommended to shift part of his responsibilities to someone who will promptly warn about possible difficulties and suggest the most optimal way to solve them.

Lawyers of the site ros-nasledstvo.ru are ready to provide support in inheritance cases of any complexity. To contact them, fill out the electronic form and receive a free consultation within five minutes of submitting your request.

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General rules of inheritance

In the absence of a will, the deceased's estate is distributed among the next of kin. Otherwise, the inheritance will be received by the one whose name was indicated by the testator. Any person can become an heir, even if he is not a relative of the deceased.

But what if the family members of the deceased do not agree with the document and do not intend to give the property to a stranger? Nothing can be done in this case, since the legal heirs, if there is a will, are those people whose names are written there.

However, there are exceptions to this rule. In some cases, it is possible to achieve a share of the entire property, but this will require serious reasons. If there are no such grounds, then the only way to obtain property is to challenge the last will of the deceased.

It is also worth considering that the owner of the property may have relatives who, in any case, will receive their “piece of the pie,” even if the testator did not mention them in the document. More details about this will be written below.