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Table of contents

1. Accepted abbreviations
2. General provisions on inheritance law (History of the development of inheritance law. The concept, subject and principles of inheritance law. The concept of inheritance. The content of inheritance legal relations. Subjects of inheritance legal relations. Persons who cannot be heirs. Inheritance. Property that is not part of the inheritance mass. Grounds calling to inherit)
3. Inheritance by will (The concept of inheritance by will. The principle of freedom of the will and its limitations. The form of the will, the procedure for signing and attesting it. Wills equivalent to notarized ones. Closed will. Contents of the will. Appointment and sub-appointment of the heir. Testamentary refusal and testamentary deposit. Mandatory share in an inheritance Confidentiality of a will Cancellation and amendment of a will Invalidity of a will Execution of a will Interpretation of a will Testamentary dispositions of rights to funds in banks)
4. Inheritance by law (The concept of inheritance by law and the conditions for its occurrence. The circle of heirs by law, the procedure for calling them to inherit. Inheritance by disabled dependents of the testator. Inheritance by a surviving spouse. Inheritance in case of adoption. Inheritance by right of representation. Shares of heirs. Inheritance of escheat property)
5. Acquisition of an inheritance (The concept and methods of accepting an inheritance. Unconditional and universal acceptance of an inheritance. Deadline for accepting an inheritance. Consequences of the expiration of the period for accepting an inheritance, the grounds for accepting an inheritance after the expiration of this period. Hereditary transmission. Refusal of an inheritance, types and procedure for its registration. share)
6. Taking measures to protect and manage hereditary property (Goals of taking measures to protect hereditary property. Concept and types of protective actions performed by a notary. Procedure for producing an inventory of hereditary property. Inventory act. Procedure for drawing up an inventory act on the absence of hereditary property. Responsible custodian of property. His rights and obligations, responsibility. Management of hereditary property. Types of hereditary property requiring management. Contract of trust management of hereditary property: parties, procedure for concluding, content, validity period)
7. The procedure for issuing a certificate of the right to inheritance (Place and time of opening of the inheritance, their significance. The procedure for accepting an application for the right to inheritance. The term for issuing a certificate of the right to inheritance. The certificate of the right to inheritance. Additional certificates. The procedure for issuing a certificate of the right to inheritance to the state State duty paid for the issuance of a certificate of the right to inheritance Taxation of property passing to citizens in the order of inheritance)
8. Conflict issues related to inheritance (The procedure and terms for the division of inheritance property between heirs. The procedure for concluding an agreement on the division of an inheritance, which includes real estate. Features of the division of indivisible things that are part of the inheritance, household items and furnishings. Protection of the interests of the unborn heir , minor children, incompetent citizens in the division of hereditary property. Responsibility of heirs for the debts of the testator. Compensation for expenses caused by the death of the testator, and expenses for the protection of hereditary property)
9. Inheritance of certain types of property (General provisions for the inheritance of certain types of property. Inheritance of rights associated with participation in business partnerships, companies, production cooperatives. Inheritance of rights associated with participation in consumer, housing and construction cooperatives. Inheritance of enterprises. Inheritance of property of a member of a peasant (farm) ) farms, terms of payment to the heir of his share. Inheritance of things with limited transferability. Inheritance of land plots. Peculiarities of the division of land plots transferred to citizens by inheritance. Inheritance of unpaid amounts provided to a citizen as a means of subsistence. Inheritance of property provided to the testator by the state or municipal education on preferential terms Inheritance of state awards, honorary and memorable signs Features of inheritance of winnings Inheritance of copyrights)

Constitution - The Constitution of the Russian Federation (adopted by popular vote on December 12, 1993)

GC - Civil Code of the Russian Federation: part one of November 30, 1994 No. 51-FZ; part two dated January 26, 1996 No. 14-FZ; part three of November 26, 2001 No. 146-FZ; part four of December 18, 2006 No. 230-FZ

Liquid crystal - Housing Code of the Russian Federation dated December 29, 2004 No. 188-FZ

ZK - Land Code of the Russian Federation dated October 25, 2001 No. 136-FZ

CAO - Code of the Russian Federation on Administrative Offenses dated December 30, 2001 No. 195-FZ

NK - Tax Code of the Russian Federation: part one dated July 31, 1998 No. 146-FZ; part two dated August 5, 2000 No. 117-FZ

UK - Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ

Criminal - Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ

Fundamentals of legislation on notaries - Fundamentals of the legislation of the Russian Federation on notaries (approved by the Supreme Council of the Russian Federation on February 11, 1993 No. 4462-1)

Topic 1. GENERAL PROVISIONS ON INHERITANCE LAW

1.1. History of the development of inheritance law

In the early stages of the formation of human society, the norms of inheritance as such did not mediate the relations between individual members of society associated with death. And this is quite understandable: at the stage of the emergence of society, the needs of people and the means of satisfying them were more than minimal. The need for the existence of rules on inheritance arises only after the appearance of accumulated material goods from one person, representing a more or less significant value. Of course, in that period, hunting and fishing tools passed from father to son; in the possession and use of the clan and tribe, and later - the family, there remained the means of maintaining the hearth, the skins of wild animals, fuel and food supplies, jewelry, signs of belonging to the clan (tribe), except for those that were to be buried with the deceased. But the relations that developed at the same time, of course, could not, for quite understandable reasons, be regulated by legal norms (law as such did not yet exist), they were regulated by moral norms, customs, and traditions; their observance was consecrated and ensured not by measures of state coercion, but by public opinion, primarily by the authority of the most influential members of the clan.

In essence, the emergence and development of the institution of inheritance goes hand in hand with the property and social stratification of society, the establishment of private ownership of the means of production, the emergence of special institutions designed to protect the existing order, which suits those in whose hands the levers of power are located, from possible encroachments. The system of these institutions forms the state, which always performs a protective function in relation to private property and its essential attribute - inheritance.

Inheritance law finds its origins in ancient Roman law. Initially, in ancient Rome, inheritance as a legal institution did not exist: the property of the deceased simply remained in his agnatic family or clan. The development of the legal regulation of inheritance is associated with the emergence of wills.

A will - a concretely expressed outward will of the testator regarding the fate of his property in the event of death - existed along with inheritance without a will or inheritance contrary to a will, that is, contrary to the real will of the testator. In ancient Rome, testators could be adult Roman citizens who were not under someone else's authority, capable and able to communicate not only through facial expressions. A woman could be a testator only with the consent of her guardian. Roman citizens and their slaves, as well as postums (persons conceived during the life of the testator, but not yet born at the time of his death), regardless of kinship with the testator, who were not deprived of hereditary legal capacity, and some legal entities. A will in Ancient Rome had to be the product of the testator's own will, but it could also be made dependent on the consent of a third party (for example, a husband). There was also substitution - the appointment of an additional heir.

Inheritance by law - the most ancient law - fixed the actually existing relations on the basis of agnatic kinship (that is, kinship not by blood, but by subordination to the householder). Children inherited first, then blood relatives up to the sixth degree (the nearest excluded further ones), and finally the surviving spouse. In the Justinian code of laws, the order of inheritance was fixed in four classes:

1) descendants of inheritance using the right of representation;

2) the closest full brothers and sisters ascending along the lines or their children by right of representation; 3) half brothers and sisters by right of representation; 4) all other lateral relatives without limitation of degrees. Inheritance contrary to the will occurred due to the limited freedom of the will established in the interests of the class - this is usually called the class of necessary inheritance.

Close relatives, who had the right to be heirs by law and did not receive even a quarter of the share due to them, could file a complaint against the recklessness of the testator, who left nothing or little to them, and demand the share due by law. Adopted children were only entitled to a compulsory share from the adoptive parent.

In ancient Rome, there was the institution of a legate - a donation made according to a will. In ancient times, it depended on the wording used by the testator whether the legatee acquires a property right by oral or written request of the testator to the heir by will or by law. Initially, legates were not limited to anything, but then there are attempts to limit them.

The acceptance of the inheritance took place according to ancient law - without the possibility of refusal. The term was not set, but the creditors could request the heir, who had the right to ask the court to determine the time for reflection, after this time he was considered to have accepted the inheritance. If the heir died without accepting the inheritance, then his heirs inherited, in other cases, his share passed to the rest of the heirs, called with him at the same time.

Perhaps there was a temporary introduction into the possession of an inheritance: for women pregnant with an heir; for the caregivers of the insane; a minor whose legality of birth is disputed; other disputable heirs who provided security.

The flourishing of private property, its liberation from estate-corporate fetters led to the fact that everything that is capable of making a profit, ensuring the satisfaction of the various needs of people, is gradually becoming the subject of inheritance, with the exception, perhaps, of the person himself, who cannot now be the object of hereditary succession. However, for the approval of these unshakable foundations of modern civilization, it took mankind more than one millennium.

In Soviet times, one of the decrees was called the "Decree on the Abolition of the Right to Inheritance", but even it failed to implement the idea of ​​a complete rejection of inheritance. Nevertheless, there is no doubt that this decree sharply limited the possibility of transferring property by inheritance and reduced the functions of inheritance to social security. However, the practical significance of the document was not great, since the so-called exploiting elements were expropriated, i.e., deprived of their property and without the abolition of inheritance, and the working people continued to own and use the property that formed the basis of their household even after the death of one of the family members. The subsequent development of domestic inheritance law, both in the Soviet and post-Soviet periods, testifies to the gradual abandonment of those restrictions in the field of inheritance that took place in the first years of Soviet power.

1.2. The concept, subject and principles of inheritance law

Inheritance law as a sub-branch of civil law is a set of legal norms governing social relations that arise when the property (property rights) of the deceased passes to heirs in the order of universal succession.

Inheritance law is considered in an objective and subjective sense.

In an objective sense, inheritance law is a set of legal norms governing social relations, which form a sub-branch of civil law. The significance of inheritance law in an objective sense lies in the fact that each person is guaranteed the opportunity to live with the awareness of the fact that all his property will pass after death to his relatives. It follows from this that the subject of this branch of law is civil law relations arising in connection with the opening of an inheritance, the protection, exercise and registration of inheritance rights.

In a subjective sense, inheritance law is expressed in the possibility of a specific subject of civil legal relations to inherit the property of the deceased. In the conditions of the formation of market relations, the consolidation of the right of private ownership of property for citizens, the possibility of disposing of it in case of death at one's own discretion acquires particular relevance. The guarantees of this right are enshrined in Part 4 of Art. 35 of the Constitution, which states that the right to inherit is guaranteed. Since this provision is placed in the article on the right of private property, this rule is not a rule of direct action and refers to sectoral legislation.

The meaning of inheritance law in the subjective sense lies in the fact that the right of inheritance for a particular person arises only if there are grounds specified in the law: the presence of kinship with the testator, including him in the circle of heirs through the testator making a will. Thus, unlike the subject of civil law, the subject of inheritance law is narrower and comes down only to those civil law relations that arise in connection with the opening of an inheritance, the exercise and registration of inheritance rights, and their protection.

Principles of inheritance law. The principles of inheritance law, as one of the relatively independent sub-branches of civil law, are understood as the fundamental principles on which all the rules governing relations regarding inheritance are based. These principles may include the following.

1. The principle of universality of hereditary succession. This is the most important principle of inheritance law; it means that between the will of the testator aimed at ensuring that the inheritance passes precisely to those to whom it will pass, and the will of the heir who accepts the inheritance, there should not be any intermediate links, except in cases expressly provided for by law (for example, if the heir is incapacitated , then the inheritance is accepted for him by his legal representative).

The universality of hereditary succession means that the act of accepting an inheritance extends to the entire inheritance, no matter how it is expressed and whoever has it. Inheritance cannot be accepted in part, under condition or with reservations. In other words, the heir accepts all property and all rights and obligations without any exception, not knowing what is included in the inheritance - the bank deposits of the testator, his shares or his debt obligations.

2. The principle of freedom of will. It is a concrete expression of such principles inherent in civil law as the principle of permissive orientation and the principle of optionality of civil law regulation. This principle means that the testator may dispose of his inheritance in the event of death at his own discretion, or may not dispose of it at all; may leave an inheritance to any subject of civil law; to distribute the inheritance among the heirs at his own discretion; disinherit all or part of the heirs; make special testamentary orders.

In accordance with this principle, the will of the testator, when drawing up a will, its subsequent cancellation or change, must be formed completely freely, no one should either directly or indirectly put pressure on him, taking advantage of the helpless state of the testator, blackmailing him, threatening to harm him or his relatives. etc.

The principle of freedom of will can be limited only in one case, directly provided for by law: the testator cannot, either directly or indirectly, deprive in the will the necessary heirs, the circle of which is provided for by the Civil Code, of the mandatory share due to them, which is reserved for them. At the same time, the law sometimes defines the circle of persons to whom this or that hereditary property cannot be bequeathed. So, only citizens, as well as non-profit organizations, can be recipients of a permanent annuity, but the rights of a recipient of a permanent annuity cannot be transferred to a commercial organization, including by inheritance.

3. The principle of taking into account not only the actual, but also the alleged will of the testator. The operation of this principle is expressed primarily in how the circle of heirs is determined by law, who are called to inherit in the event that the testator did not leave a will, or it was declared invalid, or part of the property was not bequeathed.

In inheritance law, the circle of legal heirs is determined on the basis of the assumption that if the testator himself disposed of his inheritance, he would leave it to one of those who are classified as heirs by law. This largely explains the establishment of the order of calling the heirs under the law to inherit. First, the heirs closest to the testator are called - the surviving spouse, children, parents, and only in their absence, including because they renounced the inheritance, the heirs of a more distant degree of kinship in a direct or lateral line are called. The same criterion is maintained in cases of calling to succession under the law of heirs of subsequent stages. Of course, with this approach, it may happen that an heir will be called to inherit, with whom the testator did not communicate due to some kind of personal hostility, but the legislator focuses not on exceptions to the general rule, but on typical situations, although there may be costs. In addition, the testator can protect himself from being called to inherit unwanted heirs by drawing up a will.

Accounting for the alleged will of the testator also takes place in cases where the rules on the increment of hereditary shares are applied. The testator may indicate in the will another heir in the event that the heir appointed by him dies before the opening of the inheritance or renounces it. But if the testator has not done this, the share of the fallen heir will pass to other heirs who are called to inherit by law or by will. This rule was again established on the assumption that this is how the share of the fallen heir would have been disposed of by the testator himself.

4. Principles of permissive orientation and discretion. These principles operate in inheritance law not only in relation to the testator, but also to the heirs, who, if they are called to inherit, are given freedom of choice: they can accept the inheritance, but they can also refuse it, moreover, if the heirs neither directly nor indirectly express a desire to accept the inheritance, it is considered that they refused it. The will of the heir must not depend on any influence of other persons, regardless of whether this influence is aimed at accepting or refusing to accept the inheritance. In the event of pressure, the will of the heir may be declared invalid on the grounds for declaring transactions invalid.

5. The principle of protecting the foundations of law and order and morality, the interests of the testator, heirs, other individuals and legal entities in inheritance relations. This principle in inheritance relations is reflected in a large layer of inheritance law norms, being, as it were, the outline of the industry. For example, it is enough to recall in this connection the removal of unworthy heirs from inheritance, which is carried out primarily in order to protect the foundations of law and order and morality.

The protection of the interests of the testator is ensured by observing the secrecy of the will (Article 1123 of the Civil Code), interpreting the contents of the will exactly as the testator intended at the time of drawing up the will, and fulfilling all legally binding instructions of the testator regarding the inheritance. Equally important is the protection of the interests of the heir, including in relations where heirs, in accordance with the universality of hereditary succession, act as obligated persons.

Among other individuals and legal entities whose interests are subject to protection, one should name the creditors of the testator, as well as legatees, trustees, etc.

6. The principle of protecting the inheritance itself from anyone's unlawful encroachments. In inheritance law, this principle is enshrined in Art. 1171 of the Civil Code, it is also embodied in a system of norms that ensure the protection of the inheritance and its management, reimbursement of related expenses, division of property between heirs, etc.

Measures for the protection of the inheritance are: 1) an inventory of the inheritance property; 2) valuation of hereditary property; 3) making a notary's deposit of cash included in the estate; 4) transfer to the bank under a storage agreement of currency values, precious metals, stones and products made from them; 5) trust management of property.

The presence of all the listed principles, which are characteristic only for this section of civil law, gives sufficient reason to believe that there is a relatively independent subdivision of the branch of law - a sub-branch that can later develop into an independent industry.

1.3. The concept of inheritance. The content of inheritance legal relations

Article 1110 of the Civil Code, which is called "Inheritance", however, does not provide a definition of inheritance. According to clause 1 of this article, upon inheritance, the property of the deceased (inheritance, hereditary property) passes to other persons in the order of universal succession, i.e. in an unchanged form as a whole and at the same moment, unless it follows from the rules of this Code otherwise. Thus, this paragraph of this article is based on the provision of constitutional law.

Considering this fact, A. A. Rubanov rightly notes that although this part of the article grammatically consists of one sentence, from a legal point of view it contains three legal norms. The first establishes that the property of the deceased passes to other persons, and also qualifies this transfer as inheritance. The second decides three questions: first of all, it determines that the transfer of property mentioned in the previous rule takes place by succession; then she qualifies this succession as universal; finally, she points out the signs of universal succession. The third norm provides that the Civil Code may contain rules according to which exceptions from the provisions contained in paragraph 1 of Art. 1100 GK. All three legal norms serve as a civil law form for the implementation of the provisions of Russian constitutional law. Thus, inheritance can be defined as follows: this is a civil law relationship that arises in connection with the death of a citizen and its content has a procedure for the transfer of rights to the property of the deceased to his heirs on an appropriate basis in the manner prescribed by law.

So, the property of a citizen becomes the property of the deceased only as a result of his death, i.e. due to the same legal fact with which the Civil Code connects the termination of the civil legal capacity of this individual (according to the norm of paragraph 2 of article 17 of the Civil Code, the legal capacity of a citizen is terminated by death). Since the legal fact that terminates legal capacity is at the same time a legal fact that initiates inheritance, the legal capacity of a citizen has a special property - to terminate with the subsequent onset of inheritance. Accordingly, the inherent property of inheritance is to begin after the termination of the legal capacity of an individual. Both noted rules of the Civil Code are imperative in nature: death by virtue of law necessarily terminates legal capacity, and the property of the deceased by virtue of law is just as necessarily transferred to other persons.

The content of inheritance relations. The composition of the hereditary legal relationship is formed by the elements that make up this relationship: subjects, object and content. The content of the inheritance relationship is understood as the totality of the rights and obligations of its participants. In this regard, the inheritance relationship, according to a significant number of theorists of this area of ​​law, goes through two stages. The first stage begins from the moment the inheritance is opened, when the heir is called to inherit. In this case, the right of the heir to accept or not to accept the inheritance is the obligation of other persons not to interfere with this right, as well as the obligation of the relevant persons to assist in every possible way in the exercise of this right. If the heir accepts the right to accept the inheritance, then the second period begins for him - the right to the inheritance, and in this case, not only rights, but also obligations pass to the heir. Starting from this moment, the heir will enter into various kinds of relationships that are inextricably linked with his right to inheritance. This may be relations with other heirs, with tax, financial authorities, authorities for registering rights to real estate and transactions with it, with many other services of the most diverse levels.

1.4. Subjects of inheritance legal relations

Speaking about the subjects of hereditary legal relations, first of all it should be noted that they are divided into three groups: 1) subjects-heirs; 2) subjects-heirs; 3) officials assisting inheritance.

Inheritors. This group of subjects of inheritance legal relations is divided depending on the grounds for the transfer of rights to inherited property after the death of the testator. Since, according to the norm of Art. 1111 of the Civil Code, inheritance is carried out by will and by law, then two types of subjects can be distinguished: 1) testators by law; 2) testators under a will.

The testator under the law can be a legally capable natural person, both with and without civil capacity. According to Art. 17 of the Civil Code, civil legal capacity, that is, the ability to have civil rights and bear obligations, is recognized equally for all citizens. The legal capacity of a citizen arises at the moment of his birth and ends at death. As for the legal capacity of a citizen, according to the norm of Art. 21 of the Civil Code is the ability by one's actions to acquire and exercise civil rights, create civil obligations for oneself and fulfill them. The legal capacity of a citizen in full, as a rule, arises with the onset of his majority, that is, upon reaching the age of eighteen. According to the norm of paragraph 1 of Art. 29 of the Civil Code, a citizen who, due to a mental disorder, cannot understand the meaning of his actions or control them, may be recognized by the court as incompetent in the manner prescribed by civil procedural legislation. He is placed under guardianship. However, this circumstance does not exclude him from the subjects of hereditary relations: the property of such a citizen passes in the order of inheritance to his relatives of the corresponding order called for inheritance.

The testator who wants to dispose of his property in case of death is subject to more stringent requirements: he must have both legal capacity and full legal capacity. A citizen who has not reached the age of 18, who does not have legal capacity on other grounds provided for by law (marriage, emancipation), cannot leave a will. This provision is enshrined in paragraph 3 of Art. 1118 of the Civil Code, which states that a will must be made in person. Making a will through a representative is not allowed. How can this imperative requirement be correlated with the rule of paragraph 2 of Art. 29 of the Civil Code, which states that on behalf of a citizen recognized as legally incompetent, transactions are made by his guardian and such transactions are accordingly valid. Article 29 of the Civil Code does not provide for the possibility of any exceptions and exemptions from this rule. Based on the literal interpretation of this paragraph of Art. 29, it can be concluded that the guardian on behalf of the incapacitated person can draw up a will, but this conclusion will be incorrect. The fact is that the personal nature of the will implies the handwriting of its signing by the testator, which was enshrined in paragraph 3 of Art. 1125, paragraph 2 of Art. 1126, paragraph 2 of Art. 1127 GK. At the same time, the legislator does not allow any time intervals between the signing of the will by the testator and the certification of the will.

The requirement that the testator must sign a will in the presence of the person certifying this will follows from paragraph 2 of Art. 1127 of the Civil Code and Art. 44 Fundamentals of legislation on notaries. At the same time, the legislator provided for an exception from the general rule of handwriting of the testator's signing of the will, indicating that in certain situations it is allowed to sign the will instead of the testator by another citizen. The list of cases in which a will can be signed by another person is defined by law (clause 3 of article 1125 of the Civil Code) and is limited. A will can be signed by another citizen only when the testator, due to physical disabilities, serious illness or illiteracy, cannot personally sign the will.

The choice of the person who will sign the will (executor) is made by the testator himself. Since a person declared incompetent is not able to understand the meaning of his actions and direct them, then, accordingly, he cannot choose a person who will sign his expression of will for him, and he also cannot express the expression of will itself, since the latter will be illegitimate. In case of violation of the rule on the personal nature of the will, it is declared invalid and the mechanism of inheritance by law is activated.

It should be noted that since a will is a unilateral transaction, since for its execution it is necessary and sufficient to express the will of one party (clause 2 of article 154 of the Civil Code), it, like any other transaction, can be declared invalid on the grounds provided for in Art. 168-172, 175-179 GK. Judicial practice shows that the most common ground for recognizing a will as invalid is the ground provided for in Art. 177 of the Civil Code: the will was made by a citizen who is unable to understand the meaning of his actions or manage them.

Heirs. In contrast to the previously considered group of subjects of inheritance law, the circle of subjects-heirs is wider, and they can be: 1) individuals; 2) legal entities; 3) The Russian Federation, subjects of the Russian Federation, municipalities, foreign states and international organizations. At the same time, it should be noted that legal entities, constituent entities of the Russian Federation, municipalities, foreign states and international organizations can act as heirs only by will, and individuals and the Russian Federation - both by law and by will.

1. Heirs - natural persons. Natural persons can be heirs both by law and by will: citizens of the Russian Federation, foreign citizens, stateless persons. As an element of civil legal capacity, the right to inherit arises from the moment of birth (Article 18 of the Civil Code). However, the law also protects the interests of unborn children (nascituruses) conceived during the life of the testator and born alive after the opening of the inheritance. They can be not only the children of the testator, but also other relatives (in case of inheritance by law) and even any other persons (in case of inheritance by will). If the child was born dead, then he cannot be called to inherit and his share is distributed among the rest of the heirs.

The possibility of inheritance is not determined by the amount of legal capacity of a citizen. Minors, incapacitated, persons with limited capacity may become heirs.

Only those citizens who are alive on the day of the opening of the inheritance can be called to inherit. There is no hereditary succession if the persons who are each other's heirs die on the same day (commorientations).

2. Heirs - legal entities. According to the norm par. 2 tbsp. 1116 of the Civil Code, legal entities existing on the day of opening the inheritance may be called upon to inherit by will. Legal entities can inherit regardless of their organizational and legal form, although it is more likely that a will is made in favor of a non-profit organization (museum, educational institution, etc.). The only condition for their calling to inherit is the existence on the day of the opening of the inheritance. A legal entity is considered to have ceased to exist after an entry about it is made in the unified register of legal entities (clause 8, article 63 of the Civil Code). If the legal entity to which the testator bequeathed the property is liquidated, the will is not taken into account by the notary, and the property is inherited by law.

The testator, having drawn up a will, can bequeath to a legal entity both all property and part of it. A legal entity, like a citizen, has the right to refuse inheritance.

3. Heirs - public entities. Public entities can also be heirs by will: the Russian Federation, subjects of the Russian Federation, municipalities and foreign states. Moreover, as noted earlier, unlike other public entities, the Russian Federation can inherit not only by will, but also by law. In accordance with Art. 1151 of the Civil Code, escheated property passes to the Russian Federation in the order of inheritance.

International organizations can act as testamentary heirs. They have a special legal status as subjects of public international law. There are two types of international organizations: intergovernmental and non-governmental. It seems that the legislator had in mind, first of all, international non-governmental organizations, which include, in particular, the International Committee of the Red Cross, Amnesty International, Greenpeace. These organizations are non-profit in nature and funded mainly by citizens, so it is likely that a will will be made in their favor.

Officials who promote succession. First of all, this is a notary whose duties include certification of the will, interpretation, clarification of the rights and obligations of the testator, heirs and other persons present during the preparation, acceptance, opening of the inheritance, taking measures to protect the inheritance and manage it, issuing a certificate of the right to inheritance.

The subjects of inheritance law are also persons who have the right to certify wills if it is not possible to invite a notary - chief doctors (and their deputies) of medical institutions, ship captains, heads of expeditions, commanders of military units, heads of places of detention.

Witnesses present at the drawing up, signing and certification of a will are also subjects of inheritance law. According to the norm of paragraph 2 of Art. 1124 of the Civil Code cannot be such witnesses and cannot sign a will instead of a testator:

1) a notary or other person certifying a will;

2) 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;

3) citizens who do not have legal capacity in full;

4) illiterate;

5) citizens with such physical disabilities that clearly do not allow them to fully realize the essence of what is happening;

6) persons who do not have sufficient knowledge of the language in which the will is drawn up, except for the case when a closed will is drawn up.

Another category of citizens who contribute to inheritance - executors of the will - play a special role in inheritance. They can be not only the heir, but also other persons with their consent to be the executor. The duties of such a person include ensuring the transfer to the heirs of the inheritance property due to them; taking, independently or through a notary, measures to protect the inheritance and manage it in the interests of the heirs; receipt of funds and other property due to the testator for transfer to their heirs.

1.5. Persons who cannot be heirs

Inheritance law provides for a mechanism for protecting the rights of the testator even after his death and contains the institution of unworthy heirs, who either do not have the right to inherit, regardless of whether they are recognized by the court as unworthy heirs, or are removed from inheritance for unworthy behavior. Thus, unworthy heirs are divided into two categories: 1) persons who do not have the right to inherit; 2) persons who may be excluded from inheritance by a court.

1. According to the norm of paragraph 1 of Art. 1117 of the Civil Code do not inherit either by law or by will citizens who, by their deliberate illegal actions directed against the testator, one of his heirs or against the implementation of the last will of the testator, expressed in the will, contributed or tried to contribute to the calling of themselves or other persons to inheritance, or contributed or tried to contribute to an increase in the share of the inheritance due to them or other persons, if these circumstances are confirmed in court. However, citizens to whom the testator bequeathed property after their loss of the right to inherit, have the right to inherit this property.

The unlawful actions of these persons must be confirmed by a court verdict that has entered into force. As follows from paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 1991 No. 2 "On some issues arising from the courts in cases of inheritance", illegal actions that are established by a court verdict are the basis for deprivation of the right to inherit only with intentional the nature of these actions. This rule does not apply to persons convicted of a crime through negligence.

It is important to note that persons who have committed socially dangerous acts in a state of insanity are not recognized as unworthy heirs, since they were deprived of the opportunity to be aware of their actions or control them. In this case, the court does not issue a sentence, but a ruling on the release of a person from criminal liability.

Does the motivation for illegal actions committed against the testator have legal significance? The answer to this question is not as simple as it might seem at first. There is a point of view that the motive for committing the relevant actions is quite clearly fixed in paragraph 1 of Art. 1117 of the Civil Code: they are committed in order to achieve such a fate of hereditary property that would meet the interests of the persons committing them, which would be beneficial to them one way or another. If intentional illegal actions are committed for other reasons (for example, out of revenge, feelings of jealousy) and are not aimed at accelerating the opening of the inheritance, achieving the desired distribution of inherited property, etc., then, even if objectively, they entailed such consequences , these actions cannot serve as a basis for classifying the heir as unworthy.

In addition, parents do not inherit by law after children in respect of whom the parents were deprived of parental rights in a judicial proceeding and were not restored to these rights by the day the inheritance was opened.

2. According to the norm of paragraph 2 of Art. 1117 of the Civil Code, at the request of the interested person, the court removes from inheritance under the law citizens who maliciously evaded the fulfillment of their legal obligations to support the testator.

A person who does not have the right to inherit or is excluded from inheritance is obliged to return in accordance with the rules of Ch. 60 of the Civil Code, all property unjustifiably received by him from the composition of the inheritance, i.e., according to the rules for fulfilling obligations from unjust enrichment.

The provisions on the deprivation of inheritance rights of unworthy heirs also apply to heirs who have the right to a mandatory share in the inheritance, which is provided for in Art. 1149 GK.

In addition, beneficiaries (Article 1137 of the Civil Code) specified in the will are deprived of the right to demand the execution of their rights if they, by their deliberate illegal actions directed against the testator, any of his heirs or against the implementation of the last will of the testator, expressed in the will, contributed or tried to promote the calling of themselves or other persons to inherit, or contributed or tried to promote an increase in the share of the inheritance due to them or other persons, if these circumstances are confirmed in court. In the case when the subject of the legacy was the performance of certain work for the unworthy legatee or the provision of a certain service to him, the latter is obliged to compensate the heir who executed the legacy for the cost of the work performed for the unworthy legatee or the service rendered to him.

1.6. Inheritance. Property that is not part of the estate

Inheritance, or hereditary mass, is one of the basic legal concepts of inheritance law. The content of this concept is devoted to Art. 1112 GK. Inheritance is one of the types of objects of civil rights. However, it differs from other objects: inheritance is an object of civil rights of a local nature; it is present only in the field of inheritance law. The general provisions of the Civil Code, dedicated to the objects of civil rights, do not mention inheritance (for example, Articles 128-149 of the Civil Code).

The legal norm on inheritance limits the composition of inheritance to four types of objects: 1) things; 2) property rights; 3) property obligations; 4) other property.

Things. Things are understood as objects of the material world created by both man and nature that satisfy certain human needs. A special kind of things are money and securities. Things can be systematized in various ways.

1. Individually defined things and things defined by generic characteristics (generic things) are singled out. The first have features by which they can be distinguished from other similar things. The latter are characterized by number, weight, other units of measurement, that is, they represent a known number of things of the same kind.

An individually-defined thing, unlike generic things, is legally irreplaceable, and therefore its death frees the obligated person from transferring it to the authorized subject in kind. Consequently, the obligation, the subject of which is an individually defined thing, terminates from the moment of the destruction of such a thing. The Civil Code lists several types of consequences of failure to fulfill the obligation to transfer an individually defined thing (Article 398 of the Civil Code) and generic things (Article 463 of the Russian Federation), and these consequences differ significantly from each other. This shows the significance of dividing things into individually defined and generic. In addition, this kind of division of things also makes sense for determining the legal nature of the contract, the subject of which is a thing. For example, only generic things can be the subject of a loan, and only individually defined things can be the subject of leases and purchase and sale of real estate.

2. Things are also divided into consumable and non-consumable. Consumables are such things, in the process of using which they lose their consumer properties completely or in parts, they simply cease to exist outside (food, cosmetics, medicines, film and photographic film, etc.). Non-consumable items include those that, when used for their intended purpose, depreciate over time, wear out gradually, over a fairly long period, and do not disappear completely (machinery, equipment, buildings and structures, household appliances, etc.).

3. Allocate things created by human labor, and things created by nature, that is, having a natural origin. So, depending on the origin of a thing, the Civil Code determines the grounds for acquiring ownership, the legal nature of the contract (the subject of a contract contract can only be agricultural products grown (produced) by the manufacturer, and supply contracts can be any goods), the rules for the transferability of things.

Property rights. Property rights are understood as the rights of claim (arising from membership in economic societies and partnerships, production cooperatives, etc.). In the sphere of recent changes in the legislation governing equity participation in housing construction, the inclusion of property rights in the composition of the estate is of particular importance. The Federal Law of December 30, 2004 No. 214-FZ "On Participation in Shared Construction of Apartment Buildings and Other Real Estate and on Amendments to Certain Legislative Acts of the Russian Federation" confirms the right of the heirs of a deceased participant in a shared construction agreement to enter into this agreement. It follows from the general rules on the contract that the content of the contract, in addition to the subject and the object, consists of the mutual rights and obligations of the parties (if any remain at the time of acceptance of the inheritance), so we can say that the heirs are, respectively, creditors and debtors of the developer. Since the rights and obligations of the initial participant in the shared construction agreement - the testator - are property in nature, respectively, these rights are included in the inheritance mass. From this it follows that from the moment of acceptance of the inheritance in accordance with the procedure established by law, the heir acquires the right to demand the transfer of ownership of the constructed real estate object to him in accordance with the shared construction agreement, but at the same time the burden of fulfilling the obligation is placed on him, and above all the obligation to pay the price of the shared construction object agreed upon by the agreement.

In order for the heir to become the right holder under the agreement on participation in shared construction, he must accept the inheritance. The act of accepting an inheritance means accepting all the inheritance due to him, no matter what it consists of and wherever it is located. At the same time, the heir may not be aware of the property rights belonging to him (for example, the rights arising from the contract of participation in shared construction concluded by the testator), however, the acceptance of the rest of the inheritance also implies the acceptance of property that the heir does not know about.

property responsibilities. Under the property obligations are understood the debts of the testator to both individuals and legal entities, the state, the obligation to pay which the testator arose from contracts, court decisions, acts of state authorities. Currently, various types of bank loans (consumer, commodity, car loans and mortgages) are becoming more and more popular and in demand. In such a state of affairs, the legislator's indication that property obligations do not terminate in connection with the death of the debtor, but are included in the composition of the estate, acquires special significance.

Other property. Speaking about other objects of civil law that may be included in the estate, first of all it should be noted that in connection with the adoption of part four of the Civil Code, the norm of the first part of the Code, namely Art. 128, which contains a list of objects of civil legal relations and inheritance, in accordance with the Federal Law of December 18, 2006 No. 231-FZ, from January 1, 2008, will be presented in a new edition, and in addition to the objects of civil law and inheritance legal relations already considered by us in its composition includes protected results of intellectual activity and equated means of individualization (intellectual property). According to the norm of Art. 1225 of the fourth part of the Civil Code intellectual property are:

1) works of science, literature and art;

2) programs for electronic computers (computer programs);

3) databases;

4) performance;

5) phonograms;

6) communication on the air or by cable of radio or television programs (broadcasting of on-air or cable broadcasting organizations);

7) inventions;

8) utility models;

9) industrial designs;

10) selection achievements;

11) topology of integrated circuits;

12) production secrets (know-how);

13) trade names;

14) trademarks and service marks;

15) names of places of origin of goods;

16) commercial designations.

But not the above results of intellectual activity in themselves can act as objects that are included in the composition of the hereditary mass. Intellectual rights are recognized on the results of intellectual activity and equated means of individualization, which include an exclusive right, which is a property right, and in cases provided for by law, also personal non-property rights and other rights, such as the right to follow, the right of access, etc. Contents The exclusive right means that a citizen who has the exclusive right to the result of intellectual activity or to a means of individualization (right holder) has the right to use such a result or such means at his own discretion in any way that does not contradict the law. According to the current legislation, the right holder has the right to:

1) dispose of the exclusive right to the result of intellectual activity;

2) dispose of the exclusive right to the means of individualization, which means that they have the right to transfer it under any paid contract, to receive profit from its reproduction, publication, replication, etc.;

3) at its own discretion, allow or prohibit other persons from using the results of its intellectual activity or means of individualization.

Thus, intellectual property rights include property rights and personal non-property rights. It is necessary to give an unambiguous answer to the question whether the intellectual right itself can be included in the composition of hereditary property? In accordance with paragraph 2 of Art. 1228 of the Civil Code, the author of the result of intellectual activity owns the right of authorship, as well as the right to a name and other personal non-property rights. The legislator prohibits the inclusion of these personal non-property rights in the composition of the inheritance: according to the norm of par. 2 p. 2 art. 1228 of the Civil Code, the right of authorship, the right to a name and other personal non-property rights of the author are inalienable and non-transferable. But the exclusive rights of a property nature can be transferred to persons other than the copyright holder, which is provided for by a number of norms of part four of the Civil Code, for example, Art. 1241 of the Civil Code, which stipulates that the transfer of the exclusive right to the result of intellectual activity or to a means of individualization to another person without concluding an agreement with the right holder is allowed in cases and on the grounds established by law, including in the order of universal succession (inheritance, etc.) ; paragraph 5 of Art. 1232 of the Civil Code, which states that the basis for state registration of the transfer of the exclusive right to the result of intellectual activity or to a means of individualization by inheritance is a certificate of the right to inheritance; Art. 1283 of the Civil Code, which states that the exclusive right to a work is inherited.

Thus, summing up, we can say that the composition of the inheritance (inheritance mass, hereditary property) may include:

1) things;

2) property rights;

3) property obligations;

4) exclusive rights to the result of intellectual activity or a means of individualization, with the exception of the right of authorship, as well as the right to a name and other personal non-property rights.

Property that is not part of the estate. From the general part of civil law, we remember that the objects of civil rights are not limited to the above. It is necessary to determine whether all objects of civil law can be included in hereditary property. The legislator in Art. 1112 of the Civil Code expressly states that the inheritance does not include rights and obligations that are inextricably linked with the personality of the testator, in particular the right to alimony, the right to compensation for harm caused to the life or health of a citizen, as well as rights and obligations, the transfer of which in the order of inheritance is not permitted by law. For example, in accordance with Art. 1185 of the Civil Code, state awards awarded to the testator and to which the legislation on state awards of the Russian Federation applies, are not part of the inheritance.

Personal non-property rights and other intangible benefits are not included in the inheritance. Personal rights and benefits include those listed in Art. 150 of the Civil Code, however, by virtue of the direct indication of this article, personal non-property rights and other intangible benefits that belonged to the deceased may be exercised and protected by other persons, including the heirs of the right holder. We are talking about such rights that were significant for the deceased and are important for family members and other persons: the right to honor and good name, business reputation, privacy, personal and family secrets, etc.

1.7. Grounds for calling to inheritance

In accordance with Art. 1111 of the Civil Code, inheritance is carried out on two grounds: by law and by will. This norm, in essence, is the content of the principle of inheritance law that we considered earlier - taking into account not only the actual, but also the alleged will of the testator (see section 1.2).

Inheritance by will is carried out only when the testator leaves a will in the manner prescribed by law, in which the will is expressed regarding the fate of the property belonging to him. At the same time, he can dispose of either all his property or part of it.

Inheritance by law takes place when it is not changed by the testator, as well as in other cases provided for by law, namely:

1) the testator, by will, has deprived all of his heirs by law of the order that, in the absence of a will, would be called to inherit, without indicating other heirs. In this case, the next succession of heirs is called to inherit;

2) the court declared the will invalid in whole or in part;

3) only part of the property has been bequeathed;

4) the heir under the will died before the opening of the inheritance, without having time to accept it;

5) the testator in his will violated the requirements for the mandatory share;

6) the heir under the will is removed from the inheritance as unworthy.

When inheriting by law, the property of the testator is divided among all the heirs of the queue called for inheritance in equal shares.

The transfer of the rights and obligations of the testator to his heirs is carried out in the order of succession. Acceptance of an inheritance under a condition or with reservations is not allowed. An inheritance can only be accepted as a whole, it may even include such rights and obligations of the testator that the heirs had no idea about. However, they cannot accept only any part of the inheritance, for example, the right to own an apartment, but refuse to accept the rights and obligations under the author's agreement.

Thus, the institution of inheritance has a special meaning, which consists in the fact that each person is guaranteed the possibility of transferring to the inheritance both by will and by law after his death his property, which he has acquired throughout his life. The procedure for the transfer of hereditary property established by law gives the testator the right to determine in advance the legal fate of his property, which contributes to the stability and predictability of property relations.

Topic 2. INHERITANCE BY WILL

2.1. The concept of inheritance by will

Currently, the domestic legislator has not given a legal definition of a will. The absence or insufficiently precise definition of this concept is characteristic not only of Russian law, but also of the law of other states, so we must derive the concept of a will on the basis of a doctrinal and systematic interpretation of the rules of law.

A will is a personal disposition of a citizen about his property in case of death with the appointment of heirs, made in the form prescribed by law and certified by the persons specified in the law. The term "will" is used in two meanings: a will is recognized as the document itself, in which the will of the testator finds expression (i.e., a certain form of expression), and the act of the direct will of the testator, which, in turn, implies the presence of two more factors - intellectual and volitional. Thus, conditionally drawing up a will can be divided into three points: 1) intellectual; 2) strong-willed; 3) formal.

The intellectual moment of the testament is the realization, understanding by the testator of the essence of what is happening. In other words, the testator is aware of the legal meaning of the will, the legal consequences of the action he takes to dispose of his property in the event of death; he understands that the whole complex of his rights in rem will pass to the persons indicated by him, and they will replace him as right holders or bearers of obligations in respect of legal relations arising at his will regarding his property. The volitional moment of the will is connected with the intention of the testator to distribute property among these heirs in this and not in another order, in such shares and in this way and not otherwise. Finally, the formal moment of the will is connected with the purely technical process of drawing up, certifying the will, accepting it for storage, subsequent announcement and execution of all necessary actions in relation to the heirs and inheritance property to legally secure their status.

So, a will is defined as a disposition of a citizen of his property in case of death, made and executed in accordance with the requirements of the law for wills. Two things should be emphasized here. Firstly, a will is a unilateral transaction, whose action is timed to coincide with the death of the testator (paragraph 5 of article 1118 of the Civil Code). Secondly, the will must be made in the form prescribed by law.

Based on the analysis of the content of the norms of the third part of the Civil Code, the essential elements of the will should include: a) the will of the authorized subject (paragraphs 1-3 of article 1118 of the Civil Code); b) proper registration of the transaction; 3) the presence of a property asset. A defect in any of these elements leads to the invalidity of the entire transaction. It should be noted that at the time of making a will, the fact that the testator has an inheritance mass is not legally significant: the inheritance mass will be made up only of the property (property rights and obligations) that the testator will have and that can be disposed of (i.e., alienable rights), only at the time of the death of the testator.

The random elements of a will include certain types of instructions of the testator: the appointment of an heir, the determination of the shares of heirs in the inheritance, the deprivation of inheritance of legal heirs (exgeredation), the appointment of an executor, the establishment of a legate and conscription, the sub-appointment of heirs and legatees (substitution), other indications that do not contradict the law (change rules for incrementing the shares of fallen heirs (clause 1 of article 1161 of the Civil Code), etc.). The appointment of an heir has ceased to be an essential element of the will: the entire will, as a disposition of the testator's property, can only consist in establishing a testamentary refusal or indicating that all or one of the heirs, according to the law of the queue that will be called to inherit after the death of the testator, is deprived hereditary rights.

A person who makes a will must meet the requirements established by law: at the time of making a will, he must have civil capacity in full. It should be noted that this circumstance is essential precisely at the time of making a will as a unilateral transaction. The loss of legal capacity or its limitation after the making of a will will have its legal consequence only that the citizen is deprived of any subsequent opportunity to influence the fate of the bequeathed property. The situation can change only if, before the death of a citizen, the court recognizes him as fully capable.

The will is purely personal. Its commission through representatives, even directly authorized for this by an interested person, with the help of guardians or trustees, is prohibited by law (paragraph 4 of article 182, paragraph 3 of article 1118 of the Civil Code).

When making a will, a citizen, as a general rule, must reach the age of 18 or acquire legal capacity in full by marriage (clause 2 of article 21 of the Civil Code) or emancipation (article 27 of the Civil Code). Federal legislation on family law does not indicate the age at which marriage can be registered in the registry office. The issue of establishing a lower age limit for the possibility of marriage is assigned to the jurisdiction of the subjects of the Russian Federation. According to the rules of par. 2 p. 2 art. 13 UK, this age, as an exception, may be below 16 years. With regard to emancipated persons, before they reach the age of majority, the law directly indicates the age at which it is possible to acquire full legal capacity - this is 16 years (clause 1, article 27 of the Civil Code). As for the possibility of recognizing the right of minors between the ages of 14 and 18 to make a will, at least with regard to property, for the disposal of which the consent of legal representatives is not required, here one should bear in mind the direct indication of the law to achieve full legal capacity. The law does not provide for any exception for the bequest of certain types of property.

The will will be declared invalid if the citizen at the time of its making was not able to understand the meaning of his actions or manage them (Article 177 of the Civil Code) or made the will under the influence of delusion (Article 178 of the Civil Code). The same should be said about making a will under the influence of deceit, violence, threats, or difficult circumstances (Article 179 of the Civil Code). As long as the testator is alive, he can independently protect his right to freedom of will. The easiest way is to cancel the will made under the specified circumstances, or to draw up a new will. Of course, judicial protection of the violated rights of the testator is also possible.

There are stricter requirements for the form of a will than for other civil law transactions. By the time the will is announced, the testator is no longer alive, so the authenticity of the will, as well as the compliance of its contents with the will of the testator, should not be in doubt.

A will must be in writing. An oral declaration of will of a person made by him in case of death is not recognized as a will and has no legal force. As a general rule, a will must be certified by a notary, a simple written form is allowed as an exception for a will made in emergency circumstances (Article 1129 of the Civil Code).

Special requirements for the form of a will are currently quite justified from the point of view of legal validity, in view of the fact that they can significantly reduce the cases of forgery and falsification of a unilateral transaction - a will. However, the testator is left with sufficient scope to express his last will. And this circumstance, among others, forces notaries, other persons authorized by law to certify a will, not only carefully and with special attention to testify to the real will of the testator, that is, to draw up its external form, but also to explain the essence and legal consequences of the latter.

2.2. The principle of freedom of will and its limitations

So, a will is a transaction that must comply with a certain form. The special requirements for the form of the will, however, do not limit the considerable freedom of the content of the will. Freedom of will is the most important principle of inheritance law. Based on this principle, the will of a person regarding the fate of his property in the event of death must be fully conscious and free from extraneous influence.

Freedom of will consists, first of all, in the free choice of heirs under the will. They can be any person: citizens, including foreign citizens and stateless persons; legal entities, the Russian Federation and subjects of the Russian Federation, as well as municipalities. It should be especially noted that citizens who are heirs by law, and who are not heirs, can be heirs by will.

The testator is free to determine the shares of the heirs. Shares may or may not be specified in the will. There are no restrictions on the choice of methods for determining shares.

One, several or all heirs by law may be disinherited in a will by direct indication of this, and the testator is not obliged to justify his decision, although it may seem unfair in relation to relatives who are heirs by law. If there is such an indication in the will, the heirs by law are deprived of the right to receive inheritance not only according to the will, but also according to the law (with the exception of inheritance of a mandatory share).

Other orders may also be included in the will: subappointment of an heir (Article 1121 of the Civil Code), testamentary refusal (Article 1137 of the Civil Code), testamentary laying on (Article 1139 of the Civil Code).

The freedom of will is also manifested in granting the testator the right to cancel or change it at any time after the preparation of the will (art. IZO GK).

The freedom of will is limited by only one special rule - the rule on the mandatory share (clause 1 of article 1119 of the Civil Code), introduced primarily in the interests of family members and other close relatives of the testator or those persons in respect of whom maintenance relations were established during the life of the testator (art. 1149 GK). By virtue of this circumstance, the limits of the freedom of will are closely connected with the presence of a circle of necessary heirs specified in the law. The maximum restriction of freedom of will may be half of the property of the testator, i.e., in any case, the testator is completely free to dispose of at least half of his property.

The rules on the compulsory share, either in the form of an indication of the "free" part of the inheritance (as the French legislator did) or in the form of an indication of the size of the mandatory share in the inheritance (as is customary in Italian and German inheritance law), are present in almost all laws of developed countries. The purpose of this constraint on the will of the testator is the material support of those persons whom he, by law or of his own free will, supported.

The notary must explain to the testator the rules on the mandatory share, about which he makes an appropriate entry. However, if a citizen insists on a will that violates the rules of Art. 1149 of the Civil Code, then he cannot be refused a will. After all, it is quite possible that by the time the inheritance is opened, the necessary heirs will not remain: someone will reach the age of majority, someone will die, and someone will cease to be a dependent of the testator.

2.3. The form of the will, the order of its signing and certification. Wills equated to notarized

The legislator established the following types of wills:

1) a notarized will;

2) a will certified by an official of an executive body (an official of a local self-government body) authorized to perform notarial acts;

3) a closed will;

4) a will equivalent to a notarized will;

5) testamentary dispositions of rights to funds in banks;

6) will in emergency conditions.

The main type of will is a notarized will, since the law directly states that only in the absence of a notary in the locality, officials of executive authorities authorized to perform notarial acts have the right to certify the will (Article 37 of the Fundamentals of Legislation on Notaries).

As a general rule, a will must be in writing and certified by a notary. The forms of wills are established by the legislator and regulated by the order of the Ministry of Justice of Russia dated April 10, 2002 No. 99 "On approval of register forms for registration of notarial acts, notarial certificates and certification inscriptions on transactions and evidenced documents" (hereinafter - Order of the Ministry of Justice of Russia No. 99).

Testament in emergency circumstances. As mentioned earlier, a simple written form of making a will is allowed, but only as an exception. To recognize the legitimacy of a will drawn up in a simple written form, it is first necessary to make it in emergency circumstances. According to the norm of paragraph 1 of Art. 1129 of the Civil Code in such a state of affairs when a clear threat to the life of a citizen is created, i.e. due to both force majeure (natural disasters, military operations, etc.) and the physical condition of a person (illness, injury, etc.) ), in combination with emergency circumstances that do not allow a citizen to make a will in a different form (territorial isolation and the absence of persons authorized to certify a will), the law allows for the possibility of making a will in a simple written form.

A will made in emergency circumstances must be written and signed by the testator in his own hand, i.e. it is not allowed to write down the will with the help of technical means (electronic computer, typewriter, etc.). In addition, such a will must be signed in the presence of two witnesses. The law, however, does not specify what witnesses must do. Here it is necessary to apply the analogy of the law, since the legislator, in other similar circumstances, explains the obligations of witnesses present at the drawing up of the will (paragraph 4 of article 1125 of the Civil Code). At the same time, it does not matter whether the witnesses simply put their signatures and indicate personal data (last name, first name, patronymic and place of residence in accordance with an identity document) or in any way express their attitude to the act drawn up by the testator (for example, " I certify that this is a will" or "testator's signature is correct"). These circumstances cannot serve as a basis for recognizing a will as invalid, because such a will is still subject to execution only if it is confirmed by the court at the request of the interested parties (paragraph 3 of article 1129 of the Civil Code).

In addition to the case discussed above, in all other cases the law requires that the will be certified in the prescribed manner by a notary (clause 1 of article 1125 of the Civil Code) or authorized officials of local governments or officials of consular institutions of the Russian Federation (clause 7 of article 1125 GK). At the same time, it should be taken into account that not every official of local self-government bodies is endowed with such powers. Only persons with executive and administrative powers, for example, the head of a local administration (or municipality), his deputy, have the right to certify a will.

The procedure for the certification of a will by a notary. This type of notarial act, as the certification of a will, should be considered as a form of assistance to citizens in exercising their rights and protecting their legitimate interests (Article 16 of the Fundamentals of Legislation on Notaries). Based on the systematic interpretation of this provision, it is possible to identify the range of actions that, in fact, constitute the certificate of the will. So, like any notarial act, the certification of the will begins with the identification of the person who applied for the certification of the will. Identification is carried out by presenting a passport or other identity document, which, in accordance with applicable law, can replace a passport. Then the notary is obliged to check the legal capacity of the person.

Of course, a notary is not required to have the professional skills of a psychotherapist and cannot, within 5-10 minutes, make a medical conclusion regarding the legal capacity or incapacity of the person who applied to him. The notary only asks simple questions, for example, about today's date, location, well-known events, etc., which any capable person is able to answer. In addition, the notary takes into account such external signs of incapacity as incoherent muttering, salivation, oddity in clothing and appearance (for example, clothes out of season or extremely dirty, etc.). In case of doubt, the notary postpones the certification of the will and finds out whether a court decision was made to restrict or deprive the citizen who applied to the notary's office of legal capacity. In addition, the notary is obliged to refuse to perform a notarial act if the citizen who applied for its performance is in a state of alcoholic or other intoxication (narcotic, toxic), since in this case, based on medical data, there is reason to believe that the citizen cannot understand the meaning of their actions or direct them.

Further, the purpose of the citizen's appeal to the notary is clarified. In the case of an appeal for the purpose of certifying a will, the notary finds out the real will of the testator and explains the essence and content, as well as the legal consequences of the desired will of the testator. The notary is obliged to explain the rights of the testator, in particular the right to deprive all or some of the heirs of the inheritance property under the law, the principle of universal succession, the right to sub-appointment of heirs, the rules regarding the mandatory share as an exceptional case of limiting the will of the testator, the procedure for canceling and changing a will, the grounds for recognition of the will as invalid, the essence and procedure for making a closed will and a number of other norms. In addition, the notary must warn about the consequences to which the certification of the will leads, write down the will from the words of the citizen, accurately expressing his will. One of the main duties of a notary is to ascertain whether the content of the will corresponds to the real intention of the testator, even if the testator made the will himself, because in case of inconsistency, the will will necessarily be the subject of legal proceedings.

The legislation does not contain a clear definition of the written form of the transaction at all. The general provisions on the written form of a transaction are reduced only to an indication that it is carried out by drawing up a document expressing its content. The only requirement for such a document is the signature of the persons (persons), whose will is the essence of the transaction (clause 1, article 160 of the Civil Code). Through a simple interpretation and generalization of the norm, it can be concluded that the written form of a will should be understood as a statement of the will of the testator in the form of graphic signs (letter or otherwise), with the help of which any other person who knows these signs can understand the meaning of the stated will (Article 1132 GK). In other words, the written form of a transaction is a specific graphic system, the elements of which - textual or dictionary entries - can be the subject of philological analysis at the level of phonetics and graphics.

Understanding the meaning of a will can occur not only through text, but also through an image, including a graphic one. As an example, we can cite a situation where the testator, both to facilitate his own perception and understanding of the last expression of will, and to eliminate doubts that may arise after the opening of the inheritance, as an appendix to the will, brings a drawing of a house or a plan of a land plot, where he indicates what share and to which of the heirs it is intended. In our opinion, a notary has no right to refuse a citizen to attach a diagram or include an image of the distribution of the shares of an object in the will itself, even if he fully understands the will of the testator and there are no doubts about the interpretation of the will.

According to paragraph 3 of Art. 1124 of the Civil Code, the requirement for the presence of a notary when signing a will by the testator and witnesses is a mandatory component of the will certification. The notary is obliged to ensure that this action is performed in the proper form and by the proper person. In notarial practice, a rule has developed according to which the notary offers the testator and witnesses to indicate in full their last name, first name and patronymic, which is due to the potential possibility of challenging the will in court and serves to facilitate the authentication of the testator's signature after his death. It should be noted that this requirement is not legally fixed. In judicial practice, there are cases of contesting the validity of a will on the grounds that the testator fully and personally deciphered his initials at the end of the will, but did not sign it. The court declares such a will invalid. If the will written by the testator is signed by the appellant, then the presence of the testator is obligatory even at such signing. The presence of the testator is obligatory at all stages of making a will.

The procedure for certifying a will with the actions of a notary clearly regulated by law, which we have considered, serves one purpose - to ascertain the true free will of a citizen, as well as reliable fixation of this will.

Wills equated to notarially certified. In accordance with Art. 1127 of the Civil Code, wills that are equated to notarized ones include:

1) wills of citizens who are being treated in hospitals, hospitals, other inpatient medical institutions or living in homes for the elderly and disabled, certified by the chief physicians, their deputies for the medical unit or the doctors on duty of these hospitals, hospitals and other inpatient medical institutions, as well as heads of hospitals, directors or chief physicians of homes for the elderly and disabled;

2) wills of citizens who are at the time of navigation on ships flying the State flag of the Russian Federation, certified by the captains of these ships;

3) wills of citizens who are on exploration, Arctic or other similar expeditions, certified by the heads of these expeditions;

4) wills of military personnel, and in the locations of military units where there are no notaries, also wills of civilians working in these units, members of their families and members of the families of military personnel, certified by the commanders of military units;

5) wills of citizens in places of deprivation of liberty, certified by the heads of places of deprivation of liberty.

A will equated to a notarized one must be signed by the testator in the presence of the person certifying the will and a witness also signing the will. Otherwise, the rules of Art. 1124 and 1125 of the Civil Code.

Will certified in accordance with Art. 1127 of the Civil Code, should be, as soon as possible, sent by the person who certified the will, through the justice authorities to the notary at the place of residence of the testator. If the person who certified the will knows the place of residence of the testator, the will is sent directly to the relevant notary.

If in any of the above cases a citizen who intends to make a will expresses a desire to invite a notary for this, and there is a reasonable opportunity to fulfill this desire, the persons who have been granted the right to certify a will are obliged to take all measures to invite a notary to the testator.

2.4. Closed testament

According to Art. 1126 of the Civil Code, the testator has the right to make a will, without providing other persons, including a notary, with the opportunity to familiarize themselves with its contents. This is the so-called closed testament. It was a novelty of the third part of the Civil Code, which entered into force on March 1, 2002. Obviously, according to the legislator, a closed will is a way of absolute implementation of the principle of the secrecy of a will, in which even a notary is denied familiarization with the contents of the will.

A closed will is referred by law to notarized wills, more precisely, to a variety of notarized wills. The procedure for drawing up a closed will consists of two stages: 1) directly drawing up in a simple written form and signing by a person of a document (will); 2) transfer of the document to the notary for storage. Despite the fact that the first stage of drawing up a closed will is fully consistent with the usual procedure for making transactions in a simple written form, it is the second stage that is mandatory under pain of invalidity of such a will.

A closed will differs significantly from the practice of certifying a will that has developed in Russia. However, this practice is common in countries close to us of the continental system of law. A closed will in them is very common and is called a home will.

The first step towards drawing up a closed will is the personal drawing up and signing of the will - a written document from which it clearly follows that this is the last will of the testator. In this case, the text of the will can be written either by hand or using any technical means. The main thing is that such a will be signed by the testator himself. Next, the closed will is also placed in an envelope with one’s own hand and sealed before going to the notary. Failure to comply with the rules of handwritten presentation and signing of a will entails its invalidity.

Based on the very nature of a closed will, it follows that the circle of persons who can make it is limited. In particular, when making a closed will, the testator cannot resort to the help of an executor (as is provided for when making a classic will certified by a notary). From this follow the following requirements for a testator who wishes to express his last will in a closed will: 1) it can only be citizens with full legal capacity; 2) exceptionally literate; 3) who do not have physical disabilities that would prevent their own written statement of their will (blindness, illness associated with impaired coordination, etc.).

All general rules of Art. 1118 Civil Code. In particular, the will must be made in person; making a will through a representative is not allowed. A will may contain the instructions of only one citizen; making a will by two or more citizens is not allowed.

In accordance with Art. 1126 of the Civil Code, a closed will in a sealed envelope is transferred by the testator to a notary in the presence of two witnesses who put their signatures on 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 adoption, the last name, first name, patronymic and place of residence of each witness in accordance with an identity document.

When accepting an envelope with a closed will from the testator, the notary is obliged to explain to the testator that the will must be written and signed by the testator in his own hand and that failure to comply with these rules entails the invalidity of the will, i.e. the content of paragraph 2 of Art. 1126 GK. In addition, the notary is obliged to explain to the testator the provisions of Art. 1149 of the Civil Code on the mandatory share. On the fulfillment of these obligations, the notary makes an appropriate inscription on the second envelope.

Witnesses present at the transfer by the testator to a notary of a closed will must comply with the requirements of paragraph 2 of Art. 1124 GK. According to this article, the following cannot be such witnesses and cannot sign a will instead of a testator:

1) a notary or other person certifying a will;

2) 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;

3) citizens who do not have legal capacity in full;

4) illiterate;

5) citizens with such physical disabilities that clearly do not allow them to fully realize the essence of what is happening;

6) persons who do not have sufficient knowledge of the language in which the will is drawn up, except for the case when a closed will is drawn up.

The identity of witnesses is established by a notary according to the general rules for performing a notarial act, namely, only when they provide an identity document.

Witnesses are required to sign an envelope containing a closed will only in the presence of a notary and the testator. If an envelope signed by the witnesses in advance is provided, the notary shall refuse to accept it. Witnesses are warned by the notary about the need to keep the secrecy of the will and about responsibility in case of violation of the secrecy of the will (Article 1123 of the Civil Code), which is noted before the signature of the witnesses on the envelope with the closed will.

An envelope with a closed will signed by witnesses in the presence of the testator and witnesses is sealed by a notary in another envelope (the so-called storage envelope), on which a certification inscription is made.

In accordance with the form No. 67 of the Appendix to the Order of the Ministry of Justice of Russia No. 99, the notary makes the following inscription on the envelope with a closed will

After that, the notary issues to the testator a document confirming the acceptance of a closed will. Such a document is a certificate of acceptance of a closed will (form No. 68).

It should be noted that, despite certain specifics of making and certifying a closed will, its certification by a notary outside the premises of a notary's office (for example, at home) is not excluded. At the same time, a note about the notarial act at home, which is usually made in the very text of the notarized document, in this case should be made directly on the envelope with the closed will.

In accordance with Art. 1126 of the Civil Code of the Russian Federation, upon presentation of the death certificate of the person who made a closed will, the notary, no later than 15 days from the date of submission of the certificate, opens the envelope with the will in the presence of at least two witnesses and interested persons from among the legal heirs who wished to be present. After opening the envelope, the text of the will contained in it is immediately announced by the notary, after which the notary draws up and, together with the witnesses, signs a protocol certifying the opening of the envelope with the will and containing the full text of the will (form No. 69).

The original will is kept by the notary. The heirs are issued a notarized copy of the protocol.

2.5. Contents of the will. Appointment and subappointment of an heir

In accordance with the principle of freedom of will, the testator has the following rights:

1) distribute their property among all legal heirs in unequal shares;

2) to bequeath part of the property, leaving the other part outside the testamentary dispositions;

3) deprive one, several or all of his or her heirs of an inheritance; in case of deprivation of the right of inheritance of all heirs, the state becomes the heir;

4) to bequeath his property to one or more legal heirs;

5) to bequeath his property to a state body, public or other organization;

6) to bequeath their property to any unauthorized persons;

7) change the order of inheritance of property relating to household furnishings and household items, and bequeath household furnishings and household items to any of his heirs, regardless of their place of residence;

8) include other testamentary dispositions in the will;

9) indicate the person or persons to whom the estate of the testator will pass in the event of the death of the first heir or in case of his refusal to accept the inheritance and other rights provided for by civil legislation.

Of particular importance is the right granted to the testator to deprive heirs by law of their right to inherit in accordance with the norm of Art. 1119 of the Civil Code, however, the specified right of the testator is limited in accordance with the current legislation by the rules on the mandatory share. The desire of the testator to circumvent one of the heirs and deprive them of their inheritance rights in relation to the inheritance property can be expressed in two ways: 1) by direct indication in the will of the disinheritance of a particular person; 2) by default about this heir in the will when distributing his property.

In cases where the testator expressly indicates in his will that a specific heir(s) is deprived of the right to inherit by law, the said person is completely removed from the inheritance. In the general case, the share of the inheritance due to this heir under the law is subject to transfer to other heirs under the law, unless the testator specifically provided in the will that the share of the disinherited person passes to the share of another specific heir (heirs) under the law.

If in his will the testator simply does not mention (is silent) about any particular heir, then this person is also deprived of his right to inherit, but only in part of the property that the testator distributed in the will among other heirs. Therefore, if the testator owns property not specified in the will, the heir not listed among the heirs during the distribution of property has the right to inherit the property not specified in the will in equal shares with the rest of the heirs according to the law.

In addition to the rights listed above, the testator has the right to make an order not only regarding the distribution and further use of his property, but also on the appointment of an executor of the will, on the choice of a guardian for his children, on the place of his burial, and other conditions.

Sub-appointment of the heir (substitution). In accordance with paragraph 1 of Art. 1121 of the Civil Code, the testator may make a will in favor of one or more persons (Article 1116), both included and not included in the circle of heirs by law. In addition, in accordance with clause 2 of this article, the testator may also indicate in the will another heir (sub-appoint an heir), in case the heir appointed by him in the will or the testator's heir dies according to the law before the opening of the inheritance, either simultaneously with the testator, or after the opening of the inheritance , not having time to accept it, either will not accept the inheritance for other reasons or will refuse it, or will not have the right to inherit or will be removed from inheritance as unworthy.

2.6. Testamentary refusal and testamentary laying on

Testamentary refusal. The institution of a testamentary refusal, also called a legate (from the Latin legatum - purpose under a will), has its roots in Roman law. According to the norm of paragraph 1 of Art. 1137 of the Civil Code, the testator has the right to impose on one or more heirs by will or by law the performance of any obligation of a property nature at the expense of the inheritance in favor of one or more persons (legatees) who acquire the right to demand the performance of this obligation. Thus, a testamentary refusal is a special testamentary disposition that establishes the obligation to perform certain actions of a property nature by heirs under a will or under the law in favor of one or more persons (legatees).

A testamentary refusal is a unilateral transaction, at the same time it is a legal fact, by virtue of which legal relations arise between the heir, who is obliged to execute the testamentary refusal, and the legatee. A testamentary refusal creates an obligation for the heir of the legator to fulfill the refusal, however, this obligation arises not by virtue of a will, but by virtue of the fact of acceptance of the inheritance.

If a testamentary refusal is assigned to several heirs, then they are obliged to fulfill it in proportion to their share, unless otherwise provided by the will (paragraph 2 of article 1138 of the Civil Code).

In accordance with paragraph 2 of Art. 1137 of the Civil Code, the subject of a testamentary refusal may be:

1) transfer to the legatee of ownership, possession on another property right or use of a thing that is part of the inheritance;

2) transfer to the legatee of a property right included in the inheritance;

3) acquisition for the legatee and transfer of other property to him;

4) performing certain work for him or providing him with a certain service or making periodic payments in favor of the legatee, etc.

In particular, on the heir to whom a residential house, apartment or other residential premises is transferred, the testator may impose the obligation to grant to another person for the period of the life of this person or for another period the right to use this premises or a certain part of it.

It is important to note that a testamentary refusal, the subject of which is the granting to a third party of the right to use hereditary property, is an encumbrance of property, and the rights of the legatee do not terminate when the heir alienates the property encumbered by the testamentary refusal. It should be noted that the legatee retains the right to use the inherited property not only when the property is transferred to the ownership of another person, but also in cases where it is transferred to other persons for other reasons, for example, under a lease agreement.

In accordance with the norm par. 2 p. 1 art. 1137 of the Civil Code, a testamentary refusal must be established in the will. In general, the requirements for the execution of a testamentary refusal are the same as for the execution of a will. The legislator even admits that the contents of a will may be exhausted by a testamentary refusal (paragraph 3, clause 1, article 1137 of the Civil Code).

In view of the fact that the current legislation provides for a wide range of powers to dispose of property (property rights) by its owner, it is common for a thing to be held by a third party. In this case, the heir is obliged to acquire it and transfer it to the legatee. If for some reason he does not want to do this or cannot do this due to objective reasons (for example, an individually defined thing belongs to a person who refused to alienate it), then he is obliged to pay the value of this thing to the legatee. In this case, the value is determined either by mutual agreement of the parties, or based on the market value of the thing. The legate can also be annual payments of a certain amount of money, a debt claim (debt of the legatee). In the latter case, the legate should be regarded as the forgiveness of the debt.

When the subject of a testamentary refusal is a thing that is not defined by generic characteristics, but contains only an indication of its value, upon refusal of the thing, it is possible to establish for the legatee the right to choose from two or more things. Then the legatee has the right to choose one or more items from among things that meet common characteristics, or from two or more individually defined things. The range of things from which the choice will be made can be entrusted to the heir himself, and to a third party. In all these cases, one must be guided by the rule that the total value of the legates should not exceed the value of the inheritance.

In accordance with the rules of paragraph 4 of Art. 1136 of the Civil Code, 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, another legatee may be assigned to the legatee in the will in the event that the legatee appointed in the will dies before the opening of the inheritance or simultaneously with the testator, or refuses to accept a legacy or does not exercise his right to receive a legacy, or loses the right to receive a legacy in in accordance with the rules of paragraph 5 of Art. 1117 GK.

The heir, to whom, in accordance with the last will of the testator, along with the inheritance property and property rights, the obligation to fulfill the legacy has passed, must fulfill it within the value of the inheritance that has passed to him, less the debts of the testator attributable to him.

If the heir to whom the testamentary refusal is entrusted, in addition to the inheritance rights specified in the will, has the right to an obligatory share in the inheritance, his obligation to fulfill the refusal is limited to the value of the inheritance passed to him in the order of inheritance by will, which exceeds the amount of his obligatory share. Thus, the obligation to execute a testamentary refusal does not apply to hereditary property that has passed under the law as an obligatory share in the inheritance.

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

If the legatee died before the opening of the inheritance or simultaneously with the testator, or refused to receive a legacy or did not use his right to receive a legacy within three years from the date of opening of the inheritance, or lost the right to receive a legacy, the heir, who is obliged to execute the legacy, shall be released from this obligation, unless another legatee has been sub-appointed to the legatee.

Testamentary deposit. Like a testamentary refusal, a testamentary assignment is an independent testamentary disposition, the essence of which is to impose an obligation on the heir to perform any actions of a property or non-property nature.

A testamentary assignment is an official assignment by the testator to one, several or all heirs by law or by will to perform any action of a property or non-property nature aimed at achieving a generally useful goal. The same obligation may be imposed on the executor of the will, provided that a part of the estate property is allocated in the will for the execution of the testamentary assignment. The testator also has the right to impose on one or more heirs the obligation to maintain domestic animals belonging to the testator, as well as to exercise the necessary supervision and care for them (paragraph 1 of article 1139 of the Civil Code).

A testamentary assignment should be distinguished from a testamentary refusal. Firstly, a testamentary refusal is an action of only a property nature, while a testamentary assignment is an action of both a property and non-property nature. Secondly, a testamentary refusal is made in favor of a certain, specific person, and a testamentary laying in favor of an indefinite circle of persons. Thirdly, only a certain person, the legatee, is entitled to demand the execution of a will, while any interested person can demand a testamentary deposit. If the essence of a testamentary deposit is an obligation to perform actions of a property nature in favor of an indefinite circle of persons, then the rules of the article defining the testamentary refusal are applied accordingly to such an assignment.

Interested persons, the executor of the will, any of the heirs acquire the right to demand from the heir under the will (heirs subsidiary) the execution of the testamentary imposition in court, unless otherwise provided by the will (paragraph 3 of article 1139 of the Civil Code).

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

2.7. Compulsory inheritance share

In accordance with the principle of freedom of will, any citizen has the right to dispose of his property in the event of death according to his will and inner conviction. However, this principle has some exceptions and may be limited in cases strictly defined by the current legislation. In particular, in accordance with paragraph 1 of Art. 1119 of the Civil Code, the freedom of will is limited by the rules on the mandatory share in the inheritance. Thus, the legislator guards the rights of a certain circle of heirs under the law - the closest members of the testator's family, who, regardless of the content of the will, will have certain property rights as heirs.

The list of persons entitled to the mandatory share is exhaustive. According to the rules of paragraph 1 of Art. 1149 of the Civil Code, the following can apply for a mandatory share in the inheritance:

1) minor or disabled children of the testator;

2) disabled spouse and parents of the testator;

3) disabled dependents of the testator who are subject to being called to inherit as a so-called rolling line.

When applying the mandatory share rules, the following should be taken into account.

1. The right to receive an obligatory share is not made dependent on the consent of other heirs, since the law does not provide for the need to obtain such consent.

2. The grandchildren and great-grandchildren of the testator, whose parents died before the opening of the inheritance, as well as the heirs of the second stage, are not entitled to a mandatory share, except in those cases when they were dependent on the testator.

3. The right to a mandatory share of the persons specified in paragraph 1 of Art. 1149 of the Civil Code, is not made dependent on the cohabitation of these persons with the testator. Minor or disabled children of the testator, his disabled spouse and parents, disabled dependents of the testator inherit, regardless of the content of the will, at least half of the share that would be due to each of them in the inheritance by law.

The right to an obligatory share in the inheritance is satisfied from the remaining unbequeathed part of the estate, even if this leads to a decrease in the rights of other heirs under the law to this part of the property, and if the unbequeathed part of the property is not enough to exercise the right to an obligatory share, to an obligatory share from that part of the property , which is not bequeathed (clause 2 of article 1149 of the Civil Code).

Everything that the heir entitled to such a share receives from the inheritance for any reason, including the value of a testamentary refusal established in favor of such an heir, shall be included in the mandatory share.

If the exercise of the right to an obligatory share in the inheritance entails the impossibility of transferring to the heir under the will the property that the heir having the right 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 mandatory share, reduce the amount of the mandatory share or refuse in her award.

2.8. Testament secret. Cancellation and change of will. Invalidity of a Will

Testament secret. According to Art. 23 of the Constitution, citizens are guaranteed the right to family and personal secrets. This provision of the Constitution is also reflected in the Civil Code, which classifies personal and family secrets as intangible benefits protected by civil law (Article 150 of the Civil Code).

Inheritance law as a sub-branch of civil law also does not deviate from this constitutional provision. In particular, paragraph 2 of Art. 1119 of the Civil Code, information relating to a will (its content, making, changing or canceling) refers to the personal secret of a citizen, into which he is not obliged to dedicate anyone. Nevertheless, when making a will of any of the types known to the current legislation (except for a closed will), it is quite obvious that this information may become known to the persons participating in the making of the will: a notary; officials authorized to make a will; witnesses; handyman. However, as you know, the norms of the Constitution have direct effect, and sectoral legislation cannot be in conflict with the Constitution, therefore, the Civil Code contains a rule according to which, in order to protect the personal secret of the testator, the above persons are obliged not to disclose information about the will until the opening of the inheritance .

In accordance with Art. 1124, 1125, 1127, 1134 of the Civil Code, a circle of persons obliged to keep the secret of the will is defined: this is a notary, another person certifying the will (clause 7 of article 1125, article 1127 of the Civil Code); translator, executor of the will (Article 1134 of the Civil Code); witnesses (clause 2 of article 1124 of the Civil Code); an assailant (clause 3 of article 1125 of the Civil Code).

Provisions regarding imposing on a notary the obligation to keep a will secret are contained not only in the Civil Code, but also in Art. 5, 16 Fundamentals of legislation on notaries. This obligation is general in nature, applicable to all actions performed by a notary: the notary is prohibited from disclosing information that became known to him during the performance of notarial actions, which include certification of a will, its change or cancellation. He is obliged to maintain the secrecy of notarial actions even after resignation or dismissal.

Since the legislation provides for the possibility of certifying a will by an official of local self-government bodies and other officials, it is quite logical that the obligation to keep the secret of the will is also assigned to these persons in the event that they certify the will. This provision is provided for in Art. 37 Fundamentals of legislation on notaries; Instructions on the procedure for performing notarial acts by officials of executive authorities, approved by the Ministry of Justice of Russia on March 19, 1996 No. 1055.

As noted earlier, the secrecy of a will is an intangible benefit, the violation of which entails the use of civil law methods of protection listed in Art. 12 GK. The most common way to protect an intangible good is compensation for moral damage (Articles 12, 151 of the Civil Code). According to the norm par. 2 tbsp. 1123 of the Civil Code, in case of violation of the secrecy of the will, the testator has the right to demand compensation for moral damage, as well as to use other methods of protecting civil rights provided for by this Code. Thus, in all cases of violation of the secrecy of the will, regardless of the guilt of the person who disclosed information about the will, the method of their transfer, the testator has the right to demand compensation for moral damage. It is also quite obvious that he can also make a claim for compensation for property damage caused by disclosure of the secret of the will.

First of all, a notary may become a defendant in a claim for compensation for moral harm and material damage caused by the disclosure of the secret of a will. In case of violation of the secrecy of the will, the notary is obliged to compensate for the damage by virtue of Art. 17 Fundamentals of legislation on notaries, which provides for liability for the disclosure of information about the performance of notarial acts. By a court decision, a notary engaged in private practice may be charged with this duty for intentional actions. In other cases, the damage is compensated by the notary, if it cannot be compensated in another way. These are, first of all, insurance payments, since notarial activities in accordance with the current legislation are subject to compulsory insurance.

Cancellation and change of will. In accordance with paragraph 1 of Art. 1130 of the Civil Code, the testator has the right to cancel or change the will drawn up by him at any time after it was made, without specifying the reasons for its cancellation or change. Cancellation or modification of a will does not require the consent of anyone, including persons designated as heirs in the will being canceled or amended.

Each will automatically loses force and is canceled by the same testator drawing up a new will, which, based on its content, cancels the first one as a whole or changes it by canceling or changing individual testamentary dispositions contained in it. A subsequent will, which, although it does not contain direct instructions to cancel the previous will or individual testamentary dispositions contained therein, certainly cancels this previous 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 taken into account when opening an inheritance, unless the subsequent will was canceled by the testator in whole or in the relevant part, or was declared invalid (void) in court on the general grounds for recognizing transactions as invalid or on grounds invalidation of the will.

A will can also be canceled by means of an order to cancel it, and such an order must be made in the same form that is provided for in the Civil Code for making a will.

By a will made in extraordinary circumstances (Article 1129 of the Civil Code), only the same will can be canceled or changed.

By a testamentary disposition in a bank (Article 1128 of the Civil Code), only a testamentary disposition of rights to funds in the corresponding bank can be canceled or changed.

Invalidity of a will. If, when making a will, violations were committed that entailed the recognition of the transaction as invalid on the grounds provided for in Ch. 9 of the Civil Code, then such a will will be declared invalid. In addition to the general grounds for the invalidity of transactions in Ch. 62 of the Civil Code provides for special requirements for the procedure for making a will. Violation of these requirements also entails the invalidity of the will. Thus, in case of violation of the provisions of the Civil Code, entailing the invalidity of the will, depending on the basis of invalidity, the will is invalid by virtue of its recognition as such by the court (disputable will) or regardless of such recognition (void will).

The general consequences of invalidating a will are established in Art. 167 GK. Like any other transaction, an invalid will does not entail any legal consequences from the moment it is made, and not from the moment it is recognized as such in a court of law. An invalid will is not enforceable.

In accordance with part three of the Civil Code, additional grounds for invalidating wills (in addition to the general grounds for the invalidity of transactions) are not so much different as clarifying. Thus, it is impossible to recognize as an exception to the general rule the provision that the invalidity of a will does not deprive the persons indicated in it as heirs or legatees of the right to inherit under the law or on the basis of another valid will.

A will may be invalidated both as a whole and in separate parts. Individual testamentary dispositions contained in it may also be declared invalid, but their invalidity does not affect the rest of the will, if only it can be assumed that it would have been included in the will without the invalid parts of the will (clause 4 of article 1131 of the Civil Code). This rule is also clarifying in relation to the will, if we compare it with the general provision contained in Art. 180 GK.

A special consequence of the invalidity of the will is that in the event of the invalidity of the subsequent will, the inheritance is carried out in accordance with the previous will (clause 3 of Art. IZO GK). This rule is, of course, an exception to the general rule on the consequences of the invalidity of transactions.

In accordance with paragraph 2 of Art. 1131 of the Civil Code, a will may be declared invalid by a court at the suit of a person whose rights or legitimate interests are violated by this will. In this case, contesting the will before the opening of the inheritance is not allowed. The persons whose rights or legitimate interests are violated by a will may include the heirs, legatees and executor of the will specified in the will. In addition to them, persons disinherited by the testator, obligatory (necessary) heirs, heirs by law, heirs by a previously drawn up will, guardianship and guardianship authorities (in defense of the rights of minor heirs) and other interested persons can apply to the court. In any case, all of them can challenge the validity of the will only after the opening of the inheritance.

Grounds for declaring a will null and void may be:

a) incomplete legal capacity of the testator (clause 2 of article 1118 of the Civil Code), i.e., a defect of will;

b) the absence of witnesses in cases provided for by law (clause 3 of article 1124 of the Civil Code); non-compliance with the requirements for the execution of a will (clause 1 of article 165, clause 1 of article 1124 of the Civil Code); the absence of a place and date for the certification of a will in cases provided for by law (clause 4 of article 1124 of the Civil Code), i.e. a defect in form;

c) making a will through a representative (clause 3 of article 1118 of the Civil Code), i.e. a defect in the correspondence of will and will;

d) the making of one will by two or more persons (clause 4 of article 1118 of the Civil Code), i.e., a defect in maintenance.

Among the so-called special grounds for recognizing a will as invalid (disputable), the legislator identifies:

1) non-compliance of the witness with the requirements provided for by law (clause 3 of article 1124 of the Civil Code);

2) doubts about the handwritten signature of the testator (clause 3 of article 1125, clause 2 of article 1126, clause 2 of article 1127, clause 1 of article 1129 of the Civil Code);

3) the absence of emergency circumstances that clearly threatened the life of the testator, when drawing up a will in emergency circumstances (clause 3 of article 1129 of the Civil Code);

4) making a will under the influence of threat or violence (Article 179 of the Civil Code);

5) such a state of the testator at the time of making the will, when he did not give an account of his actions (Article 177 of the Civil Code);

6) other grounds.

In the conditions of active cultural, economic and political interaction between citizens of different countries, the issue of the possibility of certifying a will by a citizen of the Russian Federation outside of Russia is of particular importance. Under private international law (PIL), a will can be made in any country. But the ability of a person to make and revoke a will, as well as the form of a will and its revocation, are determined by the law of the country where the testator had his place of residence at the time of making the will, and not in accordance with the principle of personal law. In this case, such a principle of PIL applies as the application of the law of the country of the transaction. Thus, the will itself or its cancellation cannot be declared invalid due to non-observance of the form, if the latter satisfies the requirements of the law of the place of its preparation.

According to the rule of paragraph 3 of Art. 1131 of the Civil Code of error and other minor violations of the procedure for drawing up, signing or certifying a will, if the court has established that they do not affect the understanding of the will of the testator, cannot serve as a basis for the invalidity of the will.

2.9. Testament execution. Will interpretation

Testament execution. As a general rule, in accordance with Art. 1133 of the Civil Code, the execution of the 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 (Article 1134 of the Civil Code). However, in his will, the testator may entrust the execution of the will to the citizen-executor (executor of the will) indicated by him in the will, regardless of whether this citizen is an heir.

The consent of a citizen to be an executor of a will is expressed by this citizen in his own handwritten inscription on the will itself, or in an application attached to the will, or in an application submitted to a notary within a month from the day the inheritance was opened. A citizen is also recognized as having agreed to be an executor of the will if he actually began to execute the will within a month from the date of opening the inheritance (paragraphs 2 and 3 of clause 1 of article 1134 of the Civil Code).

After the opening of the inheritance, the court may release the executor of the will from his duties both at the request of the executor of the will, and at the request of the heirs, if there are circumstances that prevent the citizen from fulfilling these duties (paragraph 2 of article 1134 of the Civil Code).

The powers of the executor of the will are regulated in Art. 1135 GK. According to paragraph 1 of this article, the powers of the executor of the will are based on the will by which he was appointed executor, and are certified by a certificate issued by a notary. Unless otherwise provided in the will, the executor of the will must take the measures necessary for the execution of the will, including:

1) ensure the transfer to the heirs of the inheritance property due to them in accordance with the will of the testator expressed in the will and the law;

2) to take measures independently or through a notary to protect the inheritance and manage it in the interests of the heirs;

3) receive funds and other property due to the testator for transfer to their heirs, if this property is not subject to transfer to other persons (clause 1 of article 1183 of the Civil Code);

4) execute a testamentary deposit or demand from the heirs the execution of a testamentary refusal (Article 1137 of the Civil Code) or a testamentary deposit (Article 1139 of the Civil Code).

The executor of the will has the right, on his own behalf, to conduct cases related to the execution of the will, including in court, other state bodies and state institutions (paragraph 3 of article 1135 of the Civil Code).

In accordance with the rule Art. 1136 of the Civil Code, the executor of the will has the right to reimbursement at the expense of the inheritance of the necessary expenses associated with the execution of the will, as well as to receive remuneration from the inheritance in excess of the costs, if this is provided for by the will.

Testament interpretation. In practice, there are often problems with the interpretation of the content of a will, especially closed or emergency wills. Article 1132 of the Civil Code established the following rules of interpretation.

1. When interpreting a will by a notary, an executor of a will or a court, the literal meaning of the words and expressions contained in it shall be taken into account.

2. If the literal meaning of any provision of the will is unclear, it shall be established by comparing this provision with other provisions and the meaning of the will as a whole. At the same time, the most complete implementation of the intended will of the testator must be ensured.

2.10. Testamentary dispositions of rights to funds in banks

As is known from the general part of civil law, material goods involved in civil circulation, in addition to things, other property and property complexes, include property rights, including money in banking organizations under bank deposit and account agreements. These material goods can be included in the estate and pass to the heirs of a citizen both in the case of inheritance by will and by law. At the same time, a citizen has the right to dispose of funds, both by indicating his will in a will certified by a notary public, and by making an order directly in the credit institution in which there is a cash account.

According to Art. 1128 of the Civil Code, the rights to funds deposited by a citizen or located on any other account of a citizen in a bank may be bequeathed at the discretion of the citizen by making a testamentary disposition in writing in the branch of the bank where this account is located. With regard to the funds on the account, such a testamentary disposition has the force of a notarized will.

Decree of the Government of the Russian Federation of May 27, 2002 No. 351 approved the Rules for making testamentary dispositions with rights to cash in banks (hereinafter referred to as the Rules). In accordance with the said Rules, testamentary dispositions are made free of charge. The drafting, signing and certification of a testamentary disposition is subject to the following conditions:

1) the identity of the testator is certified by a passport or other documents that exclude any doubts about the identity of the citizen;

2) the testator must be informed of the content of Art. 1128, ISO, 1149, 1150 and 1162 of the Civil Code, after which a note is made in the testamentary disposition;

3) persons participating in the making of a testamentary disposition are required to comply with the provisions of Art. 1123 of the Civil Code on the secrecy of the will.

The person certifying a testamentary disposition must inform the testator that he has the right to cancel or change the made testamentary disposition at any time after it has been made, without specifying the reasons for its cancellation or change. The cancellation or amendment of a testamentary disposition does not require anyone's consent, including persons appointed as heirs in the repealed or amended disposition. The testator has the right, by means of a new testamentary disposition, to cancel the previous disposition as a whole or to change it by canceling or amending individual dispositions contained in it by making an ordinary will in the general manner. A subsequent testamentary disposition or testament that does not contain direct indications of the cancellation of the previous testamentary disposition or individual testamentary dispositions contained in it, cancels this previous testamentary disposition in full or in the part in which it contradicts the subsequent testamentary disposition. In case of invalidity of the subsequent testamentary disposition or testament, the succession shall be carried out in accordance with the previous testamentary disposition.

The account owner (depositor) must be warned that, in accordance with the norm of paragraph 6 of Art. 1130 of the Civil Code, a testamentary disposition in a bank can only cancel or change a testamentary disposition of rights to funds in the corresponding bank. If a change or cancellation of a testamentary disposition is carried out by drawing up a notarized will, which specifically indicates the cancellation or change of a specific testamentary disposition, or a notarized separate order to cancel a testamentary disposition, one copy of such a will or disposition must be sent to the bank (clause 12 Rules).

In addition, the person certifying the testamentary disposition must report that the minor or disabled children of the testator, his disabled spouse and parents, as well as the disabled dependents of the testator, who are subject to being called to inherit on the basis of clauses 1 and 2 of Art. 1148 of the Civil Code, inherit, regardless of the content of the testamentary disposition in the bank, at least half of the share that would be due to each of them upon inheritance by law (mandatory share).

Finally, the person certifying the testamentary disposition must report that, in accordance with the rules of Art. 1150 of the Civil Code, the right of inheritance belonging to the surviving spouse of the testator by virtue of a will or law does not detract from his right to part of the property acquired during marriage with the testator and which is their joint property. The share of the deceased spouse in this property, determined in accordance with Art. 256 of the Civil Code, is part of the inheritance and passes to the heirs in accordance with the rules established by the Civil Code. Thus, if the contribution was made during the marriage, then it is the common property of the spouses, therefore, the testamentary disposition will concern only half of the amount of the bank deposit or account, unless otherwise provided by the marriage contract or the fact that the contribution was made from sources is proved, not included in the number of grounds for the emergence of common joint property of the spouses (for example, at the expense of funds received from the sale of property acquired before marriage, received by inheritance or on other gratuitous grounds, etc.).

The testamentary disposition is signed by the testator indicating the date of its compilation. It can be written by hand or using technical means (electronic computer, typewriter, etc.). The testamentary order specifies:

a) the place and date of its commission;

b) the place of residence of the testator;

c) names, patronymics, surnames of citizens, full name and location of the legal entity to which the deposit is bequeathed.

The testator may draw up one testamentary disposition for all funds placed on several bank accounts, or for funds placed on one of these accounts.

If the testator wants the funds from his account after his death to be issued to several heirs, then in the testamentary disposition he indicates to which of them which share is bequeathed. Funds bequeathed to several persons without specifying the share of each shall be issued to all these persons in equal shares.

The testator has the right to indicate in the testamentary disposition another person to whom the deposit should be issued if the person in whose favor the funds were bequeathed dies before the testator himself or submits an application to refuse to accept the bequeathed funds, as well as in other cases provided for by Art. . 1121 of the Civil Code (appointment and subappointment of an heir in a will).

The testator has the right to provide in the testamentary disposition the conditions for the issuance of a deposit (for example, the payment to the person to whom the deposit is bequeathed, certain amounts within the time limits established by the depositor; the issuance of the deposit to a person after he reaches a certain age, etc.). These conditions should not contradict the norms of the Civil Code.

Amendments and additions to a testamentary disposition are not allowed.

The testamentary disposition is drawn up in two copies, each of which is certified by the signature of an employee of the bank and the seal. The first copy is issued to the testator, and the second is registered in the book of testamentary dispositions and filed in a special folder of testamentary dispositions, stored in a fireproof cabinet. The bank employee makes a note on the testator's account on the testamentary order drawn up.

If the testator wishes to amend or revoke the testamentary disposition, he must apply to the bank where the testamentary disposition was drawn up and submit a personally signed testamentary disposition to this effect. An employee of the bank establishes the identity of the testator, checks the testamentary order submitted and attaches it to the previously drawn up one.

The testator has the right to change or cancel the testamentary disposition, guided by the provisions of Art. IZO GK, by drawing up a notarized will, which specifically indicates the cancellation or amendment of a specific testamentary disposition, or a notarized separate order to cancel a testamentary disposition, one copy of which must be sent to the bank.

In the event of the death of the testator, the notary sends a request to the bank (with a certified copy of the death certificate of the testator) with a request to confirm the fact of certification of a specific testamentary disposition by a bank employee and the fact of its cancellation or change. The response to the request is signed by the head of the bank with a seal and sent to the notary within a month. If a copy of the testator's testamentary disposition is attached to the request, the answer to the request may be stated under the text of this testamentary disposition.

The rules distinguish between the procedure for paying funds under testamentary orders made before March 1, 2002 and after, when the rules of part three of the Civil Code came into force, replacing the norms of the Civil Code of the RSFSR of 1964. So, if a testamentary order to issue a deposit in the event of death was made by the depositor before the entry into force of the third part of the Civil Code, i.e. in accordance with Art. 561 of the Civil Code of the RSFSR, then the funds on this deposit are not included in the composition of hereditary property and, in the event of the death of the depositor, are issued to the person specified in the order on the basis of documents certifying the fact of the death of the depositor (Article 8.1 of the Federal Law of November 26, 2001 No. 147-FZ "On the Enactment of Part Three of the Civil Code of the Russian Federation"). If the person specified in such an order dies before the day of death of the deposit owner or on the same day as him, the death order will lose its force, the funds on the deposit will be included in the estate of the deposit owner and the procedure and conditions for their issuance will become apply the rules of the new Civil Code. If more than one person was indicated as the beneficiary of the deposit in the order in case of the death of the depositor, this provision shall be applied provided that all the indicated persons died earlier or simultaneously with the owner of the deposit.

The payment of funds from the accounts of deceased testators who issued a testamentary disposition after March 1, 2002, is made, depending on the specific case, on the basis of the following documents:

1) a certificate of the right to inherit by will or by law, issued by a notary or a consular officer of the Russian Federation;

2) a notary's decision on reimbursement of expenses caused by the death of the testator, in accordance with Art. 1174 GK;

3) a notarized agreement on the division of hereditary property in accordance with Art. 1165 GK;

4) a certificate issued by a notary to the executor of the will in accordance with Art. 1135 GK;

5) a certificate of ownership of a share in property owned jointly by the spouses, issued by a notary or a consular officer of the Russian Federation in accordance with Art. 1150 GK;

6) a copy of the court decision with a note on its entry into legal force or a writ of execution if the case is considered in court.

According to paragraph 3 of Art. 1174 of the Civil Code, the heir to whom the funds deposited or held on any other accounts of the testator in banks, including in the case when they were bequeathed by testamentary disposition in a bank, are bequeathed, may at any time before the expiration of six months from the date of opening of the inheritance from the deposit or from the account of the testator, the funds necessary for his funeral. The amount of funds issued by the bank for the funeral of the heir or the person indicated in the notary's decision cannot exceed 200 minimum wages established by law on the day of applying for these funds.

The person certifying the testamentary disposition must inform that the certificate of the right to the funds in respect of which the testamentary disposition has been made is issued at the place of opening of the inheritance by a notary or an official authorized in accordance with the law to perform such a notarial act. The certificate is issued at the request of the heir (heirs) specified in the testamentary disposition, and at the request of the heirs, the certificate can be issued to all heirs together or to each heir separately, for all hereditary property as a whole or only for funds bequeathed by order in the bank (Art. 1162 GK).

Topic 3. INHERITANCE BY LAW

3.1. The concept of inheritance by law and the conditions for its occurrence

The second basis for accepting an inheritance is inheritance by law, to which heirs are called in the order of priority established by law. Inheritance by law is the embodiment of the principle of the alleged will of the testator: if he did not leave a will (did not realize his real will), it is considered that in this way he would like his property to pass to his closest relatives after death, i.e. to that line of heirs which, in accordance with the law, is subject to a calling to inherit.

Inheritance by law takes place when there is no will, as well as in other cases provided for by law. In the presence of a will, inheritance by law is possible in the following cases:

1) the testator, by will, has deprived all of his heirs by law of the order that, in the absence of a will, would be called to inherit, without indicating other heirs. In this case, the next line of heirs is called to inherit;

2) the court declared the will invalid in whole or in part;

3) only part of the property has been bequeathed;

4) the heir under the will died before the opening of the inheritance, without having time to accept it;

5) the testator in his will violated the requirements for the mandatory share;

6) the heir under the will is removed from the inheritance as unworthy.

When inheriting by law, the property of the testator is divided among all the heirs of the queue called for inheritance in equal shares.

When inheriting, the transfer of the rights and obligations of the testator to his heirs is carried out in the order of succession. According to the rules of paragraph 1 of Art. 1141 of the Civil Code, the heirs of each successive turn inherit, in the following cases:

- if there are no heirs of the previous lines;

- if none of the heirs of the previous lines has the right to inherit;

- if all of them are excluded from inheritance;

- disinherited;

- none of them accepted the inheritance;

- they all renounced the inheritance.

3.2. The circle of heirs by law, the order of calling them to inherit

According to the Civil Code, eight queues of heirs are currently established (Articles 1142-1145 of the Civil Code). The heirs of the first stage are the children, spouse and parents of the testator; heirs of the second stage - full and half brothers and sisters of the testator, his grandfather and grandmother both on the father's side and on the mother's side; heirs of the third stage - full and half brothers and sisters of the testator's parents (uncles and aunts of the testator); heirs of the fourth stage - great-grandfathers and great-grandmothers of the testator, i.e. parents of grandparents both on the mother's side and on the father's side; heirs of the fifth stage - children of the testator's nephews and nieces (cousins ​​and granddaughters) and siblings of his grandparents (cousin grandparents); heirs of the sixth line - children of cousins ​​​​and granddaughters of the testator (cousin great-grandchildren and great-granddaughters), children of his cousins ​​​​and sisters (cousins ​​and nieces) and children of his great-grandparents (cousins ​​and aunts); heirs of the seventh stage - stepsons, stepdaughters, stepfather and stepmother of the testator; heirs of the eighth stage - disabled dependents of the testator.

The sequence of succession according to the law is determined mainly by the degree of kinship between the heir and the testator, taking into account the degree of consanguinity and other equated to it according to the law of kinship. The degree of relationship is determined by the number of births separating relatives of one from another. Since the birth of the testator himself is not included in this number, therefore, relatives of the first degree of kinship are parents and children; second degree of kinship - grandparents and grandchildren; third degree of kinship - great-grandmothers, great-grandfathers and great-grandchildren. The degree of kinship is established on the basis of legal acts (documents) issued by authorized state bodies. Such legal acts include a birth certificate, a marriage certificate, etc.

1. Close relatives - heirs of the first stage - are recognized as parents, children, spouse (wife) of the testator. According to the current legislation, these persons are dependent on each other not only from the moment of birth until adulthood, but also in old age, as well as in the event of special circumstances (disability due to disability, etc.).

A spouse is a person who was in a legally registered marriage relationship with the testator at the time of the death of the latter. Actual marital relations - marital cohabitation, as well as church marriage - do not give rise to legal consequences when opening an inheritance and do not serve as a basis for entering into an inheritance. Such persons are not included in the circle of heirs at all, they can only claim their personal property, which is not included in the estate. It is a different matter if they lived together and were dependents of the testator.

A spouse who is legally married, at the opening of an inheritance, receives from all property his property, which belonged to him before marriage and received as a gift, personal belongings, except for luxury items, as well as his share of property acquired during joint life. This property is not included in the estate. Property that does not belong to the surviving spouse is part of the inheritance, which is divided among the heirs. If one of the heirs does not agree with such a division and believes that the surviving spouse named the property of the deceased spouse as his property, then he can file a lawsuit in court and the division of property will take place already in court.

The children of the deceased are also heirs of the first order, and this means not only children registered at birth (half-blooded children), but also children for whom paternity is legally established, as well as adopted children, adopted children, etc. Adopted children are equated in inheritance rights to consanguineous and receive an equal share with them in the inherited property. Also, according to the law, the heir is the child of the testator, born after the death of the testator.

The parents of the testator are also among the heirs of the first stage. They are entitled to an equal share in the inheritance of the first priority, and each of the parents receives a share in the inheritance. The surviving parent receives both his share of the inheritance and part of the share of the deceased parent on an equal footing with other heirs of the first stage, other children and parents, in relation to whom the inherited share is a hereditary mass, the division of which is carried out on common grounds.

Unlike marital relationship, which can be terminated by dissolution of marriage (de jure), after which the relationship ends regardless of the presence of a link (children jointly acquired), consanguinity does not end (de facto) even after the legal termination of the relationship . Such a legal act as the deprivation of parental rights or the abandonment of a child in favor of an adoptive parent only removes or imposes an obligation on parents or children, but does not terminate blood relationship.

Regardless of the degree of relationship, the share of inheritance of disabled persons and persons who were dependent on the deceased for at least a year and lived with him is established by law. These persons are heirs by law and can enter into inheritance on an equal basis with the heirs of the first priority.

2. Heirs of the second stage are persons who are related to the testator, as well as other persons equated to them: full and half brothers and sisters of the testator, his grandfather and grandmother both from the side of the father and from the side of the mother. They are called to inherit if there are no heirs of the first stage.

Full brothers and sisters of the testator have common parents - father and mother. Incomplete brothers and sisters can be consanguineous, i.e. having a common father, and uterine, i.e. having a common mother.

Stepbrothers and sisters, i.e., not having consanguinity (they have different parents, although they live together in a registered marriage), are not heirs of the second stage.

Grandfather and grandmother, both on the father's side and on the mother's side, inherit equally with the brothers and sisters of the testator under the law, if they are related by blood to their grandchildren and granddaughters.

Adoptive grandparents who are not related by blood to their grandchildren and granddaughters cannot be heirs of the second stage.

The testator's nieces and nephews, i.e., the children of the testator's full and half-siblings, are not second-order heirs, but inherit by right of representation the share of their deceased father or mother in equal parts.

3. The heirs of the third stage according to the law are the uncles and aunts of the testator, i.e. full and half brothers and sisters of the testator's parents.

Uncles and aunts on the father's side are equal in inheritance rights with similar relatives on the mother's side. Their children, i.e., cousins ​​of the testator, do not have an independent right to inherit the third stage; they inherit by right of representation.

Dependents do not have the right to inherit by representation. They can only inherit the property of the person who was dependent on them.

4. As fourth-degree heirs, relatives of the third degree of kinship are called upon to inherit - the testator's great-grandparents, i.e., the parents of grandparents on both the mother's and father's sides. They inherit property in the same way as second-degree heirs.

5. Heirs of the fifth line will be relatives of the fourth degree of kinship: cousins ​​and granddaughters - children of the testator's nephews and nieces - and cousins ​​- brothers and sisters of his grandfathers and grandmothers.

It should be borne in mind that cousins ​​and granddaughters cannot inherit property if they did not accept it, renounced the inheritance, were deprived of their inheritance or removed from inheritance, heirs of the second stage of inheritance - brothers and sisters, because according to the laws of formal logic, in the absence of heirs of the second stage in In nature, there cannot be cousin grandchildren and granddaughters at all.

6. The law defines relatives of the fifth degree of kinship as heirs of the sixth degree: great-great-grandsons and great-granddaughters - the children of the testator’s cousins, nephews and nieces - the children of his cousins, great-uncles and aunts - the children of his great-uncles and grandmothers.

7. For a call to inherit under the law of the penultimate, seventh, line of heirs, a necessary condition is the absence of all previous lines of heirs, that is, relatives by blood and by birth. In these cases, stepchildren and stepdaughters, i.e., unadopted children of one of the spouses of the testator, as well as stepfather and stepmother, i.e., non-native and non-adopted spouses of one of the parents of the testator, are called to inherit as heirs of the seventh line by law.

8. In the absence of heirs of all listed stages, heirs of the eighth stage are called to inherit: disabled dependents of the testator as independent heirs.

3.3. Inheritance by disabled dependents of testator

A special procedure has been established for calling to inherit disabled dependents of the testator who were dependent on the deceased for at least one year before his death, that is, heirs of the eighth stage. There are two groups of disabled dependents of the testator:

1) disabled dependents belonging to the queues from the second to the seventh inclusive. These are persons who are relatives, or persons whose relations are equated to relatives (relatives of the adopter, descendants of the adopted child), and persons who are in property relations. Since the spouse, parents (adoptive parents) and children (including adopted ones) of the testator are heirs of the first stage and have priority over all other heirs, they are not subject to the provisions on disabled dependents;

2) disabled dependents who are not among the heirs under the law, established by the above articles of the queues. Such persons can be either relatives of degrees of kinship that do not matter in inheritance, who are in property relations with the testator, which also do not have legal significance (for example, the wife's brother), or in general persons who are not related to the testator either by family ties or by property.

To inherit, disabled dependents of the first group must provide evidence confirming: a) their right to inherit in one of the queues; b) being a dependent of the testator (the period of dependence must be at least one year); c) disability. Dependency of young children is assumed. The fact of dependence of the others (ex-spouse, fifth-degree relative, etc.) is established by any admissible evidence.

Being dependent means that the person received the means of subsistence entirely at the expense of the testator or received from the testator such assistance, which was for him the main and permanent source of subsistence. This does not exclude that the dependent receives a pension or allowances, but it must be proved that these pensions and allowances met his needs only to a small extent.

Disabled are:

1) persons who have reached retirement age (as a general rule, women - 55 years old, men - 60 years old; it should be borne in mind that for some categories of workers the retirement age may be lower). Continuation of labor activity after the retirement age does not give grounds for recognizing a person as able-bodied and, accordingly, does not automatically deprive a citizen of the right to inherit as a disabled dependent. It also does not matter whether the dependent was awarded a pension or not, since the right to a mandatory share is associated with the fact of reaching retirement age, and not with the fact of granting a pension;

2) disabled people of I, II, III groups, including disabled since childhood. Disabled people of groups I and II are considered completely disabled. Disabled people of group III are considered to have partially lost their ability to work, however, given that they, as a rule, cannot fully provide for themselves and need social protection, they should also be classified as disabled when deciding on inheritance;

3) persons under the age of 16, as well as students under the age of 18, students and graduate students under the age of 23.

Disability is confirmed by relevant documents. In particular, a passport, a birth certificate confirm the disability of a citizen by age. If a citizen is assigned a pension, the fact of incapacity for work can be confirmed by the presence of a pension certificate. To confirm the fact and group of disability, a conclusion of a medical and social examination is submitted.

The period of incapacity for work does not matter for the call to inherit dependents: the main thing is that at the time of opening the inheritance, incapacity for work occurs.

Dependency has legal significance if it lasted at least a year before the death of the testator. Thus, a dependent that lasted less than a year, or, although it lasted more than a year, but ceased long before the death of the testator, does not give grounds for a call to inherit.

Disabled dependents are called to inherit along with the heirs of the line that inherits. At the same time, disabled dependents have equal rights during inheritance both with the heirs of the corresponding line and among themselves, regardless of whether they are heirs of the same line or different ones.

Disabled dependents of the first group inherit equally with the heirs of the order to which they belong. Disabled dependents of the second group, in order to obtain the right to inherit, must prove not only the fact of disability, but also the fact of being dependent on the testator for at least a year and cohabiting with the testator.

In the absence of legal heirs listed in the Civil Code, dependents of the second group acquire an independent right to inherit and are recognized as heirs of the eighth stage. However, such heirs can be subjects of inheritance law only in the case of inheritance by law, since when inheriting by will, these persons can be excluded from the number of heirs by the testator himself.

3.4. Inheritance by surviving spouse. Inheritance in case of adoption

Inheritance by surviving spouse. In accordance with Art. 1150 of the Civil Code, the right of inheritance belonging to the surviving spouse of the testator by virtue of a will or law does not detract from his right to part of the property acquired during marriage with the testator and which is their joint property. The share of the deceased spouse in this property, determined in accordance with Art. 256 of the Civil Code, is part of the inheritance and passes to the heirs in accordance with the rules established by this Code. Thus, after the death of one of the spouses, only the property of the deceased can be included in the estate. Since, as a general rule, the property of the spouses acquired in marriage belongs to them on the basis of the right of joint ownership, the inheritance includes only property constituting the share of the deceased spouse, the amount of which is determined in accordance with the norms of the Civil Code and the Criminal Code.

The property acquired by the spouses during marriage (common property of the spouses) includes the income of each of the spouses from labor activity, entrepreneurial activity and the results of intellectual activity, pensions, allowances received by them, as well as other cash payments that do not have a special purpose (amount of material assistance, amounts paid in compensation for damage in connection with disability due to injury or other damage to health, etc.). Movable and immovable things acquired at the expense of the joint income of the spouses, securities, shares, deposits, shares in capital contributed to credit institutions or other commercial organizations, and any other property acquired by the spouses during the marriage, are also considered common property of the spouses, regardless of whether in the name of which of the spouses it was acquired or in the name of which or by which of the spouses the funds were deposited (paragraph 2 of article 34 of the UK).

The property of each of the spouses may be recognized as their joint property if it is established that during the marriage, investments were made from the common property of the spouses or the personal property of one spouse that significantly increased the value of this property (major repairs, reconstruction, re-equipment, etc. ).

By virtue of Art. 256 of the Civil Code, art. 36 of the UK is not joint property of the spouses property that belonged to each of them before marriage, as well as received by one of the spouses during marriage as a gift, or by inheritance, or under other gratuitous transactions (property of each of the spouses). Things for individual use (clothing, shoes, etc.), with the exception of jewelry and other luxury items, although acquired during marriage at the expense of the joint funds of the spouses, are recognized as the property of the spouse who used them.

Spouses have equal rights to common property, regardless of the method of participation in the formation of joint property. The property of the spouses exists in the regime of joint ownership and in the event of the death of one of the spouses it is subject to division in equal shares, since in this case the existence of joint property ceases.

The total debts of the spouses in the division of the common property of the spouses are distributed among the spouses in proportion to the shares awarded to them (clause 3, article 39 of the UK).

The legislation recognizes the right of spouses to establish by agreement a different regime for property acquired by them during marriage. The division of the common property of the spouses may be carried out during the period of marriage by their agreement or by a court decision - on the basis of the claim of any of the spouses, as well as in the event that the creditor claims the division of the common property of the spouses in order to levy execution on the share of one of the spouses in the common property of the spouses. In the case of the division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the marriage in the future, constitute their joint property (Article 38 of the UK). The division of common property between spouses can be carried out after a preliminary determination of the share of each of the participants in the right to common property (Article 254 of the Civil Code).

As a general rule, in accordance with Art. 38 of the UK, when dividing the common property of the spouses, the court, at the request of the spouses, determines what specific property is to be transferred to each of the spouses. If property is transferred to one of the spouses, the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.

It should be taken into account that things purchased exclusively to meet the needs of minor children (clothes, shoes, school and sports equipment, musical instruments, a children's library, etc.) are not subject to division and are transferred without compensation to the spouse with whom the children live. When dividing the common property of the spouses, contributions made by the spouses at the expense of the common property of the spouses in the name of their common minor children are not taken into account (Article 38 of the RF IC).

When dividing property, the court has the right to deviate from the beginning of the equality of the shares of spouses in their common property based on the noteworthy interest of one of the spouses, in particular in cases where the other spouse did not receive income for unjustified reasons or spent the spouses' common property to the detriment of the interests of the family. 2 article 39 UK).

The norms of the Civil Code of the Russian Federation on joint and shared ownership are also applicable to these relations.

Thus, only the personal property of the deceased spouse, as well as his share in the common property of the spouses jointly acquired in marriage, is subject to inheritance. In the event of a division of property, that part of the property, the rights to which are reserved for the testator, as well as the property that the spouses have acquired after the division of the previously acquired property, is transferred by inheritance. The rules for determining the shares of spouses in common property during its division and the procedure for such division are established by the legislation on marriage and family.

In case of division of common property after the death of one of the spouses, the heirs may demand the determination of the property constituting the share of the testator. After determining and, if necessary, separating the share of the deceased spouse from the common property, the inheritance of the entire resulting estate proceeds according to the general rules established in part three of the Civil Code. At the same time, the surviving spouse has the same inheritance rights in relation to the property of the deceased spouse, and in particular his share in the common property of the spouses, as well as all other heirs called to inherit by will, if he is one of the heirs by will or by law.

By law, the surviving spouse is called upon to inherit first. However, it should be borne in mind that, by virtue of Art. 1149 of the Civil Code, the surviving disabled spouse has the right to an obligatory share in the inheritance of the deceased. This means that if there is a will in favor of another person, such a spouse may be called to inherit.

Inheritance in case of adoption. Article 1147 of the Civil Code equates to blood relatives (relatives by origin) the adopted child and his offspring, on the one hand, and the adoptive parent and his relatives, on the other. In accordance with paragraph 2 of this article, the adopted child and his offspring do not inherit by law after the death of the parents of the adopted child and his other relatives by origin, and the parents of the adopted child and his other relatives by origin do not inherit by law after the death of the adopted child and his offspring, with some exceptions . So, according to paragraph 3 of this article, in the case when, in accordance with the UK, the adopted child retains, by court decision, relations with one of the parents or other relatives by origin, the adopted child and his offspring inherit by law after the death of these relatives, and the latter inherit by law after death of the adopted child and his offspring.

By decision of the court, the legal ties of the adopted child and blood relatives may be preserved in the following cases.

1. When a child is adopted by one person, the rights and obligations (both property and non-property) may be preserved at the request of the mother, if the adopter is a man, or at the request of the father, if the adopter is a woman.

2. In cases of death of the parents (or one of them), at the request of the child's grandparents, relations (both property and non-property) with respect to the relative of the deceased parent may be preserved. In this case, the consent of the adoptive parent is not required, since the court must be guided by the interests of the child.

In these situations, the adopted child will inherit both from blood relatives who have retained legal ties with him, and from the adoptive parents, and after the death of the adopted child, both the adoptive parents and blood relatives will respectively inherit.

3.5. Presentation Inheritance

Heirs by law also include heirs who are called to inherit by right of representation. This category should be distinguished from hereditary transmission and from recognition to inheritance of a sub-designated heir:

- in case of hereditary transmission (transfer of the right to accept an inheritance), the heir called to inherit dies after the opening of the inheritance, not having time to accept the inheritance, and in case of inheritance by right of representation, the heir dies before the testator, i.e. before the opening of the inheritance;

- a sub-designated heir is appointed by the testator in the event that the main designated heir dies before the opening of the inheritance or renounces the inheritance after it opens, and the right of representation implies the possibility of occupying the place during the inheritance that would belong to a relative ascending in a straight line, if he could inherit at the time discovery of inheritance.

The calling of heirs to inherit by right of representation occurs only in the presence of a number of special conditions provided for by law and is characterized by a certain originality. Thus, when inheriting by way of presentation, the share of the inheritance due to the direct heir is divided equally among the heirs by way of presentation.

The share of the heir by law, who died before the opening of the inheritance or simultaneously with the testator, passes by right of representation to the corresponding descendants:

- heirs of the second order by the right of representation are inherited by the nephews and nieces of the testator - children of full and half brothers and sisters of the testator;

- to the heirs of the third stage - cousins ​​​​and sisters - children of the uncle and aunt of the testator.

The descendants of an heir of any line of succession by law, deprived of the inheritance by the testator, as well as an heir who died before the opening of the inheritance or simultaneously with the testator and who would not have the right to inherit, shall not inherit by right of representation.

3.6. Shares of heirs

The Civil Code repeatedly emphasizes that property by inheritance passes to the heirs in equal shares. In fact, inheritance shares are not always equal. Thus, the surviving spouse is entitled to a half share in the jointly acquired property and inherits equally with other heirs in the second half, so that the spouse usually has a larger share. Grandchildren and nephews who inherit by right of representation (Article 1146 of the Civil Code) receive the share of their father or mother who died before the opening of the inheritance, therefore, if there are more than one of them, they receive the corresponding share of their parent, divided by the number of grandchildren or nephews.

The shares are also different with hereditary transmission (Article 1156 of the Civil Code). If the heir, called to inherit by law or by will, died some time after the opening of the inheritance, but before the expiration of the period established for accepting the inheritance, without having time to accept the inheritance or refuse it, the right not exercised by him will pass to his heirs. For example, after Ivanov's death, his son Peter died four months after his father's death, before he could accept his share of the inheritance. This share will not go to other heirs of Ivanov, but to the heirs of Peter, who may be several, and their shares will not be equal to the rest of the heirs. This is explained by the fact that with hereditary transmission there are two inheritances: first after Ivanov, and then after Peter.

Thus, the third part of the Civil Code provides:

1) equal shares (Article 1141 of the Civil Code);

2) mandatory shares of the necessary heirs (Article 1149 of the Civil Code);

3) shares of heirs in the bequeathed property (Article 1122 of the Civil Code);

4) the share of the surviving spouse (Article 1150 of the Civil Code);

5) share in case of inheritance by right of representation (Article 1146 of the Civil Code);

6) increment of hereditary shares (Article 1161 of the Civil Code).

7) finally, the shares can be determined by the heirs themselves (Article 1165 of the Civil Code).

With such a variety of hereditary shares, it cannot be argued that they are equal.

3.7. Inheritance of escheated property

Background of the issue. Despite the fact that in the third part of the Civil Code, the rules on inheritance by will precede the rules on inheritance by law (which, according to most authors, speaks of the complementary, secondary function of inheritance on the basis of the law), it is the basis for entering into inheritance legal relations on the basis of the law that is the main state involvement in inheritance relations. Such participation has a long history. Even in ancient Rome, from where the institute of escheated property came from, Emperor Augustus determined that any escheated property goes to the treasury. In Western Europe, over the past two or three centuries, theoretical discussions have systematically arisen around the participation of the state in hereditary legal relations, although they have not found practical implementation. Representatives of various utopian theories were especially interested in this question. For example, some of the followers of A. Saint-Simon suggested establishing special banks that were supposed to distribute the inheritance, but not between relatives, but between the so-called worthy. It was even proposed to abolish inheritance in general, but only after the proletarian revolution, which was supposed to take place and eliminate the institution of private property as such (K. Marx and F. Engels). Ultimately, all ideas to turn the state into an obligatory heir, in particular in France, ended up with nothing more than the introduction of inheritance taxes, which, however, had already been done by the aforementioned Roman emperor. Some Western European ideas regarding the role of the state in inheritance legal relations were implemented in Russia. The state in the process of evolution of inheritance legislation received the role of the main acquirer of inheritances (1918-1926), then the main acquirer (1926-1964), then the privileged acquirer (1964-2002).

So, the Decree of April 18, 1918 "On the abolition of inheritance" declared the state to be the main acquirer of the inheritance. The entire inheritance was transferred under the control of the Soviets at the place of the last residence of the testators. The relevant Council (represented by the department in charge of social security) allocated some part of the property to the relatives of the deceased listed in the Decree. This part was designated as "labor economy in the city and countryside". The state, as the main acquirer of the inheritance, received property even in the case when none of the relatives included in the list presented in the Decree was present. However, it should be noted that the Decree did not allocate escheated property in a separate case of acquisition. Such an acquisition was provided for in the developed mechanism: if there were no relatives, then all the property remained with the state.

The Civil Code of the RSFSR of 1922 further strengthened the position of the state as the main acquirer of inheritances. Thus, he retained the system of allocation by the state to persons close to the testator of a share of the inheritance, which did not exceed 10 thousand rubles. gold, by court order. Acquisition of escheated property by the state was singled out as a special case. It was this acquisition that received special attention. First of all, the circle of legal heirs was narrowed to expand cases of escheat. Further, it was forbidden to make wills in favor of persons not included in the circle of heirs by law. Other rules were established to ensure the role of the state as the main acquirer of the inheritance, for example, a ban on the renunciation of inheritance property in favor of a specific person and an increase in the shares of co-heirs. The rule that the inheritance must be accepted within six months, in 1922 and in subsequent years, was mainly aimed at removing from inheritance those who fled the country after the events of 1917.

In 1926, the system of allocating part of the inheritance from the property of the deceased was abolished, but all other rules that underlay the role of the state in the field of inheritance remained in force: it remained the main acquirer of property. The acquisition by the state of escheated property, based both on narrowing the circle of heirs by law and on the prohibition of wills in favor of persons who were not included in the circle of persons named in the Civil Code, came to the fore. The injustice of this situation became especially clear in 1941-1945, since, according to the Civil Code of the RSFSR of 1922, parents could not be heirs either by law or by will, and many who died at the front were too young to leave descendants.

The Civil Code of the RSFSR of 1964 took another step in ensuring the special rights of the state in the field of inheritance, devoting this issue to Art. 552 "Transfer of inheritance to the state". In this chapter, all cases of transfer of inherited property to the state were exhaustively listed, namely: 1) the absence of heirs by law and by will; 2) the presence of a will in favor of the state; 3) non-acceptance by the heirs of the inherited property; 4) deprivation of heirs by the testator of the right to inherit.

When the law establishes that the transfer of escheated property to the Russian Federation constitutes inheritance, it thereby determines the place of Russian law among the national systems of inheritance law present in the modern world. The great importance of Art. 1151 of the Civil Code, which regulates relations for the acquisition of property that is escheat, is that the state, undoubtedly, remaining a participant in inheritance relations, no longer occupies an exaggerated role and cannot be considered as the main acquirer of the property of the deceased. Now the state in Russia plays the same role in the field of inheritance as in other civilized countries. The state is no longer the acquirer of the inheritance, it simply receives a single escheated property. At the same time, it should be borne in mind that the Civil Code significantly increased the number of lines of heirs by law: in the Civil Code of the RSFSR of 1964 there were only two lines of heirs by law.

The order of inheritance of escheated property. The content of the right belonging to the state to inherit escheated property differs significantly from the rights of inheritance arising on other grounds from heirs by law or by will. When inheriting escheated property under the law, the state is the only successor who is not entitled to refuse to accept the inheritance and for which there is no need to perform any actions aimed at the formal or actual acceptance of the inheritance, which is specifically provided for in paragraph 1 of Art. 1152 and paragraph 1 of Art. 1157 GK.

Article 1151 of the Civil Code establishes a list of cases when the property of the deceased is recognized as escheat. This list is exhaustive and not subject to extended interpretation. In accordance with paragraph 1 of this article, the property of the testator is recognized as escheated:

1) if there are no heirs by law and by will;

2) none of the heirs has the right to inherit, or all the heirs are removed from the inheritance, i.e., they are recognized as unworthy heirs (Article 1117 of the Civil Code);

3) none of the heirs accepted the inheritance;

4) all the heirs renounced the inheritance, and at the same time, none of them indicated that they were refusing in favor of another heir (Article 1158 of the Civil Code).

In the context of recognizing property as escheat, the legislator uses the wording that there are no other heirs. Thus, citizens are "absent" if, for example, they are not alive at the specified moment. A legal entity is "absent" (in the context of this article) if it does not exist on the day the inheritance is opened.

The second indication contained in the list of grounds for recognizing property as escheat does not need comments, since the law makes a direct reference to the corresponding article of the Civil Code, called "Unworthy heirs."

As for the situation when none of the heirs accepted the inheritance, here the law means the acceptance of the inheritance by filing an application by the heir, and, moreover, within a certain period established in paragraph 1 of Art. 1154 GK. Otherwise, exhaustion ensues. However, do not forget about the so-called actual acceptance of the inheritance. Escheat does not occur if any of the heirs has committed actions indicating the acceptance of the inheritance, the list of which is provided for in paragraph 2 of Art. 1153 GK. Thus, escheat does not arise in cases where, in respect of any of the heirs who did not submit the relevant application within the prescribed period, there is a presumption of acceptance of the inheritance by them.

The situation when all the heirs renounced the inheritance, and at the same time none of them indicated that they were refusing in favor of another heir, also does not need comments, since the law makes a special reference to Art. 1158 of the Civil Code "Renunciation of the inheritance in favor of other persons and renunciation of part of the inheritance."

Despite the fact that the grounds that entail the recognition of property as escheat, as a rule, are not obvious at the time of opening the inheritance, the law does not provide for a special period during which the issue of the possibility of recognizing property as escheat must be resolved. To legitimize the property of the deceased as escheat, the adoption of an appropriate judicial or other act is not required. It acquires the status of an escheat by virtue of the law, if there are grounds indicated in it, from the day the inheritance is opened and retains this status until the registration of the state's rights to the inheritance. During all this time, in accordance with the law, the protection and management of the inheritance must be ensured in order to transfer it to the treasury of the state. At the same time, it should be remembered that not only the whole property of the deceased can be recognized as escheated, but also a part of it, if this part corresponds to the signs of escheated property. Article 1151 of the Civil Code does not contain direct indications that the property of the deceased may be considered escheated in whole or in part. However, the possibility of recognizing a part of the property of the deceased as escheat does not contradict the meaning of the rules of paragraph 1 of Art. 1151, as well as the essence of those circumstances that are the basis for the emergence of relations of partial escheat of property.

The subject of the right to inherit escheated property is exclusively the Russian Federation. According to paragraph 2 of Art. 1151 of the Civil Code, escheated property passes by way of inheritance under the law into the ownership of the Russian Federation. The fundamentals of legislation on notaries do not provide for the obligation of the state to obtain a certificate of the right to an escheat inheritance. In accordance with the Instruction of the Ministry of Finance of the USSR dated December 19, 1984 No. 185 "On the procedure for accounting, evaluation and sale of confiscated, ownerless property, property transferred by right of inheritance to the state, and treasures" (as amended on August 13, 1991) a document confirming the state's right to inheritance is a certificate issued by a notary authority to a tax authority. At the same time, the Instruction does not provide for the obligation of the state body to obtain the appropriate certificate. According to paragraph 3 of Art. 1151 of the Civil Code, this Instruction is valid until the adoption of a law regulating the procedure for inheritance and accounting for escheated property, as well as the procedure for transferring it to the ownership of subjects of the Russian Federation or to the ownership of municipalities.

Mentioned in paragraph 3 of Art. 1151 law is necessary for the full implementation of the norms of the Civil Code. The main issues that the future law should resolve relate to both accounting for escheated property and issues of its acquisition that are not regulated by the Civil Code itself, for example, to establish which federal body should take possession of things included in escheated property, which of them should pay debts the testator, to participate in relations with other persons claiming the same inheritance or contesting its escheat, etc. than justified. It can be assumed that this law should specify the bodies and persons who will be obliged to identify cases of escheated inheritance and report them to the relevant state authorities, take measures to protect such an inheritance, consisting of movable and immovable things, and manage property in the interests of the state, interact with notarial authorities, ensure the organization and maintenance of accounting, evaluation of escheated inheritances, etc. The law should provide for measures to prevent abuse in this area, forms of liability for violation of the law. In addition, probate proceedings in the courts, due to their specific nature, are usually extremely lengthy. Judicial practice on the issues of succession of escheat property has not yet been developed to a large extent and, due to the rather rare application compared to ordinary inheritance disputes, it will not be formed soon, which is why these issues require the most clear regulatory regulation and the speedy adoption of a special law, designed to resolve this complex issue.

Topic 4. ACQUISITION OF INHERITANCE

4.1. The concept and methods of acceptance of inheritance. Unconditionality and universality of acceptance of inheritance

The procedure and methods for accepting an inheritance are regulated by the norms of Ch. 64 GK. In accordance with paragraph 1 of Art. 1152 of the Civil Code, in order to acquire an inheritance, the heir must accept it. The only exception to this general rule is made for cases of transfer of hereditary property as escheated into the ownership of the Russian Federation in the order of succession by law. In these cases, the Russian Federation, represented by the relevant authorities, does not require a special act of accepting the inheritance to acquire the inheritance.

An inheritance can be accepted for various reasons: by will and by law or by way of hereditary transmission and as a result of the opening of an inheritance, etc. If the heir is called to inherit simultaneously for several reasons, then according to paragraph 2 of Art. 1152 of the Civil Code, he may accept an inheritance due to him on one of these grounds, or on several of them, or on all grounds. In this case, it does not matter whether the heir is called to inherit directly as a result of the opening of the inheritance or as a result of the addition of any additional legal facts to the opening of the inheritance.

The act of accepting an inheritance is universal, that is, it applies to all types of hereditary property. It is not allowed to accept an inheritance under a condition or with reservations (paragraph 2, clause 2, article 1152 of the Civil Code). An heir called to inherit on several grounds, as noted earlier, may accept an inheritance on all of these grounds, or on several of them, or on only one of them, but whatever choice he makes, he cannot accept only a part of what that he may inherit on the grounds on which he is called to inherit.

Ways of accepting an inheritance. Acceptance of an inheritance is possible in two ways: by submitting an appropriate application by the heir and by actually accepting the inheritance.

1. According to the norm of paragraph 1 of Art. 1153 of the Civil Code, the acceptance of an inheritance is carried out by filing at the place of opening of the inheritance to a notary or authorized in accordance with the law to issue certificates of the right to inheritance to an official of the application of the heir to accept the inheritance or the application of the heir to issue a certificate of the right to inheritance. If the heir's application is submitted to a notary by another person or sent by mail, the heir's signature on the application must be certified by a notary, an official authorized to perform notarial acts, or a person authorized to certify powers of attorney.

According to the rules of par. 3 p. 1 art. 1153 of the Civil Code, it is possible to accept an inheritance through a representative, if the power of attorney specifically provides for the authority to accept the inheritance. Such a power of attorney can only be certified by a notary or other official authorized to perform notarial acts.

Legal representatives (for example, parents or guardians of a minor) do not need a power of attorney to accept an inheritance, they present an appropriate document to confirm their authority (a birth certificate of a child or a decision of the guardianship and guardianship authority to appoint a guardian).

2. In accordance with the rules of paragraph 2 of Art. 1153 of the Civil Code, it is recognized, until proven otherwise, that the heir accepted the inheritance if he performed actions indicating the actual acceptance of the inheritance, in particular if the heir:

a) entered into possession or administration of the estate;

b) took measures to preserve hereditary property, protect it from encroachments or claims of third parties;

c) incurred expenses for the maintenance of the estate at his own expense;

d) paid at his own expense the debts of the testator;

e) received from third parties the funds due to the testator.

In paragraph 2 of Art. 1153 of the Civil Code lists only a few, the most common actions, the commission of which indicates the actual acceptance of the inheritance by the heir. No exhaustive list of such actions can be given. In notarial practice, proving the fact of the timely entry into possession or use of the property of the testator is carried out in various ways. So, the evidence of the actual acceptance of the inheritance, depending on the specific situation, may be:

- certificate of the housing maintenance organization (or local administration or housing construction cooperative) that the heir lived together with the testator at the time of his death. The actual acceptance of the inheritance will also be evidenced by the fact that the heir lived in the inherited house (apartment), even if the testator himself lived in another place;

- a certificate from the indicated authorities that before the expiration of six months from the date of opening the inheritance, the heir took any property of the testator. The number of things taken and their value have no legal significance;

- a certificate from the tax inspectorate on the payment by the heir of taxes on real estate owned by the testator, or a receipt for the payment of taxes on behalf of the heir;

- the presence of the testator's savings book by the heir, provided that the notary will have data on receipt by the heir before the expiration of the statutory period for accepting the inheritance (receipt by a specific heir of a sum of money for the testator's funeral; availability of an inventory act of the notary who took measures to protect the inheritance property and who transferred the savings book for safekeeping to the heir, etc.);

- a certificate from the local administration stating that the heir took care of the inherited house (apartment), made repairs in it;

- a certificate from the local administration stating that the heir planted any plantings on the land that belonged to the testator by right of ownership; and so on.

The method of accepting the inheritance by actual actions does not exclude the subsequent appeal of the heir to the notary with an application for the issuance of a certificate of the right to inheritance. If the heir does not have sufficient evidence for the notary to accept the inheritance by actual actions, the fact of acceptance of the inheritance may be established by the court in the procedure for considering cases on the establishment of facts of legal significance.

4.2. Deadline for accepting an inheritance. Consequences of the expiration of the term for the acceptance of an inheritance, the grounds for accepting an inheritance after the expiration of this period

In accordance with the rules of paragraph 1 of Art. 1154 of the Civil Code, an inheritance can be accepted within six months from the date of opening the inheritance. If an inheritance is opened on the day of the alleged death of a citizen, the inheritance may be accepted within six months from the date of entry into force of the court decision declaring him dead.

If the right to inherit arises for other persons as a result of the refusal of the heir from the inheritance or the removal of the heir on the grounds established by Art. 1117 of this Code (unworthy heirs), such persons may accept the inheritance within six months from the date they have the right to inherit (paragraph 2 of article 1154 of the Civil Code). Persons for whom the right to inherit arises only as a result of non-acceptance of the inheritance by another heir may accept the inheritance within three months from the date of expiration of the period specified in paragraph 1 of Art. 1154 of the Civil Code (i.e., after six months).

At the request of an heir who missed the deadline established for accepting the inheritance, the court may restore this deadline and recognize the heir as accepting the inheritance: a) if the heir did not know and should not have known about the opening of the inheritance; b) missed this deadline for other valid reasons and provided that the heir who missed the deadline established for accepting the inheritance went to court within six months after the reasons for missing this deadline disappeared. After recognizing such an heir as having accepted the inheritance, the court determines the shares of all heirs in the inherited property and, if necessary, determines measures to protect the rights of the new heir to receive his share of the inheritance. Previously issued certificates of the right to inheritance are declared invalid by the court (clause 1 of Article 1155 of the Civil Code).

In accordance with the rules of paragraph 2 of Art. 1155 of the Civil Code, an inheritance can be accepted by the heir after the expiration of the period established for its acceptance, without going to court, subject to the written consent of all the other heirs who have accepted the inheritance. The consent of the heirs is the basis for the cancellation by the notary of the previously issued certificate of the right to inheritance and the basis for issuing a new certificate. If, on the basis of a previously issued certificate, state registration of rights to real estate was carried out, a notary's decision to cancel the previously issued certificate and a new certificate are the basis for making appropriate changes to the record of state registration.

4.3. hereditary transmission

According to the rules of art. 1156 of the Civil Code, if the heir, called to inherit by will or by law, died after the opening of the inheritance, without having time to accept it within the prescribed period, then the right to accept the inheritance due to him passes to his heirs by law, and if all the inheritance property was bequeathed - to to his heirs by will (hereditary transmission). The right to accept an inheritance in the order of hereditary transmission is not included in the composition of the inheritance opened after the death of such an heir.

The following persons participate in the relations of hereditary transmission: 1) the testator; 2) an heir who died without having time to accept the inheritance is a transmitter; 3) his heir-transmissary. Both the transmitter and the transmitter can be heirs both by law and by will.

A hereditary transmission takes place only if no sub-appointed heir is specified in the will. According to the rules of art. 1121 of the Civil Code, if the testator does not want his property to pass to the heir's heirs, he may sub-appoint another heir. Thus, the sub-appointment of an heir in a will (hereditary substitution) does not allow hereditary transmission. However, if the sub-appointed heir dies before accepting the inheritance, the transmission is restored, i.e. the right to receive the inheritance does not pass to the heirs of the sub-appointed heir, but to the heirs of the testator. If the latter does not wish this, he may appoint another heir(s).

According to the rules of paragraphs 2 and 3 of Art. 1156 of the Civil Code, the right to accept an inheritance that belonged to a deceased heir may be exercised by his heirs on a general basis. If the remaining part of the period established for the acceptance of the inheritance after the death of the heir is less than three months, it shall be extended to three months. After the expiration of the period established for accepting the inheritance, the heirs of the deceased heir may be recognized by the court as accepting the inheritance in accordance with Art. 1155 of this Code, if the court finds valid reasons for missing this deadline. The right of the heir to accept part of the inheritance as a mandatory share is not subject to hereditary transmission.

4.4. Renunciation of inheritance, types and procedure for its registration

According to the rules of Art. 1157 of the Civil Code, the heir has the right to refuse the inheritance in favor of other persons or without specifying the persons in whose favor he refuses the inheritance property.

Renunciation of an inheritance is a unilateral transaction, consisting in the commission of legal actions indicating the unwillingness of the heir to receive the property of the testator, namely, in filing the relevant application of the heir to a notary or court. Failure to perform actual actions is not a renunciation of the inheritance, but a non-acceptance of the inheritance.

When inheriting escheated property, the refusal of the inheritance is not allowed (paragraph 2, clause 1, article 1157 of the Civil Code).

The heir has the right to refuse the inheritance within the period established for accepting the inheritance, i.e. within six months, including in the case when he has already accepted the inheritance. If the heir has committed actions that testify to the actual acceptance of the inheritance, the court may, upon the application of this heir, recognize him as having renounced the inheritance and after the expiration of the established period, if he finds the reasons for missing the period valid. Thus, the renunciation of the inheritance is possible after the expiration of the six-month period in the presence of the following circumstances:

1) the heir accepted the inheritance not by submitting an appropriate application to a notary, but by performing actions indicating the actual acceptance of the inheritance;

2) the heir, who actually accepted the inheritance, applied to the court to recognize him as refusing to accept the inheritance (although the deadlines for refusal have already expired);

3) the court recognized the reasons for missing such deadlines as valid.

From the moment the court decision enters into legal force, the renunciation of the inheritance is considered to have taken place, and the consequences provided for by law occur. According to the norm of paragraph 3 of Art. 1157 of the Civil Code, the renunciation of an inheritance cannot be subsequently changed or taken back.

According to the rules of Art. 1159 of the Civil Code, the renunciation of an inheritance is made by filing at the place of opening of the inheritance to a notary or authorized in accordance with the law to issue certificates of the right to inheritance to an official of the application of the heir to renounce the inheritance. In the event that an application for renunciation of an inheritance is submitted to a notary not by the heir himself, but by another person or sent by mail, the signature of the heir on such an application must be duly certified. Renunciation of an inheritance through a representative is possible if the power of attorney specifically provides for the authority to such a refusal. A power of attorney is not required for the refusal of the legal representative from the inheritance.

In accordance with paragraph 4 of Art. 1157 of the Civil Code, the refusal of an inheritance in the case when the heir is a minor, incapacitated or partially capable citizen is allowed with the prior permission of the guardianship and guardianship authority. Subsequent approval by the body of guardianship and guardianship of the renunciation of the inheritance is not allowed. Failure to comply with these requirements entails the invalidity (insignificance) of the refusal to accept the inheritance as a transaction that does not comply with the requirements of the law.

The rules of Art. 1158 of the Civil Code provides for the renunciation of an inheritance in favor of other persons and the renunciation of part of the inheritance. The heir has the right to refuse the inheritance in favor of other persons from among the heirs by will or heirs by law of any order, not deprived of the inheritance, including in favor of those who are called to inherit by the right of representation or by way of hereditary transmission. Refusal of inheritance in favor of other persons is not allowed.

Cancellation in favor of any of the following persons is not allowed:

1) from property inherited by will, if all the property of the testator is bequeathed to the heirs appointed by him;

2) from the mandatory share in the inheritance;

3) if an heir has been assigned to the heir.

Renunciation of an inheritance - both targeted, i.e. in favor of a specific person, and non-addressed, i.e. without specifying a specific person - can only be unconditional, unconditional and complete. Refusal of the inheritance with reservations, under the condition and refusal of part of the inheritance due to the heir is not allowed. However, if the heir is called to inherit simultaneously on several grounds (by will and by law or by way of hereditary transmission and as a result of the opening of an inheritance, etc.), he has the right to refuse the inheritance due to him on one of these grounds, on several of them or for all reasons. Accordingly, if the heir refuses to accept the inheritance on one of the grounds, he can do it in someone's favor.

A renunciation of an inheritance, like any other transaction, can be challenged. Most often there are claims for the recognition of the renunciation of the inheritance as invalid due to the fact that it was committed:

- by a person who was not able at that moment to understand the meaning of his actions or to direct them;

- under the influence of delusion;

- under the influence of deceit, violence, threats, etc.

4.5. Increment of hereditary shares

The increment of hereditary shares is a method of acquiring inherited property, established in the event that one of the called heirs did not take part in the hereditary succession and did not acquire the part of the inheritance due to him.

The main content of relations for the increment of hereditary shares lies in the fact that the part of the inheritance that would have been due to the called but fallen heir passes to the heirs who were called to inherit and accepted the inheritance. A person called to inherit, but who has not exercised his right to inherit, loses the opportunity to be an assignee, and this lost opportunity does not pass from him to any other heirs.

In its legal essence, the increment is a mechanism for recalculating hereditary shares in the whole inheritance, taking into account the falling away of the heir from inheritance. Acquisition of an inheritance in the order of increment of hereditary shares is carried out by the heirs in accordance with the grounds for inheritance by will or by law.

The conditions and grounds for acquiring an inheritance by means of an increase in hereditary shares are specified directly in the law.

The first condition is the presence of heirs called to inherit by law or by will, or both by law and by will. At the same time, the number of such joint heirs must be at least two; a smaller number of simultaneously called successors eliminates the need to apply the rules on incrementing the share of the fallen heir to the shares of other called heirs. If a single heir was called to inherit and he fell away from inheritance, a situation arises that requires the application not of the rules on the increment of hereditary shares, but of the rules that ensure the calling of another heir in accordance with the grounds for inheritance.

The second condition is the falling away of the called heir from inheritance, and the falling away only on the grounds provided for by the provisions of Art. 1161 GK. The disappearance of an heir due to other circumstances will require the application of other rules for calling to the inheritance and acquiring an inheritance, but not the rules for the increment of hereditary shares. This increment condition is also valid in cases where the heir, who is called simultaneously on several grounds, disappears on one, several or all grounds of inheritance (clause 2 of article 1152, clause 3 of article 1158 of the Civil Code).

The third condition is the acceptance of the inheritance by other, except for the one who has fallen away, heirs called to inherit on the same or another basis of inheritance. Acceptance of the inheritance by other called heirs makes it possible to increase the shares of the inheritance, since the act of accepting the inheritance refers either to the entire inheritance, regardless of the grounds for inheritance, including the part of the inheritance that would be due to the fallen heir, or to the inheritance, regarding the acceptance of which the choice of the basis of inheritance was made, and therefore the basis of the right of inheritance belonged to the fallen heir.

The grounds for the increment of hereditary shares are specified in Art. 1161 GK in an exhaustive way. These include:

a) non-acceptance of the inheritance by the heir called to inherit by law or by will;

b) the heir’s refusal of the inheritance without indicating the persons in whose favor he is refusing the inheritance property (unconditional, unaddressed, undirected refusal of the inheritance);

c) unworthiness of inheritance on the grounds of paragraph 1 of Art. 1117 of the Civil Code, by virtue of which the heir by law or by will is recognized as having no right to inherit, as well as the unworthiness of inheritance on the grounds of paragraph 2 of Art. 1117 of the Civil Code, according to which the heir is legally removed from inheritance by a court decision;

d) invalidity of the will, if such invalidity entails the loss of the right to inherit by the person appointed as the heir under the will.

The sub-appointment of another heir by the testator in the event that the first appointed heir does not accept the inheritance or refuses it, or falls away from inheritance on other grounds, does not create relations for the increment of hereditary shares.

Topic 5. TAKING MEASURES TO PROTECT HERITAGE PROPERTY AND MANAGE THEM

5.1. Purposes of taking measures to protect hereditary property. The concept and types of protective actions performed by a notary

In order to protect the rights of heirs and other interested persons (legatees, creditors, the state), the executor of the will or the notary at the place of opening of the inheritance takes measures to protect and manage the inheritance. In cases stipulated by law, such measures must be taken directly by officials of local self-government bodies or consular institutions of the Russian Federation.

From the position of the current Civil Code, the adoption by a notary of measures for the protection of hereditary property and its management begins with the acceptance of an application from one or more heirs, an executor of a will, a local government body, a guardianship and guardianship authority, or other persons acting in the interests of preserving hereditary property (paragraph 1 of Art. 1171 GK).

According to the rules of paragraph 2 of Art. 1171 of the Civil Code, the notary takes measures to protect the inheritance and manage it at the request of one or more heirs, the executor of the will, the local government, the guardianship and guardianship authority or other persons acting in the interests of preserving the inheritance property. In the case when the executor of the will is appointed, the notary takes measures to protect the inheritance and manage it in agreement with the executor of the will.

The executor of the will takes measures to protect the inheritance and manage it independently or at the request of one or more heirs.

Notary in the cases provided for by Art. 64, 65 of the Fundamentals of Legislation on Notaries, proceeds to take measures to protect hereditary property within the time frame that ensures its safety: as a rule, no later than three working days from the date of receipt of a message about hereditary property or an instruction to take measures to protect it.

Actually measures for the protection of hereditary property are:

1) inventory of hereditary property. In paragraph 1 of Art. 1172 of the Civil Code provides that in order to protect the inheritance it is necessary to describe it. The inventory is made in the presence of two witnesses. The requirements for witnesses are established by paragraph 2 of Art. 1124 GK;

2) making money on the notary's deposit. According to the rules of paragraph 2 of Art. 1172 of the Civil Code, the funds related to the inheritance are deposited with the notary;

3) transfer for storage to the appropriate organizations. Currency valuables, precious metals and stones, products made from them, securities that do not require management are transferred to the bank under a storage agreement, with a safe document provided to the notary. The maximum amount of remuneration under the contract for the storage of hereditary property is established by the Government of the Russian Federation (clause 6 of article 1171 of the Civil Code);

4) transfer of weapons to the internal affairs bodies. If a weapon is included in the hereditary property, the notary notifies the internal affairs bodies of this. In accordance with the Federal Law of December 13, 1996 No. 150-FZ "On Weapons", weapons included in the inheritance until the issue of inheritance is resolved and a license to acquire civilian weapons is immediately seized for safekeeping by the internal affairs bodies that registered the said weapons.

If inheritance is carried out according to a will in which its executor is indicated, then all necessary measures for the protection of the inheritance are performed by the executor of the will in accordance with the rules indicated above.

In order to identify the composition of the inheritance and its protection, banks, other credit organizations and other legal entities are obliged, at the request of a notary, to inform him of the information available to these persons about the property that belonged to the testator. The notary public can report the received information only to the executor of the will and heirs (clause 3 of article 1171 of the Civil Code).

The notary shall take measures for the protection of the inheritance and its management within the period determined by the notary, taking into account the nature and value of the inheritance, as well as the time required for the heirs to take possession of the inheritance, but not more than within six months, and in the cases provided for in paragraph 2 and 3 Art. 1154sp. 2st. 1156 of the Civil Code, no more than within nine months from the date of opening the inheritance. The executor of the will carries out measures for the protection of the inheritance and its management during the period necessary for the execution of the will (paragraph 4 of article 1171 of the Civil Code).

In the case when the hereditary property is located in different places, the notary at the place of opening of the inheritance sends through the justice authorities to the notary at the location of the relevant part of the hereditary property a binding order for the protection of this property and its management. If the notary at the place of opening of the inheritance knows who should take measures to protect the property, such an order is sent to the appropriate notary or official (clause 5 of article 1171 of the Civil Code).

5.2. The procedure for the production of an inventory of hereditary property. Description act. The procedure for drawing up an act of inventory on the absence of hereditary property

In accordance with the Guidelines for the performance of certain types of notarial acts by notaries of the Russian Federation, approved by order of the Ministry of Justice of Russia dated March 15, 2000 No. 91, a notary, when applying measures to protect hereditary property, makes an inventory of hereditary property in the presence of two witnesses. According to the norm of paragraph 1 of Art. 1172 of the Civil Code, during the production of an inventory of property, the executor of the will, heirs and, in appropriate cases, representatives of the guardianship and guardianship authority may be present.

The listing document states:

1) the surname, name, patronymic of the notary making the inventory, the date and number of the order of the body of justice on the appointment of a notary, his notary district or the name of the state notary's office;

2) the date of receipt of a notification about the estate or an instruction to take measures to protect the estate;

3) the date of production of the inventory, information about the persons participating in the inventory;

4) last name, first name, patronymic and last permanent place of residence of the testator, the time of his death and the location of the described property;

5) whether the premises were sealed before the appearance of the notary and by whom, whether the seal or seal was not broken;

6) a detailed description of each of the items of the described hereditary property.

On each page of the inventory act, a total of the number of described things (objects) is summed up, at the end of the inventory - a total of the number of things (objects).

The act of inventory includes all property, including the personal belongings of the testator. Statements of individuals or legal entities about the ownership of certain things by them are entered in the inventory act, and the interested persons are explained the procedure for applying to the court with a claim to exclude this property from the inventory.

If the production of the property inventory is interrupted (break for lunch, end of the working day, etc.) or continues for several days, the premises are each time sealed by a notary. In the inventory act, a record is made of the reasons and time for the termination of the inventory and its renewal, as well as the state of seals and seals during subsequent openings of the premises.

At the end of the act, information about the person to whom the described property was transferred for storage is indicated, and a note is made about warning him of liability in accordance with the law, including art. 312 of the Criminal Code ("Illegal actions in relation to property subjected to an inventory or arrest or subject to confiscation"). The person shall sign the act on the warning of liability.

The inventory act is drawn up in at least three copies. All copies are signed by a notary, interested persons (if they took part in the inventory) and witnesses.

If it is not possible to take measures to protect the inheritance property (heirs or other persons who lived with the testator object to the inventory, do not present the property for the inventory, or the property has been taken out, etc.), the notary draws up an act about this and notifies the interested parties, and in necessary cases - an authorized body of state power or local self-government.

The notary shall report the property of historical, scientific, artistic or other cultural value identified during the inventory to the relevant state authorities or local self-government.

Weapons, ammunition and explosives found in the property of the deceased are transferred to the internal affairs bodies according to a separate inventory.

5.3. Responsible property custodian. His rights and obligations

As a general rule, property from the composition of the inheritance, for which no special storage procedure has been established and which does not require its management, the notary transfers under a storage agreement to one of the heirs, and if it is impossible to transfer it to the heirs, to another person at the discretion of the notary. Similar rules have been established for the case when an executor of a will has been appointed, with the difference, however, that the latter may also carry out custody independently. In this case, the relationship between the executor of the will and the notary is built on the model of a storage agreement. In this case, the bailor will be a notary who, in accordance with par. 1 p. 4 art. 1171 of the Civil Code has the right, at its discretion, to choose a custodian if it is impossible to transfer property under a storage agreement to any of the heirs.

The law does not provide for any features for the contract for the storage of hereditary property, with the exception of referring to the competence of the Government of the Russian Federation the establishment of the maximum amount of remuneration under this contract (clause 6 of article 1171 of the Civil Code). However, the storage agreement may be free of charge. Since the domestic doctrine of civil law proceeds from the presumption that the storage agreement is for compensation, the condition that the storage fee is not payable should be included directly in the relevant storage agreement. In the case when the executor of the will acts as the custodian, the compensability of the storage agreement depends on whether the payment of remuneration to him is provided for in the relevant will (Article 1136 of the Civil Code).

Regardless of the amount of remuneration (as well as its availability), the expenses for the storage of hereditary property are subject to reimbursement (clause 2 of article 1174 of the Civil Code) at the expense of this property - before paying debts to creditors, but after reimbursement of expenses associated with the illness and funeral of the testator, in proportion to the value of the inherited property passed to each of the heirs.

For the rest, the rules on the storage agreement (§ 1 of Chapter 47 of the Civil Code), in particular, defining the obligations of the parties (Articles 889-900, 904 of the Civil Code), the grounds and amount of liability of the custodian (Article 901, 902 of the Civil Code) and bailor (Article 903 of the Civil Code).

As a general rule, the custodian is responsible for the loss, shortage or damage to property accepted for storage, if there is fault. At the same time, a professional custodian, i.e. a custodian engaged in entrepreneurial activity, is liable, unless he proves that the loss, shortage or damage to the inheritance property occurred due to force majeure, or because of the properties of the thing, about which the keeper, accepting it for storage , did not know and should not have known, either as a result of intent or gross negligence of the bailor (paragraph 1 of article 901 of the Civil Code). With regard to the contract for the storage of hereditary property, concluded by a notary, this means that if the custodian is guilty, the notary has the right to present claims against him for damages, and not his own losses (the notary is not the owner of the hereditary property and, by virtue of paragraph 1 of article 1171 of the Civil Code, concludes storage agreement in order to protect the rights of heirs, legatees and other interested parties), and the losses of the relevant heirs, to whom the inherited property transferred for storage will pass and, accordingly, the amounts received by the notary in compensation for losses associated with loss, shortage or damage should be subsequently transferred hereditary property.

The extent of the custodian's liability depends on whether the storage is for a fee or free of charge. In the first case, losses are subject to compensation in full, i.e. not only real damage, but also lost profits, unless otherwise provided by law or the storage agreement (clause 1 of article 902 of the Civil Code). In case of gratuitous storage, only real damage is compensated (paragraph 2 of article 902 of the Civil Code).

If, in addition to the fault of the custodian, there is also the fault of the notary in the loss, shortage or damage to the property accepted for storage (who, by virtue of paragraph 1 of clause 4 of Article 1171 of the Civil Code, acting at his own discretion, chose as the custodian a person who is obviously not capable of ensure proper storage conditions, or, acting by virtue of paragraph 1 of clause 4 of article 1171 of the Civil Code as a bailor, did not warn the custodian about the properties of the property that led to the loss, shortage or damage of the property deposited, or otherwise contributed to the loss, shortage or damage to property), the notary will be responsible to the relevant heir according to the general rules on tort liability (Article 1064 of the Civil Code).

When determining the conditions and procedure for imposing responsibility on a notary, not only the norms of Ch. 59 of the Civil Code on liability for causing harm, but also the rules of Part 1 of Art. 17 of the Fundamentals of the legislation on the notary, which imposes on the notary the obligation to compensate for damage only if it is impossible to compensate for it in a different order, i.e., in essence, establishes the subsidiary liability of the notary additional to the responsibility of the custodian (Article 399 of the Civil Code).

If the bailor by virtue of par. 2 p. 4 art. 1171 of the Civil Code will be the executor of the will, then, in the absence of special rules, he will be liable to the heir for the loss, shortage or damage to the deposited property according to the general rules, that is, if there is fault.

Finally, in the absence of grounds for bringing to responsibility both the custodian and the bailor (notary or executor of the will), the negative consequences associated with the loss, shortage or damage to the deposited hereditary property are fully assigned to the relevant heir, who is the owner of the hereditary property from the moment of opening inheritance (clause 4, article 1152 of the Civil Code) and, as such, bears the risk of his accidental death or damage (article 211 of the Civil Code).

The protection of hereditary property continues until the inheritance is accepted by the heirs, and if it is not accepted by them, until the expiration of six months from the date of opening the inheritance. The protection of hereditary property may also be carried out after six months from the date of opening the inheritance, if the notary's office receives an application for consent to accept the inheritance from persons for whom the right to inherit arises in the event of non-acceptance of the inheritance by other heirs, and if before the expiration of the six-month period established by law for acceptance the inheritance will be less than three months old. In this case, the protection of hereditary property continues to be carried out, but not more than nine months.

If the places of opening of the inheritance and taking measures for the protection of hereditary property are different, the notary at the place of opening of the inheritance shall be notified in advance of the termination of protection of the property. He notifies the heirs and other interested parties about the termination of measures aimed at protecting the inheritance property.

5.4. Estate management. Types of hereditary property requiring management

Sometimes it becomes necessary not only to store hereditary property, but also to manage it. If the inheritance contains property that requires management (an enterprise, a share in the authorized (share) capital of a business partnership or company, securities, exclusive rights, etc.), a notary in accordance with Art. 1026 of the Civil Code, as a founder of trust management, concludes an agreement on trust management of this property.

A notary establishes a trust management at the request of one of the following persons:

1) heir(s);

2) legatee;

3) the executor of the will;

4) body of local self-government;

5) body of guardianship and guardianship;

6) other persons acting in the interests of preserving inherited property.

According to the general rules on trust management, only an individual entrepreneur or a non-profit organization can be a trustee. With regard to the contract of trust management of hereditary property, the law made a certain reservation: the circle of persons who can be appointed as trustees is, in fact, not limited. Any citizen with full legal capacity, as well as any organization, both commercial and non-commercial, can be a trustee. The only restriction on the candidacy of a trustee is formulated in paragraph 3 of Art. 1015 of the Civil Code, according to which a trustee cannot be a beneficiary under a trust management agreement. Thus, it is not possible to appoint an heir as a trustee.

Types of hereditary property requiring management. Objects of trust management can be:

- enterprises and other property complexes;

- individual objects related to real estate;

- securities;

- rights certified by non-documentary securities;

- exclusive rights (intellectual property) and other property.

Money cannot be an independent object of trust management.

5.5. Contract of trust management of hereditary property: parties, procedure for concluding, content, validity period

Under a property trust management agreement, one party (management founder) transfers property to the other party (trustee) for a certain period of time for trust management, and the other party undertakes to manage this property in the interests of the person indicated by the management founder (beneficiary). The beneficiaries under the contract of trust management of hereditary property are the heirs. If the notary does not have information about the heirs, then the specific beneficiary may not be named in the trust management agreement, although in the end it will be the heir.

The essential terms of the trust management agreement are defined by Art. 1016 GK. For example, the agreement must include:

1) the composition of the property transferred to trust management;

2) the name of the founder of the management, the trustee and the beneficiary (if there is information about the beneficiary);

3) the amount and form of remuneration to the manager;

4) the term of the contract.

Without specifying these conditions, the contract of trust management of property is considered not concluded.

Optional terms of the contract may be:

- any restrictions on individual property management actions (for example, prohibition of alienation of property);

- Possibility of disposal of real estate. In the contract of trust management of real estate, the right of the trustee to dispose of it, that is, to alienate it in any form, must be specifically stipulated. Otherwise, the trustee does not have the right to dispose of immovable property;

- the necessity, procedure and terms for the provision of a trustee's report on its activities;

- the ability of the trustee to instruct another person to perform on his behalf certain (or all of the actions provided for by the agreement) for property management;

- ensuring the liability of the trustee (providing a pledge by the trustee to secure compensation for losses that may be caused to the founder of the management or the beneficiary by improper performance of the contract);

- the procedure for reimbursement of expenses incurred by the trustee in the management of property;

- possibility of succession in case of death of an individual (beneficiary) or liquidation of a legal entity (beneficiary);

- an indication of to whom the property held in trust is transferred upon termination of the contract, etc.

The trust management agreement must be concluded in writing. The real estate trust management agreement must be concluded in the form provided for the real estate sale agreement. The transfer of immovable property for trust management is subject to state registration in the same manner as the transfer of ownership of this property. Failure to comply with the form of a trust management agreement or the requirement to register the transfer of real estate to trust management entails the invalidity of the agreement (Article 1017 of the Civil Code).

The trustee carries out trust management of the estate in person, except for the following cases, in which he may instruct another person to perform on behalf of the trustee the actions necessary to manage the property:

a) if he is authorized to do so by an agreement on trust management of hereditary property;

b) if he received the consent of the founder of the management, made in writing;

c) if he is forced to do so due to circumstances to ensure the interests of the beneficiary and at the same time does not have the opportunity to receive instructions from the founder of the management within a reasonable time.

The trust manager shall be liable for the actions of the trustee chosen by him as for his own.

The trustee, who failed to show due concern for the interests of the beneficiary during the trust management of the estate, compensates the latter for the lost profit during the trust management of the property and is liable for the losses incurred, unless he proves that these losses occurred as a result of force majeure or the actions of the beneficiary or the trustee of management.

In addition to the right to remuneration, which has already been mentioned, the trustee has the right to reimbursement of the necessary expenses incurred by him during the trust management of property from the income from the use of this property.

In the case when the inheritance is carried out according to the will, in which the executor of the will is appointed, the rights of the founder of trust management belong to the executor of the will.

The management of the inheritance property continues until the inheritance is accepted by the heirs, and if it is not accepted by them, until the expiration of six months from the date of opening the inheritance. The management of hereditary property may also be carried out after six months from the date of opening the inheritance, if the notary's office receives an application for consent to accept the inheritance from persons for whom the right to inherit arises in the event of non-acceptance of the inheritance by other heirs, and if before the expiration of the six-month period established by law for acceptance the inheritance will be less than three months old. In this case, the management of hereditary property continues to be carried out, but not more than nine months.

If the places of opening of the inheritance and taking measures for the protection of hereditary property are different, the notary at the place of opening of the inheritance is notified of the termination of the management of the property, who notifies the heirs and other interested persons of the termination of the management of the inheritance property.

Topic 6

6.1. Place and time of the opening of the inheritance, their significance

The opening of an inheritance is a legal fact, with which the law connects the initial moment of the appearance of an inheritance legal relationship and gives the heir the opportunity to accept the inheritance or refuse it. A necessary condition for the emergence of a hereditary legal relationship - the opening of an inheritance - is the death of a citizen or the declaration by the court of a missing citizen as dead, as well as the establishment by the court of the fact of the death of a citizen.

For inheritance law, the question of the moment of opening the inheritance is of decisive importance, since it is at this moment that the composition of the inheritance is determined and the period provided for the acceptance of the inheritance is counted.

The day of the opening of the inheritance is considered the day of the death of a citizen. The fact of the opening of the inheritance and the time of opening are confirmed by the certificate of the registry office on the death of the testator. If the registry offices for some reason refuse to issue a death certificate, then the person who was refused this has the right to resolve this issue in court, declaring the requirement to establish the fact of death of the person at a certain time and under certain circumstances. If the court recognizes the date of death of a citizen as the day of his alleged death, this date is recorded in the death certificate, which is issued on the basis of a court decision. In addition, the fact of the opening of the inheritance and the time of its opening can be confirmed by a notice or other document about the death of a citizen during hostilities, issued by the command of a military unit, hospital, military commissariat or other body of the Ministry of Defense.

Of great importance in the emergence and implementation of inheritance legal relations is the concept of the place of opening of the inheritance, since it is at the place of opening of the inheritance that the heirs must submit an application to the notary's office to accept the inheritance or refuse it.

The law clearly defines that the last permanent place of residence of the testator is recognized as the place of opening of the inheritance, and if it is unknown, the location of the property or its main part. The last place of residence is the place where the citizen permanently or predominantly resided. The place of residence of minors under 14 years of age, or citizens under guardianship, is the place of residence of their legal representatives - parents, adoptive parents or guardians.

If the last place of residence of the testator who owns property on the territory of the Russian Federation is unknown or is located outside its borders, the place of opening of the inheritance in the Russian Federation is the location of such property. If such property is located in different places, then the place of opening of the inheritance is the location of the immovable property included in it or its most valuable part. The value of property is determined based on its market value in the territory where it is located.

A document confirming the place of opening of the inheritance may be a certificate from the housing maintenance organization, local administration or a certificate from the place of work of the deceased about the location of the inheritance property. In the absence of the above documents, the place of opening of the inheritance may be confirmed by a court decision on its establishment that has entered into legal force.

The place of opening of the inheritance plays an important role for the realization of the rights of citizens to inheritance and for the registration of the transfer of property by inheritance. Thus, the conditions for acquiring hereditary property differ according to the legislation of a particular country for certain inheritance relations. The place of opening of the inheritance determines the place of notarial registration of the inheritance rights of the heirs in the absence of a dispute between them, as well as the application of measures to protect the inheritance itself. It is at this place that the circle of persons called for inheritance is established, and actions are taken to formalize inheritance rights.

At the place of opening of the inheritance, the notary accepts an application for acceptance of the inheritance or for renunciation of it, claims from the creditors of the testator and measures for the protection of the inheritance property. Here is the increment of hereditary shares. At the place of opening of the inheritance, creditors have the right to file claims with a notary's office or a lawsuit in court, and the court, in the manner of special proceedings, considers the application of the interested person to establish the fact of the accepted inheritance and the place of opening of the inheritance.

The fact of acceptance of an inheritance may be considered in the manner of special proceedings if a notary or an official performing a notarial act refuses to issue a certificate of the right to an inheritance to the applicant due to the absence or insufficiency of the relevant documents necessary to confirm in a notarial procedure the fact of taking possession of the inheritance property . If the appropriate documents are submitted, but the issuance of a certificate of the right to inheritance is refused, the interested person has the right to apply to the court not with an application to establish the fact of acceptance of the inheritance, but with an application for refusal to perform a notarial act.

It should be noted that the place of opening of the inheritance and the fact of acceptance of the inheritance, as a rule, are established in one court decision.

6.2. The procedure for accepting an application for the right to inheritance. Deadline for issuing a certificate of inheritance

In accordance with Art. 1153 of the Civil Code, the acceptance of an inheritance is carried out by filing at the place of opening of the inheritance to a notary or authorized in accordance with the law to issue certificates of the right to inheritance to an official of the application of the heir to accept the inheritance or the application of the heir to issue a certificate of the right to inheritance.

If the heir's application is submitted to a notary by another person or sent by mail, the heir's signature on the application must be certified by a notary or an official authorized to perform notarial acts (an official of a local government or consular institution). They are equated to notarized (clause 1 of article 1153 with reference to clause Zet. 185 of the Civil Code):

- signatures of military personnel and other persons who are being treated in hospitals, sanatoriums and other military medical institutions, the authenticity of which is certified by the head of such an institution, his deputy for medical affairs, a senior or duty doctor;

- signatures of military personnel in the locations of military units, formations, institutions and military educational institutions, where there are no notary offices and other bodies performing notarial actions, as well as signatures of workers and employees, members of their families and members of the families of military personnel, the authenticity of which is certified by the commander ( chief) of this unit, formation, institution or institution;

- signatures of persons in places of deprivation of liberty, the authenticity of which is certified by the head of the corresponding place of deprivation of liberty;

- signatures of adult capable citizens located in social protection institutions, the authenticity of which is certified by the administration of this institution or the head (his deputy) of the relevant social protection authority.

In the case of a personal appearance of the heir to the notary, notarial certification of the authenticity of his signature is not required. In this case, the notary establishes the identity of the heir, and himself verifies the authenticity of his signature, about which he makes a note on the application indicating the name of the identity document and the details of this document.

It is also not required to notarize the authenticity of the heir's signature on the application for acceptance of the inheritance, if the application for acceptance of the inheritance was already submitted to the notary and the signature on it was notarized, and subsequently the same heir filed another application for another inheritance property.

For minor children under the age of 14, an application for acceptance of the inheritance is submitted by their parents, adoptive parents or guardians; for citizens who have been declared legally incompetent by their guardians.

Minors between the ages of 14 and 18 act on their own when applying for acceptance of inheritance, but with the consent of their parents, adoptive parents or guardians. Persons limited by the court in their legal capacity due to the abuse of alcohol or drugs, apply for acceptance of the inheritance with the consent of the trustees.

The powers of the legal representatives of the heirs must be verified by a notary, about which a corresponding mark is made (as a rule, on the application for acceptance of the inheritance). Permission from the guardianship and guardianship authorities to accept the inheritance is not required.

An application for acceptance of an inheritance may be submitted by proxy by a representative of the heir, if the power of attorney specifically provides for the authority to accept it.

All applications received by the notary for acceptance of the inheritance are registered in the register of inheritance cases, on their basis the notary starts an inheritance case, which is registered in the alphabetical book of inheritance cases.

If the notary within six months from the date of opening of the inheritance received an application of the heir, the signature on which was not notarized, it is also registered in the book of registration of inheritance cases and an inheritance file is also opened with registration in the alphabetical book of registration of inheritance cases. In this case, the heir is not considered to have missed the deadline for accepting the inheritance, but a certificate of the right to inheritance cannot be issued to him on such an application. The heir is recommended to fill out the application properly or personally appear before the notary.

The application for acceptance of an inheritance may not indicate the composition of the inheritance property or not all of the inheritance property is indicated. In this case, the deadline for accepting the inheritance by the heir is also not considered to be missed, however, these data in the application are not enough to obtain a certificate of the right to inheritance.

A certificate of the right to inheritance is issued on the basis of an application in which the inheritance property is specified. At the same time, if the application does not indicate, for example, the valuation of hereditary property, but there is information about it in the materials of the inheritance case, the absence of an indication of the valuation in the application is of no fundamental importance. It is unacceptable for a notary to refuse to accept an application for acceptance of an inheritance due to the fact that the heir has not confirmed family relations with the testator, the place of opening of the inheritance, the composition of the inheritance property, etc. All missing documents can be submitted by the heir immediately before issuing a certificate of right to inheritance.

If an application for acceptance of an inheritance is received by a notary after the expiration of a six-month period from the date of opening of the inheritance, but is submitted by the heir or his representative to the post office in a timely manner, the heir is considered to have accepted the inheritance within the period established by law. To prove this, an envelope with a stamp of the postal organization or a receipt for sending a letter (valuable or registered) should be attached to the inheritance case. This practice is based on the norm of paragraph 2 of Art. 194 GK.

In an application for acceptance of an inheritance by law, all heirs of the order called for inheritance must be listed, and in an application for acceptance of an inheritance under a will - all heirs who have the right to a mandatory share in the inheritance, indicating their place of residence. The notary is obliged to notify those heirs whose place of residence is known to him about the opening of the inheritance. At the same time, the expiration of the statutory period for accepting the inheritance does not relieve the notary from the obligation to notify the heirs of the opened inheritance, taking into account the fact that they can prove the fact of their timely acceptance of the inheritance or restore the missed deadline for accepting the inheritance.

Deliberate concealment by any of the heirs of the fact of the existence of the remaining heirs or any of them may result in the recognition of the issued certificate of the right to inheritance as invalid, however, the responsibility in this case lies not with the notary, but with the heir himself, who did not report the presence of other existing heirs . Moreover, such actions of the heir may serve as a basis for recognizing this heir as unworthy in accordance with the norm of paragraph 1 of Art. 1117 GK.

Several heirs, whose grounds for inheritance are the same, may submit to the notary one application signed by all of them for the acceptance of the inheritance (for example, heirs by law, as well as heirs by will, if they are bequeathed the same property). Testamentary heirs who have bequeathed different property shall submit separate applications for acceptance of the inheritance. Separate applications for the issuance of a certificate of the right to inheritance are also submitted by the heir under the will and the heir who has the right to a mandatory share in the inheritance.

In accordance with Art. 1163 of the Civil Code, a certificate of the right to inheritance is issued to heirs at any time after six months from the date of opening of the inheritance, with the exception of some cases. When inheriting both by law and by will, a certificate of the right to inheritance may be issued before the expiration of six months from the date of opening of the inheritance, if there is reliable evidence that, in addition to the persons who applied for the issuance of a certificate, other heirs who have the right to inheritance or its corresponding part is not available.

The issuance of a certificate of the right to inheritance is suspended by a court decision, as well as in the presence of a conceived but not yet born heir.

6.3. Certificate of inheritance. Additional evidence

Forms of certificates of the right to inheritance are approved by the Ministry of Justice of Russia. The certificate of inheritance must contain the following information:

1) coat of arms of the Russian Federation;

2) place and date of issue;

3) the surname, initials of the notary and the name of the notarial district in which he was appointed to the position;

4) last name, first name, patronymic and date of death of the testator;

5) grounds for inheritance;

6) last name, first name, patronymic, date of birth, place of residence of the heirs, as well as details of documents proving their identity;

7) kinship or other relationship of heirs to the testator;

8) shares of heirs in the inheritance;

9) the name of the estate, its characteristics, location and valuation;

10) the number of the inheritance file;

11) the number under which the certificate is registered in the register of registration of notarial acts;

12) the amount of collected state duty (notarial fee);

13) seal and signature of a notary.

When issuing a certificate of the right to inheritance, the notary performs the following actions in relation to the inheritance property.

1. The notary checks: a) the ownership of this property by the right of ownership or other real right; b) the presence of co-owners; c) the presence of an encumbrance, prohibition of alienation or seizure of this property. As a rule, the notary also checks documents on the valuation of property that is hereditary.

2. The documents stipulated by the Federal Law of July 21, 1997 No. 122-FZ "On State Registration of Rights to Real Estate and Transactions with It" are checked.

3. A document is required confirming the payment of the tax provided for by the Tax Code, or on exemption from the payment of such tax.

If there are any encumbrances in relation to the estate, the notary shall give explanations to the heirs about the legal relations arising in this connection. If a prohibition of alienation has been imposed on immovable property in connection with obtaining a loan, the notary shall notify the institution that issued the loan that a certificate of the right to inheritance has been issued to the heirs of the borrower.

When issuing a certificate of inheritance by will, the notary checks whether the will has been cancelled. If the will is certified by a notary who will issue a certificate of the right to inheritance, then a note on the verification of these data is made on the copy of the will attached to the inheritance file.

When issuing a certificate of the right to inheritance under a will, which implies an indication of kinship or other relations of the heirs with the testator, the notary checks the documents confirming these relations.

Heirs who have received a certificate of the right to inherit a certain part of the inherited property are subsequently issued certificates of the right to inherit other parts of the inherited property that are not listed in the originally issued certificate.

If the property contains immovable or other property, the right to which or this property itself is subject to registration (special accounting), in the text of the certificate of the right to inheritance, the notary makes an appropriate entry about the need to register the right or property with authorized state bodies, which he explains to the heirs .

A certificate of the right to inheritance can be issued (and, at the request of the heirs, must be issued) only for a part of the inheritance property (for example, for a deposit). For the rest of the property, an additional certificate may subsequently be issued. If, after receiving a certificate of the right to inheritance, the testator finds any other property, an additional certificate of the right to inheritance is issued for him.

6.4. The procedure for issuing a certificate of the right to inheritance to the state

As we indicated earlier, the subject of the right to inherit escheated property is exclusively the Russian Federation. According to paragraph 2 of Art. 1151 of the Civil Code, escheated property passes by way of inheritance under the law into the ownership of the Russian Federation. The certificate of the right to inheritance is a document confirming the transfer of the inheritance to the successor, but not the basis for the transfer of inheritance property to the heir. Obtaining a certificate is not mandatory, as it is issued at the request of the heir. The same procedure applies when issuing a certificate of the right to inherit escheated property by the state (Article 1162 of the Civil Code).

The fundamentals of the legislation of the Russian Federation on notaries do not provide for the obligation of the state to obtain a certificate of the right to an escheat inheritance. The rules of the Instructions mentioned earlier "On the procedure for accounting, valuation and sale of confiscated, ownerless property, property transferred by right of inheritance to the state, and treasures" (for more details, see Section 3.7) proceed from the recognition of a certificate of the right to inheritance as a right-confirming, but not a right-establishing document. Paragraph 5 of the said Instruction establishes that the document confirming the state's right to inheritance is a certificate issued by a notary authority to the tax authority, however, the Instruction does not provide for the obligation of the state authority to obtain an appropriate certificate.

The main problem of inheritance of escheated property is the absence of a law defining the procedure for its inheritance, accounting and transfer to the ownership of subjects of the Russian Federation or municipalities.

6.5. State fee paid for the issuance of a certificate of inheritance. Taxation of property passing to citizens by inheritance

In accordance with the rules of art. 333.24 of the Tax Code, the amount of the state fee for notarial acts, which include the issuance of a certificate of the right to inheritance, is strictly differentiated depending on the subject of inheritance and depends on the degree of kinship of the heirs. So, in accordance with sub. 22 paragraph 1 of this article for the issuance of a certificate of the right to inheritance by law and by will, the state fee is paid in the following amounts:

- children, including adopted children, spouse, parents, full brothers and sisters of the testator - 0,3% of the value of the inherited property, but not more than 100 thousand rubles;

- to other heirs - 0,6% of the value of the inherited property, but not more than 1 million rubles.

For the issuance of a certificate of the right to inheritance, issued on the basis of court decisions on the recognition of a previously issued certificate of the right to inheritance as invalid, the state fee is paid in the same amount and in the same manner. At the same time, the amount of the state fee paid for a previously issued certificate is refundable. At the request of the payer, the state fee paid for a previously issued certificate is subject to offset against the state fee payable for the issuance of a new certificate within one year from the date of entry into force. relevant court decision.

An essential issue related to the issuance of a certificate of the right to inheritance is the question of the assessment of hereditary property. When preparing the draft chapter of the Tax Code on the state duty, it was proposed to determine the value of property strictly at market prices. However, this proposal made it impossible to pay the state fee for a large circle of heirs. Currently, both the inventory value of real estate and its commercial valuation can be taken into account.

With regard to the taxation of hereditary property, in accordance with the rules sub. 18 art. 217 of the Tax Code, income in cash and in kind received from individuals by way of inheritance (with the exception of remuneration paid to heirs (legal successors) of authors of works of science, literature, art, as well as discoveries, inventions and industrial designs) are not subject to taxation.

Topic 7. CONFLICT ISSUES RELATED TO INHERITANCE

7.1. The procedure and terms for the division of hereditary property between heirs

Acceptance of the inheritance by several heirs is possible. This means that the inheritance may include property that comes from the date of opening of the inheritance in the common shared ownership of the heirs:

- when inheriting by law - if it passes simultaneously to two or more heirs;

- when inheriting by will - if it is bequeathed to two or more heirs without specifying the specific property inherited by each of them.

The provisions on common shared ownership shall apply to the common property of heirs in the estate, taking into account the rules on inheritance.

Common property is the possession, use, disposal of one thing by several subjects. Common property is joint and shared. In case of common joint ownership, the shares of each owner in the ownership right are not determined. Relations of common joint property arise only in the cases specified in the law (at present, the grounds for its occurrence are marriage or the formation of a peasant (farm) economy). In all other cases, common ownership is shared, which implies an indication of the size of the shares of each owner.

The property passes into the common property of the heirs regardless of whether the inheritance was carried out by law or by will. The main condition is the presence of several (two or more) heirs. When inheriting by will, an additional condition is also necessary - the absence in the will of indications of specific property passing to specific heirs. For example, the will says that all property goes to the wife and sister, and the country house - to the sons of the testator. In this case, the sons will become the common share owners of the country house, and the wife and sister - of the rest of the property.

The property comes into common shared ownership from the date of opening of the inheritance.

When dividing the inheritance property, the rules on inheritance shall apply for three years from the date of opening of the inheritance. The specified period for the implementation of the pre-emptive right begins to be calculated not from the moment of acceptance of the inheritance, but precisely from the moment of its opening. Therefore, for example, for the heir of the fourth stage, who accepted the inheritance due to the non-acceptance by the heirs of the first three stages, the specified period is reduced by more than a year. After the expiration of three years, the pre-emptive right to inherit property from one of the heirs ceases.

A three-year period for exercising the pre-emptive right to receive certain property is restrictive. This means that after its expiration, the specified right of the heir (even if he accepted the inheritance quite recently) ceases. The Civil Code does not provide for any grounds for restoring this period; the provisions on the restoration of the limitation period are not applicable in this case, since we are talking about terms that are different in their legal nature.

In accordance with the rules of paragraph 1 of Art. 1165 of the Civil Code, inherited property, which is in common shared ownership of two or more heirs, may be divided by agreement between them. The rules of the Civil Code on the form of transactions and the form of contracts are applied to the agreement on the division of inheritance. Priority is given to how the rights subject to state registration are defined in the inheritance division agreement. Non-compliance of the division of the inheritance carried out by the heirs in the agreement concluded by them with the shares due to the heirs indicated in the certificate of the right to inheritance cannot lead to a refusal to state registration of their rights to real estate received as a result of the division of the inheritance. Denial of state registration of rights received by inheritance may be appealed in court. If it is not possible to reach an agreement on the inheritance property, the property is divided between the heirs in a judicial proceeding.

If, as a result of the division, one of the heirs receives more property than the amount of the share due to him, then this discrepancy is eliminated by compensation to other heirs.

It is established that the heir, who during the life of the testator was the owner of the property included in the inheritance together with the testator, has a priority right to such property during its division. The heir who used the indivisible thing that is part of the inheritance has the same right. The pre-emptive right to indivisible things and items of ordinary home furnishings and household items, as well as the procedure for obtaining compensation when dividing inheritance property, shall apply only for three years from the date of opening of the inheritance. After three years, the division of property is carried out (including the procedure for paying compensation) according to the general rules of the Civil Code applicable to property in common ownership. Thus, when applying to the court within three years after the opening of the inheritance, the heir has the opportunity to exercise his pre-emptive right in the division of hereditary property. When applying outside the specified period, he can no longer use this right.

7.2. The procedure for concluding an agreement on the division of inheritance, which includes real estate

An agreement on the division of an inheritance, which includes immovable property, including an agreement on the allocation of a share of one or more heirs from the inheritance, may be concluded by the heirs after the issuance of a certificate of the right to inheritance. Such an agreement on the division of property is concluded in writing and certified by a notary.

According to the norm of paragraph 2 of Art. 1165 of the Civil Code, state registration of the rights of heirs to real estate, in respect of which an agreement on the division of inheritance has been concluded, is carried out on the basis of an agreement on the division of inheritance and a previously issued certificate of the right to inheritance, and in the case when state registration of the rights of heirs to real estate was carried out before conclusion by them of an agreement on the division of inheritance, - on the basis of an agreement on the division of inheritance.

If any of the heirs has a pre-emptive right to inherit the enterprise (for more details, see Section 8.3), then the entry into ownership of this enterprise occurs only after this heir compensates the other heirs for their share in this inheritance, if they wish to withdraw from the possession of the inherited part of the enterprise, unless an agreement is concluded between them.

The composition of the enterprise as a property complex, among other things, includes its debts. An heir who has received an enterprise on account of his share shall be liable with his property for all debts included in the received enterprise. The person bears such responsibility in excess of his obligation for the debts of the testator within the limits of the inheritance share received by him.

The possession and use of immovable property in shared ownership is carried out by agreement of all its participants, and in case of failure to reach an agreement - in the manner established by the court.

An agreement between the heirs may provide for the transfer of the enterprise to trust management either to an outsider or to one of the heirs.

7.3. Features of the section of indivisible things that are part of the inheritance, household items and furnishings

As noted earlier, the heir, who, together with the testator, had the right of common ownership of an indivisible thing, the share in the right to which is part of the inheritance, has, when dividing the inheritance, the priority right to receive, at the expense of his hereditary share, the thing that was in common ownership over the heirs. who were not previously participants in the common property, regardless of whether they used this thing or not.

An heir who has constantly used an indivisible thing that is part of the inheritance has, when dividing the inheritance, the priority right to receive this thing on account of his inheritance share over heirs who did not use this thing and were not previously participants in common ownership of it.

If the inheritance includes a dwelling (a residential building, an apartment, etc.), the division of which is impossible in kind, when dividing the inheritance, the heirs who lived in this dwelling by the day of the opening of the inheritance and do not have another dwelling, have before other heirs, not who are the owners of the dwelling that is part of the inheritance, the pre-emptive right to receive on account of their inheritance shares of this dwelling.

In accordance with Art. 1169 of the Civil Code, the heir, who lived on the day of the opening of the inheritance together with the testator, has, when dividing the inheritance, the pre-emptive right to receive items of ordinary home furnishings and household items at the expense of his inheritance share.

The disproportion of the inherited property, the pre-emptive right to receive which the heir declares on the basis of Art. 1168 or 1169 of the Civil Code, with the hereditary share of this heir, is eliminated by the transfer by this heir to the rest of the heirs of other property from the inheritance or the provision of other compensation, including the payment of an appropriate amount of money.

Unless otherwise provided by agreement between all heirs, the exercise by any of them of the priority right is possible after the provision of appropriate compensation to other heirs.

7.4. Protection of the interests of the unborn heir, minor children, incapacitated citizens in the division of hereditary property

In accordance with Art. 1166 of the Civil Code, in the presence of a conceived but not yet born heir, the division of the inheritance can be carried out only after the birth of such an heir.

This rule is aimed at protecting the interests of a conceived but not yet born child, that is, one who is not yet a subject of civil legal relations, but can become one if he is born alive. The Civil Code strengthens the protection of the unborn child by establishing the impossibility of dividing the inheritance property before the birth of the child. Accordingly, in the described situation, the hereditary property will pass into common shared ownership, regardless of the will or even against the will of the heirs, who will become owners.

It was noted above that a child will become a subject of law if he is born alive. In this case, even if he dies a few minutes after birth, he will have time to become the owner of certain property, which can be transferred to his heirs. If the child is born dead, then the heirs have the right to divide among themselves all hereditary property. An inheritance sharing agreement concluded without taking into account a conceived but unborn child is an insignificant transaction, since this directly contradicts the norms of the Civil Code. At the same time, the fact that the heirs are aware of the presence of such a child does not matter.

In accordance with Art. 1167 of the Civil Code, if there are minors, incapacitated or partially capable citizens among the heirs, the division of the inheritance is carried out in compliance with the rules of Art. 37 GK. In order to protect the legitimate interests of these heirs, the body of guardianship and guardianship must be notified of the drawing up of an agreement on the division of the inheritance and on the consideration of the case on the division of the inheritance in court.

Attention is drawn to the fact that this article does not establish the obligatory participation of guardianship and guardianship authorities either in drawing up an agreement on the division of inheritance, or in court when considering the relevant case - it only speaks of notifying these authorities. It follows from the foregoing that leaving the notice without attention will not entail any consequences: all transactions (including the agreement on the division of the inheritance) will be valid. In addition, Art. 1167 of the Civil Code does not establish anyone's obligation to notify the body of guardianship and guardianship and liability for failure to fulfill this obligation. Of course, in the first place, the interested parties are the legal representatives of the heir, but they may not always realize the need to protect his interests, in addition, there may be no legal representatives.

7.5. Liability of heirs for the debts of the testator

The obligations of a citizen-debtor do not terminate with his death, except in cases where the fulfillment of such an obligation cannot be carried out without the personal participation of the deceased debtor. Thus, after the death of the testator, his unfulfilled obligations to creditors must be fulfilled by his successors.

Creditors have the right to present their claims to the heirs who have accepted the inheritance, either to the executor of the will, or directly to the inherited property. In case of escheat of the inheritance, the claims of creditors are subject to satisfaction on a general basis.

According to the rules of paragraph 1 of Art. 1175 of the Civil Code, the heirs are jointly and severally liable for the debts of the testator, i.e. the creditor has the right to demand performance both from all heirs jointly and from any of them separately, both in full and in part of the debt. A creditor who has not received full satisfaction from one of the heirs has the right to demand what was not received from the rest of the heirs, who remain liable until the debt is fully repaid. At the same time, repayment of the debt is possible only within the limits of the size of the inherited property. The creditor is not entitled to demand satisfaction of his claims at the expense of the property of the heirs.

In accordance with the norm of Art. 24 of the Civil Code, a citizen is liable for his obligations with all his property, with the exception of property, which, according to the law, cannot be levied. Obviously, this restriction does not apply to inheritance, since it refers to the property necessary to maintain the existence of the specified citizen, and does not apply to the property of his heirs of the same kind, i.e. creditors have the right to demand performance within the value of all property, without exclusion of the value of property, which during the lifetime of the testator is usually not foreclosed.

An heir who has received property in the manner of hereditary transmission, as well as other heirs, is a joint and several debtor with them to the creditors of the testator on a general basis.

Creditors have the right to present claims to heirs within the established limitation period (three years).

Claims of creditors are presented before the acceptance of the inheritance to the executor of the will or to the estate property. After the acceptance of the inheritance, claims to the heirs who have accepted the inheritance shall be filed regardless of the due date for the fulfillment of the corresponding claim. The right of the creditor of the testator to present a claim arises from the day of death of the specified debtor, and not from the date when the testator had to repay the debt. If a claim is made against the executor of the will or the estate, the court suspends the consideration of the case until the inheritance is accepted.

If the deadline for fulfilling the obligation came before the death of the testator, but there was a delay in fulfillment, the following should be borne in mind. Since hereditary succession entails a change of persons in the obligation, the rule of Art. 201 of the Civil Code, according to which the change of persons in the obligation does not entail a change in the limitation period and the procedure for its calculation. The demand to the executor of the will or to the estate property is presented to the court. In this case, the court is obliged to suspend the consideration of the case until the inheritance is accepted by the heirs (or, accordingly, the transfer of the hereditary property as escheat to the state).

7.6. Reimbursement of expenses caused by the death of the testator, and expenses for the protection of hereditary property

According to the rules of art. 1174 of the Civil Code, the necessary expenses caused by the dying illness of the testator, the costs of his dignified funeral, including the necessary costs of paying for the place of burial of the testator, the costs of protecting the inheritance and managing it, as well as the costs associated with the execution of the will, are reimbursed at the expense of the inheritance within its value .

Claims for reimbursement of these expenses may be presented to the heirs who have accepted the inheritance, and before the acceptance of the inheritance - to the executor of the will or to the estate property. Such expenses shall be compensated before the payment of debts to the creditors of the testator and within the limits of the value of the inherited property transferred to each of the heirs. In this case, first of all, expenses caused by the illness and funeral of the testator are reimbursed, secondly - expenses for the protection of the inheritance and management of it, and thirdly - expenses related to the execution of the will.

To pay for the costs of a decent funeral of the testator, any funds belonging to him, including in deposits or bank accounts, can be used. Banks, in whose deposits or accounts the testator's funds are located, are obliged, by order of the notary, to provide them to the person specified in the notary's order to pay the specified expenses.

The heir to whom the funds deposited or held on any other accounts of the testator in banks, including the case when they were bequeathed by testamentary disposition in a bank (Article 1128 of the Civil Code), are bequeathed, have the right at any time before the expiration of six months from on the day of the opening of the inheritance, to receive from the deposit or from the account of the testator the funds necessary for his funeral. The amount of funds issued by the bank for the funeral of the heir or the person indicated in the notary's decision cannot exceed 200 minimum wages established by law on the day of applying for these funds.

The above rules shall accordingly apply to other credit institutions that have been granted the right to attract citizens' funds to deposits or to other accounts.

Topic 8. INHERITANCE OF CERTAIN TYPES OF PROPERTY

8.1. General provisions for the inheritance of certain types of property

In ch. 65 of the third part of the Civil Code determines the procedure for inheritance of certain types of property and property rights:

1) the value of the share in business partnerships and companies, production and consumer cooperatives;

2) inheritance of the enterprise;

3) the value of the property of a member of the peasant farm;

4) the value of things of restricted circulation;

5) the cost of land plots.

In accordance with the rules of art. 66 of the Civil Code, business partnerships and companies are recognized as commercial organizations with an authorized (share) capital divided into shares (contributions) of founders (participants). Property created at the expense of contributions of founders (participants), as well as produced and acquired by a business partnership or company in the course of its activity, belongs to it by the right of ownership.

In the cases provided for by the Civil Code, a business company may be created by one person who becomes its sole participant.

Business partnerships can be created in the form of a general partnership and a limited partnership (limited partnership).

Business companies may be created in the form of a joint-stock company, a limited liability company or an additional liability company.

Participants in general partnerships and general partners in limited partnerships may be individual entrepreneurs and (or) commercial organizations.

Participants of economic societies and investors in partnerships on faith can be citizens and legal entities.

State bodies and local self-government bodies are not entitled to act as participants of economic companies and investors in partnerships on faith, unless otherwise provided by law.

Institutions may be participants of economic companies and investors in partnerships with the permission of the owner, unless otherwise provided by law.

The law may prohibit or restrict the participation of certain categories of citizens in business partnerships and companies, with the exception of open joint-stock companies.

Business partnerships and companies may be founders (participants) of other business partnerships and companies, except as otherwise provided by law. A contribution to the property of a business partnership or company may be money, securities, other things or property rights or other rights having a monetary value.

A monetary valuation of the contribution of a participant in a business entity is made by agreement between the founders (participants) of the company and, in cases provided for by law, subject to independent expert review.

Business partnerships, as well as limited and additional liability companies are not entitled to issue shares.

According to the rules of art. 1176 of the Civil Code, the inheritance of a participant in a general partnership or a general partner in a limited partnership, a participant in a limited or additional liability company, a member of a production cooperative includes a share (share) of this participant (member) in the share (authorized) capital (property) of the relevant partnership, society or cooperative.

If, in accordance with this Code, other laws or constituent documents of a business partnership or company or production cooperative, the consent of the other participants in the partnership or company or members of the cooperative is required for the heir to join the business partnership or production cooperative, or for the transfer to the heir of a share in the charter capital of the business company, and such consent is denied to the heir, he has the right to receive from the business partnership or company or production cooperative the actual value of the inherited share (share) or the corresponding part of the property in the manner prescribed in relation to the specified case by the rules of this Code, other laws or constituent documents of the relevant legal entity.

The estate of the contributor of a limited partnership includes his share in the joint capital of this partnership. The heir to whom this share has passed becomes a contributor to the limited partnership.

The composition of the inheritance of a member of a joint-stock company includes the shares owned by him. The heirs, to whom these shares have passed, become participants in the joint-stock company.

8.2. Inheritance of rights related to participation in business partnerships, companies, production cooperatives

The composition of inheritance rights depends on the organizational and legal form of a particular type of business partnerships and companies.

General partnership and limited partnership. According to the norm of paragraph 1 of Art. 69 of the Civil Code, a partnership is recognized as a general partnership, the participants of which (general partners), in accordance with the agreement concluded between them, are engaged in entrepreneurial activities on behalf of the partnership and are liable for its obligations with their property.

In accordance with Art. 76 of the Civil Code in cases of withdrawal or death of any of the participants in a full partnership, recognition of one of them as missing, incapacitated, or with limited capacity, or insolvent (bankrupt), opening in relation to one of the participants in reorganization procedures by a court decision, liquidation of a participant in the partnership of a legal entity or the creditor of one of the participants foreclosure on a part of the property corresponding to his share in the share capital, the partnership may continue its activities if this is provided for by the founding agreement of the partnership or by agreement of the remaining participants.

In the event of the death of a participant in a full partnership, his heir may enter into a full partnership only with the consent of the other participants. This situation is primarily due to the need for personal participation in managing the affairs of the partnership.

A slightly different procedure for the transfer of an investor's share in a limited partnership. The estate of the contributor of a limited partnership includes his share in the joint capital of this partnership. The specified share passes to the heir, who, after accepting the inheritance, automatically becomes a contributor to the limited partnership. The consent of general partners in a limited partnership in this case is not required. This provision applies only to the shares of limited partners (participants-contributors). The inheritance of the share of a general partner in a limited partnership is subject to the same rules as the inheritance of the share of general partners in a general partnership.

Limited Liability Company. In accordance with s. 87 of the Civil Code, a limited liability company (LLC) is a company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents; Participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the contributions they made. The participants of the company who have not fully contributed, are jointly and severally liable for its obligations within the limits of the value of the unpaid part of the contribution of each of the participants.

Shares in the authorized capital of 000 are transferred to the heirs of citizens and to the legal successors of legal entities that were members of the company, unless the constituent documents of the company provide that such a transfer is allowed only with the consent of the other participants in the company. Refusal of consent to the transfer of a share entails the obligation of the company to pay the heirs (legal successors) of the participant its actual value or to give them property in kind for such a value in the manner and on the conditions provided for by the law on limited liability companies and the constituent documents of the company.

Until the heir of the deceased participant of the LLC accepts the inheritance, the rights of the deceased participant of the company are exercised, and his duties are performed by the person specified in the will, and in the absence of such a person - by the manager appointed by the notary.

Production cooperative. AT in accordance with Art. 1 of the Federal Law of May 8, 1996 No. 41-FZ "0 production cooperatives" a production cooperative (artel) is recognized as a voluntary association of citizens on the basis of membership for joint production and other economic activities based on their personal labor and other participation and association by its members (participants) of property share contributions.

In the event of the death of a member of the cooperative, his heirs may be accepted as members of the cooperative, unless otherwise provided by the charter. If the participants of the cooperative do not wish to accept the heir as members of their cooperative due to any objective reasons, then the cooperative is obliged to pay to the heirs the value of the share of the deceased member of the cooperative, wages, bonuses and additional payments due to him.

Settlements with the heir on the payment of a share of property previously owned by his testator are carried out according to the rules established by the constituent document of the economic entity, unless, of course, they contradict the regulations relating to this industry.

Thus, the heir can exercise his inheritance rights in one of the following possible ways:

1) join a business partnership, company or production cooperative (in some cases, this requires the consent of the other participants in this commercial organization). In this case, the heir is endowed with all the rights and obligations that are inherent in the participant of this organization;

2) receive from a business partnership or society or production cooperative the actual value of the inherited share (share) or the corresponding part of the property (in the event that the necessary consent has not been received).

Joint-Stock Company. The rules for the transfer of shares of the testator - a member of a joint-stock company as part of the inheritance property also have their own specifics.

In accordance with Art. 96 of the Civil Code, a joint-stock company (JSC) is a company whose authorized capital is divided into a certain number of shares; participants of a joint-stock company (shareholders) are not liable for its obligations and bear the risk of losses associated with the activities of the company, to the extent of the value of their shares. Shareholders who have not fully paid for the shares shall be jointly and severally liable for the obligations of the joint stock company to the extent of the unpaid portion of the value of their shares. The estate of a joint-stock company participant includes the shares owned by him. The heirs, to whom these shares have passed, become participants in the joint-stock company.

Thus, unlike other types of economic entities (general partnership, limited liability company, etc.), a joint-stock company is characterized by a simple procedure for admission to participants - through a simple acquisition of shares in this company. Accordingly, if shares are included in the inheritance property, the heirs to whom these shares have passed become participants in the joint-stock company. When issuing a certificate of inheritance, a notary may accept an extract from the register of shareholders to confirm the ownership of the testator of shares.

Transfer of the right to a registered non-documentary security passes to the acquirer:

- in case of finding its certificate with the owner - at the time of transfer of this certificate to the acquirer;

- in the case of storage of certificates of bearer documentary securities and (or) registration of rights to such securities in the depository - at the time of making a credit entry on the acquirer's depo account;

- in the case of recording the rights to securities with a person carrying out depository activities - from the moment of making a credit entry on the acquirer's depo account;

- in the case of recording rights to securities in the register maintenance system - from the moment of making a credit entry on the personal account of the acquirer.

The right to a registered documentary security passes to the acquirer:

- in the case of registration of the acquirer's rights to securities in the register maintenance system - from the moment of transferring the securities certificate to him after making a credit entry on the acquirer's personal account;

- in the case of recording the acquirer's rights to securities with a person carrying out depositary activities, with the deposit of a security certificate with a depository - from the moment a credit entry is made on the acquirer's depo account.

The rights secured by an issuance security shall pass to their acquirer from the moment of transfer of rights to this security. The transfer of rights secured by a registered issue-grade security must be accompanied by a notice to the registrar or depositary or nominal holder of the securities.

8.3. Inheritance of rights associated with participation in consumer, housing and construction cooperatives

A consumer cooperative is a voluntary association of citizens and legal entities on the basis of membership in order to meet the material and other needs of the participants, carried out by combining property shares by its members (Article 116 of the Civil Code).

A housing or housing-construction cooperative is a voluntary association of citizens and (or) legal entities on the basis of membership in order to meet the needs of citizens in housing, as well as to manage residential and non-residential premises in a cooperative house (Article 110 of the LC).

The heirs of a deceased member of a consumer or housing-construction cooperative have the right to become members of the cooperative by decision of the general meeting of members (conference) in compliance with the norms on the pre-emptive right to become members of the cooperative in case of inheritance of a share (Article 131 of the LC):

- first of all, the spouse of the testator has the priority right, provided that this spouse is entitled to a part of the share;

- in the second place (i.e. if the spouse does not have a preemptive right or he refused to join the cooperative), another heir has the preemptive right, subject to two conditions: 1) if he lived together with the testator; 2) if he is entitled to a part of the share;

- thirdly, the priority right extends to an heir other than the spouse who did not live together with the testator, regardless of whether such an heir has the right to a part of the share or not;

- in the fourth place, a family member, although not an heir, but living together with the testator, can join the cooperative, but only on condition that a share contribution is made.

In accordance with paragraph 2 of Art. 1177 of the Civil Code, the procedure, methods and terms of payment to heirs who have not become members of the cooperative, the amounts due to them or the issuance of property in kind instead of them should be established by the legislation on consumer cooperatives and the constituent documents of the cooperative. At the same time, the JK excluded the listed issues from its field of vision without even proposing dispositive norms. Thus, the determination of the mechanisms for regulating the above issues is exclusively the prerogative of the cooperative itself. At the same time, the provision on the inadmissibility of unjust enrichment at the expense of heirs who are not accepted as members of the cooperative should be taken into account.

8.4. Enterprise Inheritance

The question of who is the testator of an enterprise and whether any enterprise as a property complex can be part of the hereditary mass is not only theoretical, but also of practical importance.

An analysis of the first part of the Civil Code shows that the legislator uses the category "enterprise" in two different legal senses: as a subject of civil rights and as an object of civil rights.

Legal entities acting in the organizational and legal forms of a state unitary enterprise (SUE), a municipal unitary enterprise, a federal state enterprise act as a subject of civil rights. These organizational and legal forms of legal entities are classified by the legislator as subjects of civil rights, commercial organizations pursuing profit as the main goal of their activities. Obviously, these subjects of civil rights cannot be considered in the context of inheritance as testators (they can only be citizens - individuals) or as hereditary property (legal entities are subjects, not objects of civil rights, and subjects of civil rights are not inherited).

The property complex on the basis of which the State Unitary Enterprise, federal state-owned enterprises and municipal unitary enterprises function as participants in civil circulation cannot be the subject of inheritance. The owner of the property of these legal entities is the Russian Federation, constituent entities of the Russian Federation and municipalities, which, by virtue of the legal definition of the category of inheritance (Article 1110 of the Civil Code), cannot be classified as testators (the testator, as noted earlier, can be a citizen).

In Art. 132 of the Civil Code, an enterprise is recognized as a property complex related to real estate objects used for entrepreneurial activities; this property complex includes all types of property intended for its activities, rights of claim, debts, as well as property and non-property rights to the results of intellectual activity, including the company name. In this context, the enterprise is considered as an object of civil rights.

Being an object of civil rights, an enterprise as a property complex can be the subject of civil law transactions and inheritance. From the legal definition of inheritance (Article 1112 of the Civil Code), as well as from Art. 1178 of the Civil Code ("Inheritance of an enterprise") it follows that an enterprise as a property complex may be included in the inheritance. However, the question of whether any enterprise that is a property complex can be an object of inheritance is legitimate. It seems that the property complex, on the basis of which state unitary and municipal unitary enterprises operate, as well as federal state enterprises, cannot be the subject of inheritance.

An enterprise cannot be inherited by the heirs of deceased participants, founders, shareholders as a property complex on the basis of which a business partnership, business company, production cooperative operates, since by virtue of Art. 48, 66-86 of the Civil Code, as well as by virtue of special federal laws establishing the legal status of legal entities in the organizational and legal form of limited liability companies, joint-stock companies, production cooperatives, the owners of their property are the legal entities themselves, and the participants, founders, shareholders of the above-mentioned legal entities only have liability rights in relation to these legal entities. These liability rights include the right to profit; control; obtaining a liquidation quota, etc. In this case, the rights arising from the participation of the deceased testator in a business partnership, business company, production cooperative may be inherited (in this case, “participation” means, first of all, making a contribution to the share capital, authorized capital, buying shares, contribution contribution).

The composition of the inheritance of the deceased shareholder of the joint-stock company includes securities - shares (clause 3 of article 1176 of the Civil Code), which are inherited on the grounds provided for by this Civil Code.

The object of inheritance in the event of the death of a participant in a business partnership, a limited or additional liability company, a production cooperative is not an enterprise as a property complex, but the rights associated with the participation of the testator in the formation of the share, authorized capital of the above organizational and legal forms of legal entities, making a share contribution to a production cooperative. In this case, the inheritance will include the share (share) of the deceased participant (member) in the share (authorized) capital of a business partnership, a limited or additional liability company, or a production cooperative.

In accordance with applicable law, a limited liability company may consist of one member who is an individual. The question arises: what do the heirs of the deceased sole participant of the LLC inherit in this case - the enterprise as a property complex or the rights associated with the participation of the testator? From the context of Art. 48, 87, 90, 93 parts of the first Civil Code, Art. 1176 of the third part of the Civil Code, Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies", it follows that in this case the rights of the deceased sole participant of the LLC are inherited, and not the enterprise as a property complex.

From the context of Art. 1110, 1113, 1114 of the Civil Code, it follows that only an individual can be a testator. At the same time, not any individual can be the testator of an enterprise as a property complex, but a citizen who has the legal status of an individual entrepreneur carrying out entrepreneurial activities without forming a legal entity. The property of a citizen-entrepreneur operating in the field of entrepreneurial activity without forming a legal entity is not legally separated from his personal property (accounting is not an indicator and criterion for the legal isolation of the property of a citizen-entrepreneur participating in civil circulation from his personal property). The legal non-isolation of the property of a citizen-entrepreneur, which he uses for business purposes, follows from Art. 24 of the Civil Code, which states that a citizen, including an entrepreneur, is liable for his obligations with all his property (with the exception of property established by law, which cannot be foreclosed). The composition of the personal property belonging to the testator to a citizen-entrepreneur includes the enterprise as a property complex. This conclusion is also based on Art. 1112 GK.

Thus, only an enterprise as a property complex, which is part of the personal property of a citizen-entrepreneur acting without forming a legal entity, can, in the event of his death, be part of the inherited property and be inherited in accordance with Art. 1178 of the Civil Code on the grounds provided for by Art. 1111 GK. Therefore, in Art. 1178 of the Civil Code states that the heir registered on the day of opening the inheritance as an individual entrepreneur has, when dividing the inheritance property, which also includes the enterprise as a property complex, the pre-emptive right to receive it on account of his inheritance share. In the event that none of the heirs has the specified priority right or has not used it, the enterprise that is part of the inheritance is not subject to division and enters the common shared ownership of the heirs in accordance with the inheritance shares due to them, unless otherwise provided by the agreement of the heirs who accepted inheritance, which includes the enterprise (paragraph 2 of article 1178 of the Civil Code).

8.5. Inheritance of property of a member of a peasant (farm) economy, terms for payment of his share to the heir

The special procedure for the inheritance of property of a member of a peasant (farm) economy, established in Art. 1179 of the Civil Code, is associated primarily with the special status of the peasant economy itself and the desire of the legislator to preserve the integrity of this entity as an economic unit. In accordance with the named article, inheritance after the death of any member of a peasant (farm) economy is carried out on a general basis in compliance with the rules of Art. 253-255 and 257-259 of the Civil Code. Moreover, according to paragraph 2 of this article, if the heir of the deceased is not himself a member of this farm, he is free to either receive compensation commensurate with the share he inherits in the property, or insist on accepting him as a member of the peasant farm. In the latter case, the said compensation shall not be paid to him. However, the freedom of expression of the will of such an heir is limited by law in the sense that the heir does not have the right to demand the allocation of his share or the division of the property of the peasant economy.

If, after the death of a member of a peasant (farm) economy, this economy is terminated, including due to the fact that the testator was its only member, and there are no persons among his heirs who wish to continue running the peasant (farm) economy, the property of this economy subject to division between heirs according to the rules of Art. 258 and 1182 of the Civil Code.

The law, however, does not contain an answer to the question of what exactly a citizen inherits if he is already a member of a given peasant (farm) economy. There is no direct indication in the legislation of how the members of the peasant (farm) economy should act if, on the one hand, they have no desire to accept a new member into their team, and on the other, an heir who has the right to inherit by will , expresses his will to become a member of the peasant (farm) economy. In any case, the law does not restrict the freedom of will of the members of the peasant (farm) economy in this situation and does not provide for the obligation to accept an heir, as is stipulated in the case of the heirs of members of consumer cooperatives.

To resolve all the issues posed above, it is essential that the current civil legislation does not regulate with sufficient clarity all issues related to the disposal of the property of a peasant (farm) economy. Thus, according to the Civil Code, the legal regime of the property of a peasant (farm) economy is subject to the norms on common joint property, unless otherwise provided by law or an agreement between its members (clause 1, article 257 of the Civil Code). The ability to own property on the basis of the right of common joint or (if there is an agreement) common shared ownership is also provided for in paragraph 3 of Art. 6 of the Federal Law of June 11, 2003 No. 74-FZ "On Peasant (Farm) Economy". At the same time, in accordance with paragraph 2 of Art. 244 of the Civil Code, common joint ownership does not imply the determination of the share of each of the owners in the ownership right.

Thus, the current norms of transition in the order of inheritance of certain types of property and property rights regulate far from all controversial issues that arise in the process of inheritance of the said property and, accordingly, the will of the heirs and the testator. At the same time, a significant part of the problems of inheritance, for example, property of peasant (farmer) households, is associated not so much with gaps in the legal regulation of inheritance relations, but with the imperfection of the current legislation as a whole, in particular, with the lack of clarity in determining the legal status of a peasant (farmer) economy and legal the regime of his property, etc.

At the same time, for the correct application of the norms of Ch. 65 of the Civil Code, it should first of all be borne in mind that the features of the inheritance of certain types of property and property rights mentioned in them are valid only if the issues related to them are not resolved or, in principle, cannot be resolved through the will of the testator expressed in the will . So, for example, the testator cannot decide in the will the issue of admitting the heir to the membership of the peasant (farm) economy, to whom his share is transferred. The law solves this problem for the testator. However, if we are talking about the inheritance of an enterprise, the testator is free to appoint a person who is not an entrepreneur as his successor, and in this case, the norms of the law on the pre-emptive right of inheritance of citizens with the status of an individual entrepreneur should not be taken into account.

8.6. Inheritance of limited transferable things

All objects of civil rights, depending on how they can be involved in civil circulation, are divided into three groups:

1) things in free circulation;

2) things, the circulation of which is limited;

3) things that are completely withdrawn from civil circulation.

The negotiability of objects of civil rights means the permissibility of transactions and other actions aimed at their transfer within the framework of civil legal relations. The law does not prohibit the inheritance of things with limited negotiability. In accordance with the rules of Art. 1180 of the Civil Code, limitedly negotiable items, in particular, include:

- weapon;

- potent and toxic substances;

- narcotic and psychotropic drugs.

This list, however, is not exhaustive. Restrictions are also set on the circulation of precious metals and precious stones.

The limitation of transferability lies in the fact that individual objects can belong only to certain participants in civil circulation, or their acquisition and (or) alienation is allowed only on the basis of special permits. The types of such objects are determined in the manner prescribed by law. This means that the law should provide for the initial criteria for classifying objects as objects of restricted circulation and indicate the state bodies authorized to determine specific types of such objects.

So, weapons, potent and poisonous substances, narcotic and psychotropic drugs and other limited transferable things that belonged to the testator may be part of the inheritance. This means that such things can be inherited on a common basis. The acceptance of an inheritance, which includes such things, does not require special permission (paragraph 1 of article 1180 of the Civil Code).

1. Donation and inheritance of civilian weapons registered with the internal affairs bodies are carried out in the manner determined by the legislation of the Russian Federation, if the heir or the person in whose favor the gift is made has a license to acquire civilian weapons.

2. Narcotic drugs are substances of synthetic or natural origin, preparations, plants included in the List of narcotic drugs, psychotropic substances and their precursors subject to control in the Russian Federation, in accordance with the legislation of the Russian Federation, international treaties of the Russian Federation, including the Single Convention 1961 on narcotic drugs.

3. Psychotropic substances are substances of synthetic or natural origin, preparations, natural materials included in the List of narcotic drugs, psychotropic substances and their precursors subject to control in the Russian Federation, in accordance with the legislation of the Russian Federation, international treaties of the Russian Federation, including the Convention 1971 on psychotropic substances.

The notary, having accepted the application for the issuance of a certificate of the right to inheritance, must explain to the heir that he can use the limited transferable things only after receiving a special permit (license) for these things. The procedure for obtaining such permission is established by law. Prior to obtaining such permission, measures must be taken to protect the limited transferable things included in the inheritance.

Measures for the protection of limited transferable things included in the inheritance until the heir obtains a special permit for these things are carried out in compliance with the procedure established by law for the relevant property (clause 2 of article 1180 of the Civil Code).

If the notary becomes aware that the inheritance includes a weapon, he notifies the internal affairs authorities about this. In particular, in the event of the death of the owner of a civilian weapon, before the issue of inheritance of property is resolved and a license for the acquisition of civilian weapons is obtained, the said weapon is immediately seized for safekeeping by the internal affairs bodies that registered it. Combat and service weapons are subject to seizure.

Currency valuables, precious metals and stones, articles made of them and securities not requiring management shall be transferred to the bank for storage under a storage agreement. The adoption of such measures is primarily associated with the need to reduce the danger posed by the above things, if they are freely in civil circulation.

Measures for the protection of things with limited circulation are carried out by specially authorized bodies (internal affairs bodies, sanitary epidemiological supervision bodies, etc.).

The legislator does not establish special requirements for the inclusion of weapons, potent and poisonous substances, narcotic and psychotropic drugs and other things with restricted circulation in the composition of the inheritance property belonging to the testator. Restriction of the transferability of a thing does not affect the possibility of its inclusion in the estate and inheritance. Such things can be inherited on the general grounds established by law: no special permission is required to accept an inheritance that includes such things. Thus, this category of things is equalized with things that are freely in circulation, but this is where their equalization stops. Obtaining a special permit by the heir is necessary for him to ensure that the property inherited by him remains his by right of ownership.

The issuance of a special permit to an heir may be refused. According to the rules of paragraph 2 of Art. 1180 of the Civil Code, if the heir refuses to issue the said permit, his ownership of such property is subject to termination, and the proceeds from the sale of property are transferred to the heir minus the costs of its sale.

Refusal to issue a permit must always be motivated, the decision to refuse is made only in cases specified in the law. The refusal of the relevant authorities to issue such permission to the heir may be appealed in court.

If, on the grounds permitted by law, a person owns property that by virtue of law cannot belong to him, this property must be alienated by the owner within a year from the moment the right of ownership to the property arises, unless a different period is established by law. In cases where the property is not alienated by the owner within the time period specified in the law, such property, taking into account its nature and purpose, by a court decision made at the request of a state body or local government body, is subject to forced sale with the transfer of the proceeds to the former owner or transfer into state or municipal ownership with compensation to the former owner for the value of the property determined by the court. In this case, the costs of alienation of property are deducted.

8.7. Land inheritance. Features of the division of land plots transferred to citizens by inheritance

Regulation of issues related to the inheritance of land plots is carried out taking into account the provisions of the Land Code.

A land plot is defined as a part of the earth's surface (including the soil layer), the boundaries of which are described and certified in the prescribed manner. Land may be divisible or indivisible. Divisible is a land plot that can be divided into parts, each of which, after the division, forms an independent land plot, the permitted use of which can be carried out without transferring it to another category of land, except for cases established by federal laws.

Inheritance of land in accordance with the Civil Code is possible if it was privately owned by the testator or belonged to him on the basis of the right of lifetime inheritable possession. Possession of a land plot on other grounds (perpetual, permanent, limited use, servitude, etc.) does not allow it to be inherited.

The property of citizens and legal entities (private property) is land acquired by citizens and legal entities on the grounds provided for by the legislation of the Russian Federation. A citizen who has the right of lifetime inheritable possession (owner of a land plot) has the rights of possession and use of a land plot that are inherited.

The land plot owned by the testator on the right of ownership or the right of lifetime inheritable possession of the land plot are included in the inheritance and are inherited on the general basis established by the Civil Code. The acceptance of an inheritance, which includes the said property, does not require special permission (paragraph 1 of article 1181 of the Civil Code).

When inheriting a land plot or the right of lifetime inheritable possession of a land plot, the surface (soil) layer, water bodies, plants located on it, located within the boundaries of this land plot, also pass by inheritance, unless otherwise provided by law (paragraph 2 of article 1181 of the Civil Code).

Isolated water bodies (closed water bodies) are small and stagnant artificial water bodies that do not have a hydraulic connection with other surface water bodies. The maximum sizes of isolated water bodies are determined by the land legislation of the Russian Federation.

The content of the ownership right to the forest fund and the ownership right to forests that are not included in the forest fund is determined by the LC, civil legislation and land legislation of the Russian Federation.

The forest fund and the forests located on the defense lands are in federal ownership. In accordance with the federal law, it is allowed to transfer part of the forest fund to the ownership of the constituent entities of the Russian Federation. Forms of ownership of forests located on the lands of urban settlements are established by federal law. Citizens by right of ownership may own exclusively trees and shrubs growing on a land plot, unless otherwise established by federal law.

The basis for state registration of the existence, occurrence, termination, transfer, restriction of rights to a land plot is a certificate of the right to inheritance. The certificate of the right to inheritance issued to citizens indicates the boundaries of the land plot, the real estate objects located on it, the category and purpose of the land plot and other information that was indicated in the document confirming the testator's ownership of the land.

The Civil Code provides for the procedure for dividing a land plot, which takes into account the size of the land plot, and the possibility of dividing the land plot, taking into account its minimum size. In accordance with the rules of paragraph 1 of Art. 1182 of the Civil Code, the division of a land plot between heirs is directly related to the intended purpose of the land and the minimum size of the land plot established for plots of the corresponding designated purpose.

The size of the shares of heirs must not be less than the minimum size of the land plot established for the respective purpose. Otherwise, the land plot is not subject to division.

The division of lands according to their intended purpose into categories is one of the fundamental principles of land law, according to which the legal regime of lands is determined on the basis of their belonging to one category or another and the permitted use in accordance with the zoning of territories and legal requirements. Its essence is as follows. Owners of land plots and persons who are not owners of land plots are obliged to use land plots in accordance with their intended purpose and belonging to a particular category of land and permitted use in ways that should not harm the environment, including land as a natural object . Thus, the division of the land plot should not affect its intended purpose. For example, separate parts of a divided land plot intended for agriculture should not be used in the future for the construction of energy, transport, etc.

The procedure for determining the designated purpose of lands and their legal regime is established by federal legislation and the legislation of the constituent entities of the Russian Federation. The assignment of lands to categories, their transfer from one category to another are carried out in relation to:

- federally owned lands - by the Government of the Russian Federation;

- lands owned by the constituent entities of the Russian Federation, and agricultural lands owned by municipalities - by the executive authorities of the constituent entities of the Russian Federation;

- lands owned by municipalities, with the exception of agricultural lands, - by local self-government bodies.

With regard to privately owned lands, the specified procedure is determined: a) for agricultural land - by the executive authorities of the constituent entities of the Russian Federation; b) for lands of other purpose - by local governments.

The procedure for transferring land from one category to another is established by federal laws.

In accordance with the rules of par. 1 p. 2 art. 1182 of the Civil Code, if it is impossible to divide the land plot, it passes to the heir, who has the priority right to receive this land plot on account of his hereditary share. An heir who has received the entire land plot on account of his hereditary share is obliged to pay compensation to the remaining heirs. The amount of monetary compensation is determined by the agreement of the parties, and in the absence of an agreement between them - by a court decision. When determining the amount of compensation, either the normative or the market price of the land can be taken into account.

In the event that none of the heirs has a pre-emptive right to receive a land plot or has not used this right, the possession, use and disposal of the land plot are carried out by the heirs on the terms of common shared ownership (paragraph 2, clause 2, article 1182 of the Civil Code).

The owner of a land share, without the consent of other participants in shared ownership, has the right to:

1) to transfer the land share by inheritance;

2) use the land share (with the allocation of a land plot in kind) for running a peasant (farm) and personal subsidiary plot;

3) sell the land share;

4) donate a land share;

5) to exchange a land share for a property share or a land share in another farm;

6) transfer a land share (with allocation of a land plot in kind) for rent to peasant (farmer) households, agricultural organizations, citizens for conducting personal subsidiary plots;

7) to transfer the land share on the terms of the contract of rent and life maintenance;

8) contribute a land share or the right to use this share to the authorized capital or share fund of an agricultural organization.

The disposal of property in joint ownership is carried out by the consent of all participants, which is assumed regardless of which of the participants makes a transaction on the disposal of property.

There are cases when citizens erect so-called unauthorized buildings on their land, that is, they build houses or other structures without the permission of the authorized body. A citizen who has built a residential house (cottage) or a part of a house (cottage) without an established permit or without a properly approved project, or with significant deviations from the project or with gross violations of the basic building codes and rules, does not have the right to sell this house, donate it, rent it out. Thus, an unauthorized building does not become an object of personal property rights and, therefore, cannot be an object of inheritance. Unauthorized sheds, garages, greenhouses, bathhouses, etc., cannot be inherited in the same way.

8.8. Inheritance of unpaid amounts provided to a citizen as a means of subsistence

According to the rules of paragraph 1 of Art. 1183 of the Civil Code, the right to receive wages and equivalent payments, pensions, scholarships, social insurance benefits, compensation for harm caused to life or health, alimony and other monetary the amounts provided to a citizen as a means of subsistence belong to the members of his family who lived together with the deceased, as well as to his disabled dependents, regardless of whether they lived together with the deceased or did not live.

The legislator does not establish an exhaustive list of payments provided to a citizen as a means of subsistence.

Wage is understood as remuneration for work, depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments.

A pension is a monthly state cash payment, the right to receive which is determined in accordance with the conditions and norms established by law, and which is provided to citizens in order to compensate them for earnings (income) lost due to the termination of public service upon reaching the length of service established by law upon entering the retirement pension for old age (disability); or in order to compensate for harm caused to the health of citizens during military service, as a result of radiation or man-made disasters, in the event of disability or loss of a breadwinner, upon reaching the age established by law; or disabled citizens in order to provide them with a means of subsistence.

A scholarship is a cash payment awarded to students, graduate students and doctoral students studying full-time in educational institutions and scientific organizations.

Social insurance benefits are payments made to an employee subject to state social insurance in exchange for earnings lost by him for certain reasons or in addition to earnings.

Compensation for harm caused to life or health is monetary compensation for harm caused to health that a citizen has suffered.

Alimony is material support provided to a disabled family member or children by a person who is required by law to provide such support.

The following categories of citizens have the right to receive these amounts, as mentioned above:

1) heirs - members of the testator's family who lived together with the deceased;

2) disabled dependents of the testator, regardless of the fact of cohabitation with him.

In the presence of other heirs, the named citizens have a priority right to receive amounts payable to the testator, but not received by him during his lifetime, provided as a means of subsistence. The named categories of persons receive the indicated funds, regardless of the order of heirs they are and whether they are indicated in the will, and also regardless of the presence or absence of working capacity and need.

Claims for the payment of the said amounts must be presented to the obligated persons within four months from the date of the opening of the inheritance. In the absence of persons entitled to receive amounts not paid to the testator, or if these persons do not present claims for the payment of these amounts within the prescribed period, the corresponding amounts are included in the inheritance and inherited on a general basis (clauses 2 and 3 of article 1183 of the Civil Code). As can be seen from the wording of the article, the legislator has established a shorter period for filing claims for the payment of amounts owned but not paid to the testator, compared to the total period for accepting the inheritance (six months) - four months from the date of opening the inheritance, i.e. from the moment of death of the testator or recognition of his death. This period is restrictive: if it is missed, the possibility of extension is not provided.

Claims for the payment of unpaid amounts provided to the testator as a means of subsistence should be presented only to obligated persons (for example, they can be recognized as an employer, the administration of an educational institution, a customer under an author's contract, etc.). The issuance of such amounts should be made, as a rule, no later than a week from the date of submission of the relevant documents to the obligated persons.

When several family members apply for the indicated amounts, the amounts due to them are divided equally between them.

The special position occupied in the estate by amounts provided as a means of subsistence shall be terminated in the following cases: a) if none of the persons entitled to receive them has expressed a desire to exercise their right; b) there are no such persons; c) the deadline for presenting claims for their receipt has expired. In the presence of one of the above conditions, the corresponding amounts are included in the composition of the inheritance and are subject to inheritance on a general basis.

8.9. Inheritance of property granted to the testator by the state or municipality on favorable terms

The issue of the legal regime of property granted to the testator on preferential terms (either free of charge or at significantly reduced prices), including the fate of this property after the death of the one to whom it was granted, was resolved in the legislation in different ways, depending on whether what property, to whom, in connection with what circumstances and under what conditions was provided.

Persons for whom benefits are established for the purchase of certain types of property, in particular, include disabled people, combat veterans, and former minor prisoners of fascist concentration camps. These persons, in the presence of medical or other indicators, may be provided with means of transport (motorized strollers, manual cars, horses with harness, horse-drawn vehicles, etc.), as well as other property intended to create conditions ensuring economic and moral well-being such persons.

Article 1184 of the Civil Code finally determined the procedure for the inheritance of property provided to the testator on favorable terms. Means of transport and other property provided by the state or municipality on favorable terms to the testator in connection with his disability or other similar circumstances, are part of the inheritance and are inherited on the general basis established by the Civil Code.

8.10. Inheritance of state awards, honorary and memorable signs

State awards of the Russian Federation are the highest form of encouragement for citizens for outstanding merits in the defense of the Fatherland, state building, economy, science, culture, art, education, education, health protection, life and rights of citizens, charitable activities and other outstanding services to the state. This wording is contained in the Regulations on State Awards, approved by Decree of the President of the Russian Federation of March 2, 1994 No. 442 (hereinafter - the Regulations on State Awards).

In accordance with clause 1 of this Regulation, the state awards of the Russian Federation are:

- the title of Hero of the Russian Federation;

- orders, medals, insignia of the Russian Federation;

- honorary titles of the Russian Federation.

In the system of state awards, the Order of the Holy Apostle Andrew the First-Called, the Order of Merit for the Fatherland, the Order of Zhukov, the Order of Courage, the Order of Military Merit, the Order of Honor, the Order of Friendship, a special distinction medal "Gold Star", a medal of the Order " For Services to the Fatherland", the military order of St. George and the insignia - the St. George Cross, the military orders of Suvorov, Ushakov, Kutuzov, Alexander Nevsky, Nakhimov, which are awarded for exploits and distinctions in battles to defend the Fatherland during an attack on the Russian Federation by an external enemy .

State awards can be awarded to citizens of the Russian Federation, foreign citizens, as well as stateless persons. Persons awarded state awards enjoy benefits and benefits in the manner and cases established by the legislation of the Russian Federation.

According to the rules of art. 1185 of the Civil Code, state awards awarded to the testator and to which the legislation on state awards of the Russian Federation applies, are not part of the inheritance. The transfer of these awards after the death of the recipient to other persons is carried out in the manner prescribed by the legislation on state awards of the Russian Federation. State awards belonging to the testator, which are not covered by the legislation on state awards of the Russian Federation, honorary, commemorative and other signs, including awards and signs in collections, are part of the inheritance and are inherited on the general basis established by this Code.

The transfer of these awards after the death of the recipient to other persons is carried out in the manner established by the legislation on state awards of the Russian Federation: state awards and documents for them are transferred for storage as a memory to one of the spouses, father, mother, son or daughter (the list of such persons is not subject to an expanded interpretation ).

In the absence of heirs, state awards and documents to them are subject to return to the Administration of the President of the Russian Federation for State Awards.

In accordance with the rules of clause 14 of the Regulations on state awards, with the consent of the heirs, by decision of the Commission on State Awards under the President of the Russian Federation, state awards and documents for them of a deceased recipient or awarded posthumously can be transferred to state museums if there is a museum petition supported by the relevant state authority of the subject Russian Federation, or petitions of the federal executive body in charge of the museum. The corresponding museum sends the act of accepting state awards to the Office of the President of the Russian Federation for Personnel Issues and State Awards. State awards handed over to museums for storage and display shall not be returned to the heirs of the deceased recipient or posthumously awarded.

State awards cannot be stored in museums that operate on a voluntary basis and are not provided with the necessary conditions for the storage of state awards.

According to the rules of clause 15 of the Regulations on State Awards, the heirs of the deceased awarded, leaving the Russian Federation abroad for permanent residence, have the right to export documents on awarding their deceased relative. The procedure for the export of state awards made of precious metals is regulated by the legislation of the Russian Federation.

State awards belonging to the testator, which are not subject to the Regulations on State Awards, - honorary, commemorative signs, as well as awards and signs in collections - are inherited on a general basis. The named awards may refer to categories of things for which a special order of succession has been established.

8.11. Features of inheritance of winnings

The composition of the inheritance property, determined at the time of opening the inheritance, may include lottery tickets, savings books for winning deposits, bonds, etc.

When inheriting by law, the winnings are distributed among all heirs in equal shares.

When inheriting by will, the winnings are distributed depending on its content. So, if the testator indicated this property (lottery tickets, savings books, bonds, etc.) as a specific property passing to this heir, then, accordingly, the winnings must be transferred to this particular heir. If, however, it is seen from the text of the will that the property transferred to the heirs is only a carrier of a certain value, constituting the share of the inherited property allocated by the testator, and if it is clear from the meaning of the will that it is not this property as such that is bequeathed, but namely its face value at the time of the will, then winnings must be distributed among all heirs in equal shares.

Since the winnings were not included in the inheritance property at the time of the opening of the inheritance, they are not taken into account when calculating the mandatory share. The creditors of the testator also cannot claim these amounts.

8.12. Copyright inheritance

As stated in paragraph 2 of Art. 1110 of the Civil Code, inheritance is regulated by this Code and other laws, and in cases provided for by law, other legal acts. From January 1, 2008, part four of the Civil Code comes into force, which will regulate copyright.

According to Art. 1112 of the Civil Code, the inheritance includes things belonging to the testator on the day the inheritance was opened, other property, including property rights and obligations. However, Art. 128 of the Civil Code distinguishes the results of intellectual activity, including exclusive rights to them (intellectual property), into a separate category of types of civil rights. Since part three of the Civil Code does not contain special reservations about intellectual property, it seems that one should proceed from the fact that the concept of "property rights" also includes property copyrights.

According to the rules of paragraph 5 of Art. 1232 of the Civil Code, the basis for state registration of the transfer of an exclusive right to the result of intellectual activity or to a means of individualization by inheritance is a certificate of the right to inheritance. An exception to this rule is the cases provided for in Art. 1165 of the Civil Code, i.e. cases of division of the inheritance by agreement between the heirs. In accordance with paragraph 1 of this article, the inheritance property, which is in the common shared ownership of two or more heirs, may be divided by agreement between them. The rules of the Civil Code on the form of transactions and the form of contracts are applied to the agreement on the division of inheritance.

The transfer of an exclusive right to the result of intellectual activity or to a means of individualization to another person without concluding an agreement with the right holder is allowed in cases and on the grounds established by law, including in the order of universal succession (for example, inheritance) and when foreclosing on the property of the right holder ( article 1241 of the Civil Code).

The exclusive right to a work passes by inheritance. In the cases provided for by Art. 1151 of the Civil Code (inheritance of escheated property), the exclusive right to a work that is part of the inheritance is terminated and the work passes into the public domain (clauses 1 and 2 of article 1283 of the Civil Code).

The validity period of the exclusive right to a performance, the transfer of this right by inheritance and the transfer of a performance into the public domain is regulated by the rules of Art. 1318 GK. Thus, the exclusive right to a performance is valid throughout the life of the performer, but not less than 50 years, counting from January 1 of the year following the year in which the performance was made, or the recording of the performance, or the transmission of the performance on the air or by cable. The rules of Art. 1283 GK. When the exclusive right to perform expires, that right passes into the public domain. For a performance that has passed into the public domain, the rules of Art. 1282 GK.

References

1. Amirov, M. Inheritance of property rights in connection with the participation of the testator in economic societies / M. Amirov // Legality. - 2001. - No. 10.

2. Begichev, A. V. Inheritance of the enterprise / A. V. Begichev. - Volgograd, 2006.

3. Gushchin, V. V. Inheritance law and process / V. V. Gushchin, Yu. A. Dmitriev. - M., 2004.

4. Zaitseva, T. I. Inheritance law. Commentary on legislation and practice of its application / T. I. Zaitseva, P. V. Krasheninnikov. - 4th ed., revised. and additional - M., 2003.

5. Zakharenkova, O.N. On challenging the actions of a notary who refused to issue a certificate of the right to inherit real estate / O.N. Zakharenkova // Advocate practice. - 2005. - No. 1.

6. Commentary on the Civil Code of the Russian Federation (article by article), part three // ed. A. P. Sergeev, Yu. K. Tolstoy, I. V. Gliseev. - M.: Prospekt, 2002.

7. Kostycheva, A. I. Inheritance by will /A. I. Kostycheva // Bulletin of notarial practice. - 2003. - No. 2.

8. Kotukhova, M. V. Escheat property: history and topical issues of the present / M. V. Kotukhova // Inheritance law. - 2006. - No. 2.

9. Manannikov, O. V. Inheritance by will and invalidity of the will / O. V. Manannikov // Notary. - 2003. - No. 1.

10. Nemkov, A. M. Essays on the history of inheritance law / A. M. Nemkov. - Voronezh, 1979.

11. Ostapyuk, N. I. Trust management of hereditary property / N. I. Ostapyuk // Notary. - 2006. - No. 1.

12. Pokrovsky, I. A. Main problems of civil law / I. A. Pokrovsky. - M., 1998.

13. Gubanov, A. A. Constitutional guarantee of the right of inheritance // State and law. - 2002. - No. 9. - S. 57-63.

14. Smolina, L. V. Inheritance law: a course of lectures / L. V. Smolina. - St. Petersburg, 2005.

15. Commentary on the Civil Code of the Russian Federation, part three (item-by-article) / ed. T. G. Abova, M. M. Boguslavsky, A. G. Svetlanov. - M.: Yurayt, 2004.

16. Yaroshenko, K. B. On the inheritance of bequeathed deposits / K. B. Yaroshenko // Problems of civil, family and housing legislation: Sat. articles / resp. ed. V. N. Litovkin. - M., 2005.

Author: Khamitsaeva Yu.A.

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