Inheritance law. Cheat sheet: briefly, the most important

Free technical library

Lecture notes, cheat sheets
Free library / Directory / Lecture notes, cheat sheets

Inheritance law. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

Comments on the article

Table of contents

The concept, essence and meaning of inheritance law
Principles of inheritance law
Sources of inheritance law
The formation of inheritance law in Russia
The effect of inheritance legislation in space, in time
The concept and content of inheritance legal relations
Objects of inheritance legal relations
Subjects of inheritance legal relations
The concept of the testator in inheritance law
Concepts and bases of inheritance
General provisions, time and place of opening of the inheritance
General Provisions for Inheritance by Will
Principles of succession by will
Inheritance share in testamentary property
Form and procedure for making a will
Notarized wills and wills equated to them
Types of wills
Cancellation and change of will
Invalidity of a will
Execution of a will
Will executor
Appointment and sub-appointment (substitution)
Testamentary refusal (legate)
Testamentary deposit
Heirs by law and the procedure for calling them to inherit
Presentation Inheritance
Compulsory inheritance share
Inheritance by disabled dependents of testator
Inheritance of escheated property
General provisions for accepting an inheritance
Ways and terms of acceptance of inheritance
Transfer of the right to accept an inheritance (hereditary transmission)
Registration of inheritance rights
Inheritance certificate
Liability of heirs for the debts of the testator
General Provisions for Renunciation of an Inheritance
Types of renunciation
Increment of hereditary shares
General provisions for the protection of inheritance and its management
Measures for the protection of inheritance
Trust management of hereditary property
Compensation for expenses caused by the death of the testator, and expenses for the protection of the inheritance and management of it
Common property of heirs
Section of inheritance: general provisions and types
Protection of the interests of persons in the division of inheritance
Preemptive right in the division of inheritance
Inheritance of the rights of participants in economic and peasant partnerships, societies and cooperatives
Inheritance of rights associated with participation in a consumer cooperative
Enterprise Inheritance
Inheritance of limited transferable things
Land inheritance
Inheritance of property of a member of a peasant (farm) economy
Inheritance of unpaid amounts and property provided to the testator on preferential terms
General provisions of the hereditary process
Subjects and evidence in cases arising from inheritance legal relations
Inheritance law in the USA and Europe

1. The concept, essence and meaning of inheritance law

Inheritance of tangible and intangible benefits is carried out by way of inheritance. Inheritance - transfer from the deceased person (testator) of his property to another person in accordance with the rules of inheritance law. Inheritance law in the legal literature is considered in several aspects: as an academic discipline, as a science, as a branch of law, as a branch of legislation.

Under inheritance law academic discipline refers to a set of topics, sections aimed at training qualified lawyers to apply theoretical and practical skills in the field of application of the rules of inheritance law.

under inheritance law as a scienceis understood as a set of developed theories, doctrines, explanations of the norms of inheritance law.

Under inheritance law branch of law refers to the totality of legal norms governing emerging social relations in the field of inheritance of property, i.e., relations arising from the transfer of the property of a deceased person to his heirs in accordance with the law or on the basis of a will.

Under inheritance law branch of legislation is understood as a set of normative legal acts aimed at fixing the rule of law that regulates social relations arising in the field of inheritance law.

The rules of inheritance law define: who can be the testator, the heir, who cannot receive an inheritance (regardless of the will of the testator), the guarantee of a certain category of heirs receiving an obligatory share, etc. The institution of inheritance law has acquired the greatest importance in connection with the development of private property.

In the context of the development of market relations, citizens become owners of an increasing range of property that they would like to transfer to their relatives or other persons. Taking into account the influencing factors on the development of market relations, the Constitution of the Russian Federation (adopted at a popular vote on December 12, 1993) fixed the provision on the guarantee of inheritance. In any case, the property of the deceased passes to his relatives or other persons specified in the will, except in cases where it is impossible for these persons to accept the inheritance (the inheritance is transferred to the state - escheated property).

The subject of inheritance law is the property left by the deceased person (testator) to other persons (heirs). Despite the fact that any property can be transferred by inheritance, the law provides for restrictions (the impossibility of transferring property restricted from circulation, withdrawn from civil circulation, the impossibility of inheriting land plots by right of ownership by foreign citizens).

For inheritance law, the dispositive method is characteristic, that is, the ability of the subject to dispose of his rights independently, at his discretion within the framework of the law. This method also implies the possibility of the subject not to exercise the right to accept the inheritance.

2. Principles of inheritance law

Principles Inheritance law recognizes the fundamental ideas, the beginnings, enshrined in the current legislation, in accordance with which state regulation of social relations in the field of inheritance law is carried out.

In inheritance law, the following principles are distinguished:

1) the principle of universal hereditary succession;

2) the principle of freedom of will;

3) the principle of ensuring the rights and interests of the necessary heirs;

4) the principle of taking into account not only the actual, but also the alleged will of the testator;

5) the principle of freedom of choice of heirs;

6) the principle of protecting the inheritance from anyone else's illegal or immoral encroachments, etc.

The principle of universal succession lies in the fact that, in the order of inheritance, the property of the deceased passes to other persons in an unchanged form as a whole at the same moment.

The principle of freedom of will echoes the dispositivity principle. The testator has the right to make a will without disclosing its contents. The testator in the will can leave someone an inheritance, or can deprive the heirs of the right to inherit, and also has the right to change or cancel the will at any time. However, the testator's freedom to testate property is limited by the impossibility of inheriting the right to receive interest on the resale price under the will, the impossibility of obtaining rent from property by a legal entity, but only by a citizen and non-profit organizations, if this does not contradict the law and the goals of the organization.

The principle of ensuring the rights of necessary heirs also limits the principle of freedom of will, because, despite the fact that the testator independently determines the inheritance share of each heir, the state obliges to take into account the category of persons recognized as necessary heirs (minors, dependents, disabled persons). If the testator has not determined the inheritance share to the necessary heirs, it is determined in a judicial proceeding. If the necessary heirs are declared unworthy, they are deprived of the obligatory inheritance share.

The principle of taking into account not only the actual, but also the alleged will of the testator expressed in how the circle of heirs is determined. If the will does not specify specific heirs, and also not all the property of the testator is indicated, then the remaining property will be distributed among the heirs called on the basis of the law.

The principle of inheritance protectionagainst anyone's unlawful or immoral encroachments is embodied in a system of norms that ensure the protection of not only the inheritance, but also the procedure for managing it, as well as reimbursement of related expenses, the division of property between heirs, etc.

3. Sources of inheritance law

Sources of inheritance law is a hierarchical system of regulations containing the rules of inheritance law and regulating inheritance relations.

Primary source of inheritance law is the Constitution of the Russian Federation. The right to inherit is guaranteed by art. 35 of the Constitution of the Russian Federation. From this article it follows that the state guarantees the transfer of ownership from the testator to the heirs, if not by will, then by the right of inheritance by virtue of law; the right to inherit any property belonging to the testator; the state establishes the restriction of the freedom of the will by determining the mandatory share. However, the law may establish restrictions on the freedom to testate property belonging to the testator (property limited in civil circulation, as well as withdrawn from civil circulation).

Inheritance legal relations are also regulated by federal laws adopted in accordance with the norms of the Constitution of the Russian Federation. This type of source includes:

1) the norms of the Civil Code of the Russian Federation, part one of November 30, 1994 No. 51-FZ, part two of January 26, 1996 No. 14-FZ, part three of November 26, 2001 No. 146-FZ and part four of 18 December 2006 No. 230-FZ (GK RF);

2) norms of the Tax Code of the Russian Federation, part one of July 31, 1998 No. 146-FZ and part two of August 5, 2000 No. 117-FZ (TC RF);

3) norms of the Land Code of the Russian Federation dated October 25, 2001 No. 136-FZ (LC RF);

4) the norms of the Fundamentals of the Legislation of the Russian Federation on Notaries dated February 11, 1993 No. 4462-I, which regulate the rules and procedure for making a will by a notary;

5) norms of laws on intellectual property (it is impossible to transfer the right of authorship to a work by way of inheritance, etc.);

6) other normative acts.

In practice, when inheritance legal relations arise, many controversial situations arise (misinterpretation of the rules of law, conflicts of law, etc.). For the correct resolution of issues related to the application of the rules of inheritance law, it is necessary to resort to the explanations of the Plenum of the Supreme Court, as well as the Constitutional Court. Not all authors adhere to the point of view that the rulings and rulings of the Supreme Court and the Constitutional Court are sources of inheritance law, since the courts do not have the right of legislative initiative, that is, rulings and rulings are not of a normative nature, but are only advisory and explanatory character. Despite the fact that many authors do not consider the clarifications of the Supreme and Constitutional Courts as sources of inheritance law, they are necessary material in resolving disputes in the application of inheritance law.

4. Formation of inheritance law in Russia

In connection with the development of market legal relations, inheritance law is becoming increasingly important. The formation of inheritance law Russia took place in several stages. The first stage is the adoption of the Decree of the All-Russian Central Executive Committee of April 27, 1918 "On the abolition of inheritance", according to which the property of the deceased was labor property. The decree established a limit on the value of property that could be inherited. The cost of this property should not exceed more than 10 thousand rubles. The property of the testator could be received by persons strictly specified in the law (spouse, direct relatives, brothers, sisters). With the help of the introduction of the Decree, it seemed to limit the possibility of inheriting the property of the deceased, and in the future to abolish the institution of inheritance. This was due to the absence of private property in principle.

The second stage The development of inheritance law is considered to be the adoption of the Civil Code of the RSFSR in 1922, which changed the circle of heirs (spouse, direct heirs, disabled and indigent persons who were actually dependent on the deceased for at least one year before his death). With the adoption of the Civil Code of the RSFSR, the institution of a will was adopted, which limited the circle of heirs established by law, the testator was given the right to deprive all heirs of their inheritance, while all property went to the state. The increment of the hereditary share of inherited property was not allowed.

Significant changes to the inheritance legislation were made within five years. They signaled the advance third stage development of inheritance law. By means of amendments, the maximum amount of inheritance was abolished, progressive taxation was introduced, the circle of heirs was expanded (adopted children could also be heirs), for the first time it was allowed to bequeath one’s property not only to individuals, but also to the state, state institutions, public organizations, the concept of an obligatory share of a certain heir groups.

Next stage development of inheritance law is associated with the end of the Great Patriotic War. Now inheritance was possible only under certain conditions: spouses had to be married, dependents, in order to receive a mandatory inheritance share, must live with the deceased for at least one year before his death, succession lines were established, grandchildren and great-grandchildren were recognized as heirs, the size of the mandatory share increased. If at the time of the opening of the inheritance there was not a single heir by law, it was allowed to bequeath property to another person.

A more specific provision inheritance law was received in the norms of the Fundamentals of Civil Legislation of December 8, 1961 and in the Civil Code of the RSFSR of June 11, 1964. Today, the Constitution of the Russian Federation establishes only a guarantee for inheritance, more specific rules relating to inheritance law are enshrined in the Civil Code of the Russian Federation.

5. Action of the legislation on inheritance in space, in time

Legal relations arising in the field of inheritance law are of a continuing nature and arose both under the old legislation on inheritance law and after the adoption of the Civil Code of the Russian Federation. Changes in the adoption of the new Civil Code of the Russian Federation were made to many provisions of inheritance: the size of the mandatory inheritance share, the circle of heirs under the will, the increase in queues for inheritance under the law, the terms of claims by creditors in relation to inherited property, and much more.

When legislation changes, the question always arises of the application of a particular normative act to resolve inheritance and other legal relations. The provisions on the operation of a newly adopted law or regulation are established by the introductory federal law, which describes in detail all the situations that may arise when changing one legislation to another. So, in the Federal Law of November 26, 2001 No. 147-FZ "On the Enactment of Part Three of the Civil Code of the Russian Federation" it is indicated that part 3 of the Civil Code of the Russian Federation enters into force on March 1, 2002, and for all civil legal relations , which arose before the introduction of Part 3 of the Civil Code of the Russian Federation, the section "Inheritance Law" applies to those rights and obligations that arise after its entry into force. For example, to wills made before the entry into force of part 3 of the Civil Code of the Russian Federation, the rules on the grounds for the invalidity of a will that were in force on the day the will was made are applied.

The law on the introduction of the Civil Code of the Russian Federation provides retroactive effect of law and "experiencing" the law. The retroactive force of law can be expressed in the following provisions: the law determined a smaller number of hereditary queues, the new law significantly expanded this number. The question arises which law should be applied. The answer is this: if the period for accepting the inheritance did not expire on the day the Civil Code of the Russian Federation was introduced, and if it did, then none of the heirs accepted the inheritance on that day, a certificate of the right to inherit was not issued, the property did not acquire the status of escheated property, then the line of heirs determined by the new legislation.

"Experience" can be traced in the norms of inheritance of property by will. The law establishes that if a will was drawn up before the introduction of the Civil Code of the Russian Federation, that is, before March 1, 2002, and openly in accordance with the norms of the new legislation, then all the same, the mandatory inheritance share is determined according to the norms of the legislation during the period of which it was compiled.

Inheritance law has its effect on the entire territory of the Russian Federation, including in courts belonging to the Russian Federation. However, if the inheritance includes a foreign element, then the inheritance of this property occurs in accordance with the norms of the state where this property is located. Foreign citizens and stateless persons within the framework of our state are endowed with civil legal capacity on an equal basis with citizens of the Russian Federation.

6. The concept and content of inheritance legal relations

Inheritance legal relations - social relations arising from the transfer of material and intangible benefits of a deceased person to other persons in the order of inheritance, regardless of the basis of inheritance. The composition of hereditary legal relations is formed by the following elements: subjects, content and subject of hereditary legal relations.

Subjects of inheritance legal relations are heirs called to inherit. The testator is not the subject of inheritance legal relations, since he is no longer alive. With the onset of the death of the testator, his legal capacity, and at the same time his participation as a subject, ceases.

The heirs also include persons who were not born at the time of the opening of the inheritance, but conceived during the life of the testator. Heirs are called to inherit, regardless of whether they are capable, adult, stateless person, foreign person, etc. at the time of acceptance of the inheritance.

Legal entities can be heirs only by will. In this case, the legal entity must exist at the time of opening the inheritance. For the calling of a legal entity to inherit, it does not matter whether it is a commercial or non-commercial organization. However, if a will is made in favor of a sect that is not a legal entity on the territory of the Russian Federation, then it may be declared invalid on the basis of a contradiction to public order. Other international organizations (UN) and foreign states may also be involved in inheritance. As for the testator, the making of a will by an incapacitated person, a minor, at the moment of enlightenment of a mental illness, etc., is the basis for recognizing the will as invalid. In this case, inheritance occurs according to the law.

Under the content of inheritance relations refers to the totality of the rights and obligations of its participants. In the first place is the right of the heir to accept the inheritance, and the corresponding obligation of third parties should be considered not to cause obstacles in the exercise by the heir of his right. When accepting an inheritance, the heir becomes a participant in a variety of legal relations. When accepting an inheritance, the heir may be burdened with an obligation that passes along with the inherited property (payment of a debt in a loan obligation). However, the heir has the right to refuse to enter into these legal relations by renouncing the inheritance.

Inheritance legal relations arise regarding the object, i.e. inheritance.

Legacy - a set of tangible and intangible rights that pass by way of inheritance from a deceased person to other persons on the basis of a will or law.

7. Objects of inheritance legal relations

The object of hereditary relations there may be a thing, other property, as well as intangible benefits owned by the deceased person (testator). Any property and benefit belonging to the testator can be transferred by the right of inheritance, unless it is inextricably linked with the personality of the testator (for example, the right to alimony, the right to compensation for harm caused to the life or health of a citizen, as well as the rights and obligations, the transfer of which in the order inheritance is not allowed).

Inheritance carried out by means of a will, on the basis of the law and is called "universal succession". The transfer of rights and obligations to heirs from a deceased person is only possible if they belonged to the latter. The rights and obligations that do not belong to the testator cannot be transferred on the basis of inheritance.

Not included in inheritance things or rights to things that the testator possessed illegally (weapons, narcotic drugs or psychotropic substances). The heir has the right to inherit a thing limited in circulation only if there is a permit issued in his name for the storage or use of this thing. However, if the heir does not have such an order, then this property is sold, and the proceeds from the sale of this property are transferred to the heir, who should have owned the property limited in civil circulation, less the costs incurred for its sale.

The inheritance may also include the right to receive funds not received by the testator (pensions, benefits). The sum insured is not included in the inheritance if the insurance contract is concluded in favor of the beneficiary. The sum insured is a component of the inheritance if the testator did not receive the due monetary compensation before his death. State awards, as a rule, go to the heirs for storage as a memory. When inheriting a share or shares, the issue of the possibility to take part in the implementation of affairs in a business partnership, consumer cooperative, joint-stock company is resolved with the help of the relevant legislation.

Along with the property, the inheritance also responsibilities for its content, on settlements with debts with which this property is burdened.

Non-property rights that are inextricably linked with a person cannot be the object of inheritance. However, laws and other regulations provide for categories of rights that can be transferred by way of inheritance (the right to publish a book if it was not published during the life of the testator for any reason, the right to protection of copyright and other rights).

8. Subjects of inheritance legal relations

The range of subjects of inheritance legal relations can be defined as with a will, and on the basis of the law. The heir does not have to have full legal capacity or reach a certain age. Heirs can be both natural and legal persons. Moreover, the former do not have to be citizens of the country of which the testator is a citizen. Heirs can be foreign persons (in this case, there are restrictions on the inheritance of land plots), stateless persons, as well as legal entities, Russian and international organizations, foreign states, the Russian Federation, constituent entities of the Russian Federation, municipalities.

It should be noted that only the legal entity that exists at the time of opening the inheritance can be the heir. The successor of a legal entity is not an heir.

However, the law provides for the calling to inherit by will and by virtue of the law not only of citizens who were already born at the time of the opening of the inheritance, but also of those who have not yet been born. Attracting an unborn citizen to inheritance is possible only if he was conceived before the death of the testator. Despite the fact that the unborn child is also taken into account when determining the inheritance, however, he becomes the subject of inheritance legal relations only after his birth, with the proviso that he will be born alive. If a child is born dead, he is not considered to be called to inherit. If at the opening of the inheritance there is a conceived child, the division of the inherited property is postponed until his birth.

In case of inheritance of all property by the testator of the Russian Federation (in this case we are talking about the so-called escheated property), she is not entitled to refuse to accept it, since if the Russian Federation refuses to accept the inheritance, the property acquires the status of ownerless property, while it is automatically credited for RF.

The law defines the category of heirs who cannot inherit either by law or by will - unworthy heirs, that is, those citizens who, by their deliberate illegal actions, sought to increase their or other heirs' share of the inheritance. Such a circumstance must be confirmed by a court verdict. This rule applies only to those persons who committed these acts with direct or indirect intent. This rule does not apply to persons who committed acts through negligence. Unworthy heirs may also be called persons entitled to a compulsory share, i.e. dependents, minors, incapacitated and incapacitated heirs. Parents deprived of parental rights also do not have the right to inherit, if their rights are not restored by a court decision before the opening of the inheritance. If the heirs do not fulfill their obligations to maintain the inheritance property, they may be recognized as unworthy heirs on the basis of a court decision.

9. The concept of the testator in inheritance law

The norms of the Civil Code of the Russian Federation do not contain a definition of the testator, as well as heirs. Only in the legal literature have theorists developed the concepts "heir" и "inheritor". Many indicate that the heir and the testator are subjects of inheritance legal relations. However, this judgment is incorrect.

testator is not the subject of hereditary legal relations simply because he is no longer alive at the time of calling the heirs to inherit. Despite the fact that the testator is not the subject of inheritance legal relations, he occupies not the last place in inheritance law.

A testator is a person whose property (tangible and intangible benefits) is transferred to another person or persons (heirs) in the order of inheritance both on the basis of a will and on the basis of a law. The testator can only be an individual, and it does not matter his age, legal capacity and other physical disabilities. It should be noted right away that this rule applies to testators by law. As for the making of a will, the law provides for a restriction. Since a will is a one-way deal, Persons making a will are required to: an individual who has reached the age of majority (18 years, except for emancipation and marriage), with full legal capacity. The testator must have full capacityat the time of the will, otherwise it will be declared invalid and will not have any legal force. If the testator is recognized by the court as incapable due to his illness, but at the time of making the will there was an enlightenment of the disease, then regardless of his condition, the will will be declared invalid. A will may be drawn up by a person subsequently recognized as legally incompetent. This will will have legal force if the heirs do not prove that, when making the said will, the testator was already in a clouded state.

Limited in capacity testators are also not allowed to make a will. The making of a will by the guardian of a testator who is limited in legal capacity or wholly incapacitated is not permitted by law.

If the testator is recognized as incapable or limited in capacity, then a will cannot be drawn up, and, therefore, inheritance can only be carried out according to the law.

The testator can be not only a citizen of a particular country, for example, the Russian Federation, but a stateless person (stateless person), a person with dual citizenship (bi-patride), a foreign citizen who has a certain place of residence, and also does not have a certain place of residence. The place of residence of a person is the place where the citizen permanently or predominantly resides.

10. Concepts and grounds for inheritance

Under inheritance is understood as the transfer of the rights and obligations of the testator (inheritance) to the heirs upon the occurrence of an event (death of the testator) in accordance with the norms of inheritance law.

legacyrecognizes the totality of material and non-material rights, as well as obligations that pass from the testator to the heirs in the order of hereditary succession. In the order of inheritance, all rights and obligations of the testator are transferred, except for those that cannot be transferred due to their legal nature (copyright). There is also property that is limited in circulation, but can be transferred by inheritance. For the heir to receive property, limited in civil circulation, You must also have permission to store and use it. Property withdrawn from civil circulation cannot be transferred as an inheritance.

Meaning of Inheritance manifests itself in the fact that a person who possesses certain property (whether material or intangible goods) must be sure that all his property will pass according to his will to the heirs indicated in the will, or by virtue of the law the property will be received by the heirs by law, unless otherwise will be stipulated by the will or the norms of the legislation. The absence of the institution of inheritance would bring chaos to various spheres of relations. First of all, upon the death of a citizen with an outstanding loan. Credit institutions would not know who to contact with the claims made. The closest relatives of the deceased person would be deprived of the means to continue their existence.

There are 2 forms of the basis of inheritance: will and law. In order for the fact of inheritance to take place, regardless of the basis of inheritance, at least two legal facts must be present: the moment of opening the inheritance and the person who is called to inherit. It should be noted that when making a will, the testator determines the person to whom this or that property passes, when, when inheriting by law, it is also necessary to determine who is the heir by law and whether he can accept the inheritance. The testator may indicate in the will that his property will not pass to any of the heirs, both under the will and under the law. Thus, the testator deprives all heirs of the right to inherit. According to the Civil Code of the Russian Federation, all property belonging to the testator will become the property of the Russian Federation, that is, it will acquire the status of escheated property.

Thus, regardless of whether there is a will or not, inheritance is possible only if there are legal facts.

11. General provisions, time and place of opening of the inheritance

Inheritance can only be opened upon the death of the testator, which can be recorded by issuing a death certificate or by a valid court decision.

The death of a citizen occurs when all the organs that ensure the life of a person do not cease to function.

Happy Inheritance Opening Day is the day of death of a citizen, indicated in the act of the court or death certificate. The day of the opening of the inheritance, if the missing citizen is declared dead, is considered the day the court decision on declaring the citizen dead comes into force. A citizen may die as a result of an emergency. In this situation, the day of the alleged death is established by a court decision, however, the day of opening the inheritance is still recognized as the day the court decision on declaring the citizen dead comes into force. This is due to the fact that the death of a citizen occurred much earlier than the court decision was made and, perhaps, the deadline for accepting the inheritance has passed. In this case, the court will need to make another court decision to restore the missed deadline for a good reason, since the deadline for accepting the inheritance is procedural. In any case, if the fact of death is established in court, the date of opening of the inheritance is the moment the court decision enters into legal force.

If citizens died on the same day with a gap of several hours, then they are recognized as dead at the same time, i.e. commorients. Commoorientations do not inherit from each other. The heirs of each of them can be called to inherit. However, if citizens died in different time zones and a different day came in one of the time zones, then they are not commoorients.

Place of opening of inheritance is the last place of residence of the decedent.

Place of residence of a citizen the place where a citizen permanently or predominantly resides is considered. There are situations when it is impossible to determine the place of residence of a citizen, if, for example, he is a refugee or forced migrant. If the testator leaves immovable property as a legacy, then the place of opening of the inheritance will be the location of the immovable property. If the immovable property is presented in the form of several objects, then the place of opening of the inheritance will be the immovable property of greater value. If the testator did not leave real estate as an inheritance, then the place of opening of the inheritance will be the location of the main part of the property. The value of property is determined by its appraisal. Valuation of property is carried out according to its market value on the basis of a decree of the Government of the Russian Federation.

12. General provisions of inheritance by will

Will - a volitional act of the owner of the order, possession and use of his material and intangible benefits after death. Only the owner, being a natural person, can bequeath his property. Will has urgent nature, since it opens after the death of the testator, which is inevitable.

When drawing up and signing a will, there can be no guarantee or representation. If the testator is illiterate, has physical disabilities (deaf, dumb, cannot write), a will can be drawn up with the help of other persons, but with the obligatory presence of a notary, from the words or at the will of the testator. Anyway The will must be signed by the testator in person.

At the time of drawing up and signing the will, the testator must have full legal capacity (reach the age of 18, or 16 years - in the case of emancipation or marriage). A will drawn up and signed by a person with limited or complete incapacity will be declared invalid by the court. If a person at the time of signing the will was not aware of his actions and was not aware of the possible consequences, this fact may also serve as a basis for recognizing the will as invalid.

Possession, use, disposal of tangible and intangible benefits provided for in the will is possible only after the moment discovery of inheritance.

A will is not a conditional transaction, since the cancellation or change of a will occurs only at the will of the testator, which may not happen. A will from several persons is not allowed. Only one person can bequeath, but in relation to an unlimited number of persons.

The will is drawn up and signed at the notary's office in the presence of a notary who, upon the death of the testator, ensures the opening of the will. When drawing up a will, it is not necessary to indicate specific tangible and intangible benefits. It is possible to use the following wording: "all my property, no matter how it is expressed and wherever it is."

A will should be distinguished from a deed of gift. A donation contract is also drawn up personally by the donor during his lifetime. The agreement is unilateral. The rights and obligations of the donee come into effect after the signing of the donation agreement. When drawing up a donation agreement, it is necessary to indicate which thing is to be donated.

The main difference consists in the fact that an agreement providing for the transfer of a gift to the donee after the death of the donor is void. Only by means of a will can a person transfer to another person the right to own, use and dispose of his tangible or intangible goods.

13. Principles of inheritance by will

Freedom of will is one of the fundamental principles of inheritance law. Freedom of testament primarily means that the testator has the right to bequeath property to whomever he considers necessary. Freedom of will means that the testator has the right to bequeath his tangible and intangible benefits to any person, and can also disinherit, distribute a share of the inheritance to each inherited person, etc. The testator can refuse to inherit one of the heirs by law and bequeath all his property to other persons. In this case, the testator does not have to motivate his decision, the testator is not obliged to disclose the contents of the will.

Freedom in determining the share of the will limited to a mandatory share, which is provided for by law. If there are persons specified in the law who are granted a mandatory share of the inheritance, testamentary heirs will be limited in receiving the entire inheritance due to them.

In close relationship with the principle of freedom of will is the principle of secrecy. To ensure the principle of the secrecy of the will, the legislator provides for the responsibility of persons directly connected and carrying out the implementation of the will of the testator. In case of violation of the assigned duties, a notary, translator, execution of a will, witnesses and other persons may be civil liability. The testator has the right, when divulging the secret of the will, to demand compensation for moral damage. The testator, being capable, may at any time amend or mark the will. In concept freedom of will also includes the category of property that can be inherited. The testator may dispose of all property belonging to him, including property limited in circulation. In this case, the heir must obtain permission to store or use this property. Otherwise, the property may be sold, and the proceeds from its sale are returned to the heir minus the costs incurred for its sale. The testator can also bequeath tangible and intangible benefits that do not exist at the time of the will, but there is a high probability of the appearance of this tangible or intangible benefit. The main thing is that the testator at the time of opening the inheritance has rights to the bequeathed benefit. If the life of the testator was insured in the name of the beneficiary, the sum insured to be paid cannot be indicated in the will, since the testator does not have property rights in relation to this amount. The right to receive this amount will arise only from the beneficiary after the death of the insured. The testator also cannot bequeath rights that are inextricably linked with the personality of the testator (the right of authorship, the right to an author's name, etc.).

14. Inheritance share in testamentary property

As a rule, in the will the testator indicates the property that should belong to one or another heir after his death. However, when making a will, the testator is not required to indicate what property is due to which heir. The testator can simply list all his property and determine the circle of heirs to whom this property should be inherited on the occasion of his death. In this situation, the law determines that if the will the share of each heir is not indicated, then the inheritance share of each heir is considered equal. Thus, all property passed by inheritance is divided into equal shares between all the heirs specified in the will.

It is not a basis for recognizing a will as invalid if the composition of the property to be inherited includes indivisible thing. An indivisible thing is a thing, the division of which is impossible without changing its purpose. Disputes regarding the use of an indivisible thing are resolved by going to court. During the trial, the court determines procedure, terms of use indivisible thing in relation to each heir. The procedure for the use of an indivisible thing may be provided for by a will. The procedure for using an indivisible thing is also established in accordance with the parts of this thing intended for the heirs in the will. The procedure for the use of an indivisible thing may be independently agreed between the heirs. At the same time, in the certificate of the right to inheritance, which is issued in relation to this thing, a note is made about the agreed procedure for use.

Another situation is also possible. If it is impossible to divide the property among themselves, one of the heirs may demand from other heirs to pay a share of the property, which is recognized as an indivisible thing. If other heirs do not agree, the heir who wishes to receive his share of the property may apply to the court with an application to oblige the other heirs to pay the share due to him. In each specific case, when resolving the issue of allocation and payment of the inheritance share, the court takes into account the significant interest in the use of common property. Based on this fact, the court decides on the possibility of compensation for the share of the heir. When receiving his share of the inherited property, the heir loses all rights to this property. In the course of the trial and taking into account specific circumstances, as well as taking into account the personal interest of the heir in the use of an indivisible thing, the court has the right, regardless of the size of the shares due to other heirs, to award the indivisible thing to one of them, while obliging the heir to pay the inheritance share of each heir.

15. Form and procedure for making a will

Will - an act of a person, which indicates the will of the testator for the further possession, use and disposal of material and intangible goods belonging to him. Will form must be in writing. If the will is made orally and does not have a written expression, then it is recognized as invalid. To content of the will The Civil Code of the Russian Federation does not provide for special requirements. It is not necessary to specifically indicate any property, the most important thing is to indicate to whom all the tangible or intangible benefits of the testator are due. However, in order to avoid paradoxical situations, it is better to indicate what kind of property belongs to whom according to the will. The will must be signed by the testator personally or with the help of an applicator, which is recorded when drawing up the will. It is not allowed to assign rights and obligations to make a will to a representative.

Will is made on behalf of one citizen, a will from several persons is not allowed by law.

When drawing up, signing, certifying a will witnesses must be present, whose data must be indicated when drawing up a will. The law establishes cases when the presence of witnesses is mandatory. In this case, the absence of witnesses entails the invalidity of the will.

Will is certified a notary or a person authorized to perform these actions. A will may be valid even if it has not been certified by a notary or other authorized person. This exception has wills made in emergency conditions, and closed wills, which cannot be certified by a notary due to their legal nature, otherwise a closed will will not be such. However, the notary is required to issue a document confirming the acceptance of the will.

All participants in the making of a will are subject to secrecy responsibility testament until it is read out upon the death of the testator. When disclosing the content of the will, the testator has the right to demand compensation for both moral and material damage. The Civil Code of the Russian Federation contains a list of persons who cannot act as witnesses: a notary; the person in whose favor the will is made; disabled citizens; illiterate; persons with physical disabilities that do not allow them to be aware of what is happening; persons who do not speak the language in which the will is drawn up. The participation of an improper witness in the making of a will is not grounds for recognizing the will as invalid, however, this will may be challenged in court as inconsistent with the norms of inheritance law.

16. Notarized wills and wills equated to them

In the legal literature there are notarized and equivalent wills. notarized are those that are certified by a notary, as well as a person authorized to perform such actions. A notarized will must be written by the testator or recorded from his words by a notary. When writing and recording a will, technical means (electronic computer, typewriter) may be used.

The will must be read personally testator. If the testator cannot read the text of the will, then the will is read out for him by a notary, about which an appropriate inscription is made on the will indicating the reasons why the testator could not read the will personally.

The will must be signed by hand testator. If the testator, due to physical disabilities, serious illness or illiteracy, cannot sign the will with his own hand, it may be signed by another citizen at his request in the presence of a notary. In this case, a note is made on the will, for which reason the testator could not sign the will himself, while indicating the surname, name, patronymic of the person who signed the will, according to the documents presented.

The notary warns all persons who received the will at the time of making the will about the secrecy of the making of the will and about the envisaged responsibility. When making a will, the testator is warned by a notary about the need to provide for a mandatory share in the inheritance.

What is new in Russian legislation is that the law provides for cases where it is not necessary to certify a will with a notary, but the possibility of applying to a body that, according to the law, is authorized to make a will. Such persons include officials of local governments, consular offices, etc. In this case, the making of a will must take place on the basis of the provisions of the Civil Code of the Russian Federation.

The law provides for wills that are not made in the presence of a notary, but have their legal force, no matter what.

Equivalent to notarized wills:

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

2) wills of citizens who are during 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 servicemen certified by commanders of military units;

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

17. Types of wills

The following types of testaments are distinguished:

1) closed testament - when drawing up a closed will, since it is drawn up without anyone's knowledge, no one is obliged to keep this will. The notary, in the presence of at least two witnesses, seals the will in an envelope on which the witnesses put their signatures. On the envelope containing the closed will, the notary makes an inscription about the place and time of the adoption of the will, last name, first name, patronymic, as well as the place of residence of the testator in accordance with identity documents. After the adoption of a closed will, the testator is issued a document confirming the acceptance of a closed will. 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, as well as heirs who wish. After opening the will, its text is read out and a protocol is drawn up, which is signed by witnesses and a notary;

2) testamentary orders in banks - the testator determines what funds, from which bank account and to whom should be inherited. In this case, there is no need to resort to the help of a notary, but it is enough to use the right to a testamentary disposition, where it will be indicated to whom these funds are due. A testamentary disposition of rights to funds in a bank must be personally signed by the testator, indicating the date of its preparation and certified by a bank employee who has the right to accept for execution the client's instructions regarding the funds in his account. The rights to funds, in respect of which a testamentary disposition has been made in a bank, are part of the inheritance and are inherited on a general basis in accordance with the provisions of the Civil Code of the Russian Federation;

3) emergency wills - when drawing up a will in emergency situations, the following requirements must be observed: the testator must be in a position that clearly threatens his life, have full legal capacity, the will must be signed personally by the testator, as well as two witnesses. If the requirements are not met, the will loses its legal force and is void. If the emergency situation has passed, then within a month the testator must make a will in a strictly appropriate form. Failure to comply with this procedure will result in the invalidity of the will. In order for a will made in emergency situations to be executed, the heirs must apply to the court to certify the death of the testator in emergency circumstances.

18. Cancellation and change of will

When making a will, the testator retains the right cancel or change will. At the same time, when canceling or changing his will, the testator should not motivate his actions. A testator may revoke or amend a will at any time. A will is recognized as a unilateral transaction, therefore, to change or cancel it, the consent of the heirs and other persons is not required, but only the will of the testator is necessary.

It is necessary to distinguish between revocation and amendment of a will. At canceling the will is canceled in its entirety. After the cancellation of the will, the following actions may follow: the testator may make a new will, or may not make a new will. If a new will is not made, the heirs are determined strictly according to the law. The testator may change his decision completely and deprive all heirs of the entire inheritance by canceling the old will and accepting a new one. It is worth noting one very important point. If a newly made will does not meet all the requirements of the law and has an invalid value beforehand, or the newly drawn up will is recognized by the court as invalid according to the legislation, the previous will, which was canceled by the new will, comes into effect. If the new will is declared invalid by the court and the moment of acceptance of the inheritance is already open, the property is returned to the heir specified in the previous will.

It is also possible that a subsequent will, which does not contain direct indications of the cancellation of the previous will or individual testamentary dispositions contained in it, cancels this previous will in full or in the part in which it contradicts the subsequent will. Thus, if a testamentary assignment was provided for in the previous will and it was not canceled by the subsequent will, then the heirs must fulfill the will of the testator in the part that does not contradict the new will.

A will drawn up later cancels the one drawn up earlier in whole or in part and does not contain exceptions regarding deposits, it should be borne in mind that this rule also applies to testamentary orders made to branches of the Savings Bank of the Russian Federation and the Central Bank of the Russian Federation, provided that the notarized will contained a special indication that it also applies to a contribution in respect of which a testamentary disposition was previously made.

RџSЂRё change the will can be changed in part, a new will is not drawn up. In this case, the testator may change the heirs or property that is due to one or another heir. For example, not every will can be changed or revoked. According to the law, wills made in emergency situations or testamentary orders in a bank can only change or cancel the same will. When trying to cancel or change these types of wills, notarized, the law gives preference to notarized wills.

19. Invalidity of a Will

In case of violation of the provisions of the Civil Code of the Russian Federation, 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 this recognition (Void testament).

Persons whose rights and legitimate interests are violated by this will have the right to contest a will. Before the opening of the inheritance, contesting the will is not allowed. Initially, the will is endowed with such principles as the freedom of the will and the secrecy of the will. Disputing a will before its opening would mean a violation of the secrecy of the will, since until the death of the testator (testator), no one should know what the will says (for the disclosure of information contained in the will, the persons participating in the making of the will are responsible), because the testator may exercise the right to annul or amend the will without motivating his decision. Based on the foregoing, a will can only be challenged after the death of the testator.

Invalidity of a will can be recognized in a judicial proceeding, through the appeal of persons whose right is violated by this will, or regardless of the decision of the court (insignificance of the will). A will can only be disputed after the opening of the inheritance.

A will may be declared invalid if it does not meet the requirements of the Civil Code of the Russian Federation (it is not made in writing, there is no signature of witnesses, if their participation is required by law, etc.). Mistakes and minor violations of the procedure for drawing up a will cannot be grounds for recognizing a will as invalid.

A will can be challenged whole, and in part. The invalidity of individual dispositions contained in a will does not affect the rest of the will, if it can be assumed that it would have been included in the will and in the absence of invalid dispositions.

Since the will is a one-sided transaction, the norms of the Civil Code of the Russian Federation on the invalidity of transactions are applied to it. An invalid transaction does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment it was made.

A will may be declared invalid both after its opening before the acceptance of the inheritance, and after the acceptance of the inheritance. If the will was declared invalid after the acceptance of the inheritance, then all property transferred in the order of inheritance is withdrawn from the heir who accepted the inheritance and transferred to the newly called heirs. They may be called by virtue of another will or by law.

20. Execution of a Will

A will is made for the purpose of its execution. Thus, a written will has the characteristic feasibility. The testator, after his death, must be sure that the will will be executed. Therefore, the Civil Code of the Russian Federation provides for rules governing issues related to the execution of a will. For example, the law determines who executes the will, who can be the executor of the will, the powers of the executor of the will, the possibility of claiming reimbursement of expenses incurred by the executor of the will. In order for a will to be executed, it is necessary to appoint an executor, as well as obtain the consent of the executor of the will to execute the will. The consent of the executor of the will may be expressed both in writing and orally, both during the making of the will and during its execution. There are no requirements for written form by law. After the consent of the executor of the will to the performance of the assigned obligation, the testator must proceed to its execution. A citizen may also be recognized as having consented to the execution of a will if he actually began to execute the will within a month from the date of opening of the inheritance.

Sometimes the execution of the will causes difficulties. Such a situation would not arise, but since the testator is no longer alive, there is no way to clarify his will. In this case, it applies will interpretation. A will may be interpreted by a notary, an executor of a will, or a court. When interpreting by persons authorized to interpret, the literal meaning of the words and expressions contained in the will is taken into account. 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.

By fixing this provision, the legislator strengthens one of the most important principles of inheritance law - the principle of taking into account not only the actual, but also the alleged will of the testator, as well as the principle of protecting the interests of the testator.

All disputes arising during the execution of the will are resolved in court. If the executor of the will is not indicated in the will and disputes arise between the heirs regarding the execution of the will, the court may appoint an executor of the will. This circumstance represents a guarantee on the part of the state, and also protects the inheritance from the arbitrariness of the heirs. The testator can also foresee such a situation, in connection with which he can appoint the executor of the will himself.

21. Executor of Will

Will executor are the heirs or the executor of the will, if the division of property is carried out in a judicial proceeding. The execution of the will in accordance with the wishes of the testator is carried out by the heirs indicated in the will. If a dispute arises during the division of property between the heirs, it is resolved in court.

The following requirements apply to the executor of the will:

1) an individual (a legal entity cannot be an executor of a will, since this institution is based on a trusting relationship between the testator and the executor of the will);

2) full legal capacity;

3) reaching the age of majority;

4) the consent of the executor of the testator to the implementation of the obligation assigned to him. Will executor doesn't have to be a citizen of any state, he can be a stateless person (stateless person), a foreign person. The executor of the will may be removed from the performance of his duty on his own initiative, on the initiative of the heirs, in a judicial proceeding. After the performance of his duties, the executor of the will has the right to reimbursement of expenses incurred in connection with the execution of the will of the testator, as well as to remuneration. Compensation for expenses that have been incurred or that will be incurred in the future, and remuneration is made at the expense of the inherited property. Expenses will be reimbursed if the court finds them committed within reason.

An executor of a will may be appointed both for the execution of the entire will and for the receipt of an inheritance by an individual heir under the will.

For the participation of the executor of the will in court sessions, the provision of a document confirming his authority is not required. The executor of the will acts in court and in the execution of the will on his own behalf in the interests of the testator and may take part in any civil legal proceedings (claim, special, arising from public legal relations). The executor of the will is not a representative, attorney, trustee, as he performs all actions on his own behalf.

The executor of the will shall be issued by a notary a certificate of the fulfillment of the obligation assigned to him. The law also provides measures to be taken by the executor in the execution of a will:

1) ensure the transfer to the heirs of the inheritance property due to them;

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;

4) fulfill a testamentary assignment.

22. Appointment and sub-appointment (substitution)

Institute of Purpose and Sub-Destination is another state guarantee of inheritance, which is guaranteed by the Constitution of the Russian Federation. Appointment involves granting the testator the right to determine the heir to whom he wishes to inherit all his material and intangible benefits by drawing up a will. Thus, the testator has the right to choose his heir even among those persons who are not included in the circle of heirs by law.

Sub-purpose represents the right of the testator to designate and specify in the will a "replacement" for the designated heir. In other words, the law provides for substitution, i.e., the replacement of the retired party by a party endowed with the same rights and obligations. Subappointment is one of the types of testamentary disposition along with testamentary refusal, testamentary assignment. The testator, when drawing up a will, has the right to sub-appoint an heir if he has concerns about the account of the specified heir in the will that he may not accept the inheritance, refuse to accept the inheritance, not have time to accept the inheritance on time (is also a refusal of the inheritance) , may be declared unworthy of the heirs, deprived of the inheritance, may die before accepting the inheritance or die together with the testator. The law provides an exhaustive list of when a sub-designated heir may accept an inheritance instead of the heir named in the will.

Substitution Institute resonates with the principle of freedom of will, since substitution allows the testator to take steps to transfer the inheritance to other hands. The appointed heir has the right to refuse the inherited property. Assuming the possibility of this behavior of the appointed heir, the testator can protect himself, being not sure of the correctness of the refusal of the appointed heir. Thus, even if the appointed heir refuses the inherited property, he does not have the right to refuse in favor of other persons, since the testator provides for a sub-appointed heir. The possibility of the appointed heir to exercise refusal in favor of other persons would lead to the loss of legal force of the will, and to be more precise, to a violation of the principle of inheritance law - the protection of the interests of the testator.

If the appointed heir dies before accepting the inheritance, the heirs by way of transmission have the right to accept the inheritance. However, the law provides that if the nominated heir dies before accepting the inheritance, then the next heir will be the sub-designated heir and no one else. This situation is possible only if there is a will, in which the testator indicates a sub-appointed heir.

23. Testamentary refusal (legate)

A testamentary refusal is a type of special testamentary orders. A testamentary refusal involves the transfer of certain property by the testator, which may not be included in the mass of hereditary property, through the heir (heirs) to someone under a will.

The essence of a testament consists in the fact that the testator in the will has the right to impose on the heir the obligation to perform certain actions in relation to a third person. The obligation to execute a testamentary refusal may be assigned both to heirs by will and by law. The obligation to execute a testamentary refusal can only be fulfilled by a direct indication of this action in the will. After the opening of the inheritance, if there is a testamentary refusal in the will, the notary shall issue an appropriate certificate. A person who receives tangible and intangible benefits through a testamentary refusal is called legatee.

The execution of a testamentary refusal is carried out by the heir at the expense of the property due on the basis of a testamentary refusal. The property encumbered with a testamentary refusal is transferred to the heir, who must fulfill the will of the testator. A testamentary refusal is made on account of the transferred property. The property transferred to the heir on the basis of a testamentary refusal, after the execution of the will of the testator, passes to the heir in the order of inheritance.

If the legatee never used the right granted to him to receive a testamentary refusal (he died after the opening of the inheritance), then this right does not pass to anyone and terminates (unless another legatee is sub-appointed to the legatee). The right to receive a testamentary refusal is valid for 3 years from the date of opening of the inheritance. It is during this period that the legatee has the right to exercise this right, and he has the right to use this right all his life. After 3 years of obtaining the right to testamentary refusal, the right to testamentary refusal ceases. The legatee(s) shall have the right to demand the right to execute a testamentary refusal.

The subject of a testament there may be a transfer to the legatee of ownership, possession on the basis of another property right or the use of a thing that is part of the inheritance. When an heir is encumbered by a legate, the sequence of fulfillment of obligations by the heir is determined. First, the heir must pay off all debts in relation to this property, and then on his obligations according to a testamentary refusal, after which he has the right to use the property for his own purposes on the basis of inheritance rights (if anything remains of this property). If the heir entrusted with the execution of a legacy is necessary, then first the debts on this property are paid, then the obligatory share is reserved, and then the legacy is executed.

24. Testamentary deposit

A testamentary assignment is a type of special testamentary dispositions. The essence of a testament consists in the fact that the testator in the will may impose various kinds of obligation of a property or non-property nature not only on the heir, as provided for in the testamentary refusal, but also on another person who must and can cope with the obligation imposed on him.

The right to execute a testament have all persons interested in the execution of the testamentary deposit (heirs, public organizations, etc.). Unless otherwise provided in the will, this right is exercised in court. A testamentary assignment is different from a testamentary renunciation according to the following criteria:

1) a testamentary deposit is carried out in accordance with a generally useful purpose, and it may not be of a property nature;

2) as in a legacy in a testamentary deposit, there is no specific (concrete) person who has the right to demand the execution of a testamentary deposit.

A testamentary deposit is made from the property provided by the testator. First, settlements are made with creditors for the debts of this property, then the reservation of the mandatory share (if the execution of the testamentary assignment is entrusted to the necessary heir), after which the testamentary assignment is enforced through this property. The testator, in accordance with the law, may leave his animals in the care of persons indicated by him, as well as exercise the necessary supervision and care for them. Improper supervision or care of animals may serve as a basis for public organizations to apply to the court with a statement on the possibility of terminating the testamentary laying and transferring animals to their care along with the means intended for their maintenance. If a testamentary deposit is of a property nature, then the rules stipulated for a testamentary refusal shall apply.

The law establishes cases of transfer to other heirs of the obligation to fulfill both a testamentary refusal and a testamentary assignment. If, as a result of a confluence of circumstances, the share of the heir who was supposed to execute the testamentary refusal or testamentary assignment passes to other heirs, the latter are obliged to execute the testamentary disposition of the testator. This provision is valid unless otherwise provided by the will. There are differences in the execution of a testamentary refusal and testamentary laying on by other heirs. The right to receive a testamentary refusal is not possible through hereditary transmission, but only by direct sub-appointment provided by the testator. In turn, a testamentary assignment can be transferred in the order of inheritance.

25. Heirs by law and the procedure for calling them to inherit

The law establishes succession lines according to the law, based on kinship with the testator.

The law establishes seven queues in order of succession:

1) the heirs of the first stage by law are the children, spouse and parents of the testator, as well as grandchildren and descendants of the testator by right of representation;

2) heirs of the second stage are 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, as well as persons by right of representation;

3) heirs of the third stage are full and half brothers and sisters of the testator's parents (uncles and aunts of the testator);

4) the heirs of the fourth stage are the great-grandfathers and great-grandmothers of the testator;

5) heirs of the fifth stage are the children of the testator's nephews and nieces (cousins and granddaughters) and siblings of his grandparents (cousin grandparents);

6) heirs of the sixth order are the children of the testator's cousins and granddaughters (great-great-grandchildren and great-granddaughters), the children of his cousins (cousins and nieces) and the children of his cousins (cousins and aunts);

7) heirs of the seventh order are stepsons, stepdaughters, stepfather and stepmother of the testator.

Children after the mother inherit in any case, and after the father only if the marriage was registered, or when paternity is established in court, or in a marriage equivalent to a registered one (religious marriage). If the marriage was not registered, then the father cannot inherit after the children. Also, in the order of inheritance, grandparents on the mother's side are called.

Adopted children inherit on a common basis with their own children, but they lose the right to inherit the property of their "biological" parents. Children adopted after the death of their parents have the right to inherit all property due to them.

The surviving spouse has the right to inherit in the presence of a registered marriage, otherwise he is not recognized as an heir. If the marriage is dissolved before the death of one of the spouses, the surviving spouse does not have the right to inherit. Marriage is dissolved from the date of making the corresponding entry in the civil status acts or at the moment the court decision enters into legal force. If the marriage was entered into by a legally incompetent person, it is recognized as invalid and the right to inherit is lost. Cohabitants do not inherit each other's property, unless otherwise established by a court.

Parents deprived of parental rights do not have the right to inherit, unless this right is restored before the opening of the inheritance. Heirs recognized by the court as unworthy cannot inherit.

26. Inheritance by representation

The share of the heir who died before the opening of the inheritance or simultaneously with the testator, according to the law, passes by right of representation to his respective descendants in cases of inheritance first, second and third hereditary order, established by the Civil Code of the Russian Federation. The right of representation is divided equally among the heirs.

Can't inherit by right of representation, a descendant of an heir by law, who is deprived of the inheritance by the testator. To deprive an heir of an inheritance is the right of the testator. When depriving the right of inheritance of any heir, the testator does not have to motivate his decision.

Do not inheritby right of representation, descendants of an heir who died before the opening of the inheritance or simultaneously with the testator and who would not have had the right to inherit.

Can't inherit neither by law nor by will, citizens who, by their deliberate, unlawful 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 contribute to an increase in the share of the inheritance due to them or other persons, if these circumstances are confirmed in court. At the request of the interested parties, the heir may also be deprived of the right to inherit in a judicial proceeding, if his malicious evasion from the fulfillment of his legal obligations to support the testator is recognized. The above rules also apply to persons entitled to a mandatory inheritance share.

Inherit by representation only heirs up to the third succession line can. After the third stage, inheritance by right of representation is not provided. Only the grandchildren of the testator and their descendants, nephews and nieces of the testator, cousins and sisters of the testator can inherit by right of representation. Those grandchildren, nephews, cousins and sisters who are children of unworthy heirs or deprived of inheritance rights do not have the right to inherit by right of representation. It is possible that the heirs were deprived of their inheritance by a will, and their descendants did not accept the inheritance, since they did not have the right to do so. If this will is declared invalid, then the deprived heirs will receive the right to inherit by right of representation. The inheritance will be divided according to the newly appeared heirs.

When inheriting by right of representation, a mandatory inheritance share is not transferred, since its receipt is inextricably linked with the personality of the heirs, the circle of which is strictly defined by the norms of the law.

27. Mandatory share in the inheritance

When dividing an inheritance between heirs, regardless of the basis of inheritance (by will or by law), compulsory inheritance. The mandatory share allocated by the Civil Code of the Russian Federation is of a socially protective nature. Despite the freedom of will, the state provides for restrictions for the social security of a certain circle of persons.

Only a certain circle of heirs can receive a mandatory share:

1) minors;

2) disabled children;

3) disabled spouse and parents;

4) disabled dependents. Minor children are entitled to the compulsory share in any case, even if the child is emancipated or married before reaching the age of majority.

The right to an obligatory inheritance share is satisfied by a court decision, if it was not provided for in the will, from the remaining part of the unbequeathed property, part of the inheritance property, even if this leads to a decrease in the rights of other heirs by law or testament to this part of the property. If the part of the property not bequeathed is insufficient for exercising the right to an obligatory share, the property bequeathed shall be taken into account. In this case, if all the property was bequeathed by means of a will and a mandatory share is not provided for the heirs, then the execution of the will is suspended for the allocation of a mandatory share. The size of the compulsory share is established by the state - not less than half of the share that would be due to them upon inheritance on the basis of the law, that is, an amount is established, less than which cannot be awarded to the heir. The mandatory share at the discretion of the testator may be more. Based on the provisions enshrined in the law, the right to receive a mandatory share cannot be transferred to the heirs. Refusal of the obligatory share of the heir is not allowed.

When determining the mandatory share of the inheritance, it is necessary to take into account all the heirs who would be involved in the inheritance by law, with the exception of those heirs who could not be involved in the inheritance (inappropriate heirs). The circle of heirs to whom the mandatory share is due is determined at the time of the death of the testator, and not at the time of drawing up the will.

At present, other heirs may challenge the grounds for obtaining a mandatory share in court. The court may deprive the obligatory share of the heir, taking into account his property status, if the property due to him as an obligatory share is necessary for another heir to live or is a source of obtaining means of subsistence.

28. Inheritance by disabled dependents of testator

Inheritance by disabled dependents classified as a separate group by law. This is due to the presence of a special subject of emerging legal relations (between disabled dependents and the testator). These persons are called to inherit if on the day of opening the inheritance they are disabled and lived together with the deceased not less than a year before his death.

Disabled persons who have reached retirement age are recognized (women 55 years old, men 60 years old); disabled people of groups I, II, III, including children with disabilities, persons under the age of 16 (as well as students under 18).

Dependents must be maintained by the deceased, and assistance provided to the deceased must be the only source of livelihood. At the same time, dependent persons may be recognized as such if they were dependent on the deceased for at least one year before his death. However, this person is not obliged to be disabled, he can (and must, in order to call him to inherit) acquire this status before the opening of the inheritance. Exists two categories of disabled dependents, who are called to inherit:

1) citizens who are unable to work by the day of opening the inheritance, who are not included in the circle of heirs, who are dependent on the deceased for at least a year before his death, regardless of whether they lived with him or not;

2) citizens who are not included in the circle of heirs, but by the day of the opening of the inheritance are disabled and have been dependent on the testator for at least a year and lived together with him.

These categories differ in that if there are no heirs by law, then disabled dependents are allocated to eighth line of heirs and are called to inherit. This is due to the period of cohabitation of disabled dependents and the deceased person.

To be called to inherit as an independent line of heirs of disabled dependents 3 elements are required:

1) the person at the time of opening the inheritance must have the status of a disabled person;

2) the person must be dependent on the deceased person, i.e. the funds provided by the deceased person must be the main source of livelihood;

3) the person must live together with the deceased person for at least a year before his death.

The absence of at least one of the elements is the basis for refusing to call a disabled dependent to inherit by law. In the event that a disabled person is an heir both by right of representation and by law, the issue is resolved through the interpretation of the law. Based on the analysis of the norms of the Civil Code, it seems that the dependent must inherit on one basis at his discretion, otherwise the principles of inheritance law (the principle of protecting the interests of heirs) are violated.

29. Inheritance of escheated property

Feature escheated property is that all property shall be transferred to the state by right of ownership. Property can be transferred to the state both on the basis of law and on the basis of a will. On the right of ownership, property cannot be transferred to the subjects of the Russian Federation and municipalities on the basis of the law, but only on the basis of a will. On the right of ownership, property can be transferred to the subjects of the Russian Federation and municipalities only if there is an order of the Russian Federation.

Analyzing Russian legislation, it should be noted that the possibility of transferring property to the state (acquiring the status of escheated property) is reduced to zero by establishing the order of inheritance (seven queues).

However, despite the fact that there are heirs in order of priority, property can still be transferred as escheat to the state. This situation is possible if the testator directly indicated that the property becomes the property of the state or the heirs are recognized as unworthy heirs by a valid court decision. Also, the heirs may, in order of priority, renounce the inheritance without specifying the person to whom it should go. However, if the heirs renounced the inheritance in favor of another heir, then in order to acquire the status of escheated property and to transfer this property into ownership, the refusal of the heir to whom it should belong by the right of renunciation of the inheritance is necessary.

All disputes related to the recognition of hereditary property as escheated in whole or in part are resolved judicially. On the one hand, the heirs come forward demanding that the property be recognized as heirs subject to inheritance by law or by will, and on the other hand, state bodies advocate the escheat of inherited property in the interests of the state. In this way, property is recognized as escheated and becomes the property of the Russian Federation in the event that if a:

1) there are no heirs by law, by will;

2) none of the heirs accepted the inheritance or renounced it, without specifying in whose favor he renounces;

3) the heir has renounced the inheritance in favor of the state;

4) all heirs are deprived of the right to inherit;

5) all property is bequeathed to the state;

6) only a part of the property has been bequeathed, and there are no legal heirs for the inheritance of another part of the property; consequently, the rest of the property passes to the state as escheated property.

The assessment and sale of property transferred to the state is the responsibility of the tax authorities.

30. General provisions for accepting an inheritance

After the death of the testator, the heirs may proceed to accept the inheritance. However, the inheritance after death is not obtained immediately. The owner of the property has died and is not the subject of any legal relationship. The heirs only acquired the right to accept the inheritance, but not the right to inherit. In the legal literature, the inherited property in this situation is called lying until the moment when the heirs come into their rights on the right of inheritance, i.e., it belongs neither to the heirs, nor to the testator, nor to the state.

In order to acquire an inheritance, the heir must accept it. If there are no heirs in accordance with the law or by will, or the heirs are deprived of their inheritance, or are recognized as unworthy heirs, the property passes into the ownership of the state.

The right to accept an inheritance is subjective and provides for the right to choose an heir to accept the inherited property or to refuse it in favor of another person or without specifying the latter. To accept the inheritance, the heir must express a desire to do so. To do this, at the place of opening of the inheritance, the heir submits an application for acceptance of the inheritance or an application for the issuance of a certificate of the right to inheritance to a notary or an official authorized to make notarial certificates. To accept an inheritance, it is not necessary to receive two documents, it is enough to receive one of them, since they are equivalent in legal force. An application for accepting an inheritance or for issuing a certificate for the right to inherit is submitted exactly at the place where the inheritance was opened, despite the fact that the heir lives elsewhere.

The acceptance of an inheritance can also be carried out by the performance of conclusive actions, i.e. the heir, by his behavior and actions, makes it clear that the fact of acceptance of the inheritance has been carried out. In this case, there is no need to write an application to a notary.

The law also provides terms of acceptance of the inheritance - 6 months. This term is procedural, i.e., if it is missed, it is possible to restore it in court.

Describing the acceptance of an inheritance from a legal point of view, we can say that this is a unilateral transaction with retroactive effect, which is characterized by such properties as unconditionality, unconditionality, indestructibility, and must be completed within the time limits specified by law. The acceptance of an inheritance is in any case a unilateral transaction, regardless of the grounds for acceptance by law or by will.

The heir has the right to accept or not to accept the inheritance. Acceptance of an inheritance with a reservation or under a condition is not allowed by law, since these conditions and reservations may not take place when the inheritance is opened, and the question of ownership of the inheritance will arise.

31. Methods and terms for accepting an inheritance

Inheritance can be accepted in two ways:

1) filing an application for issuing a certificate of the right to inherit or accepting an inheritance to a notary or an official authorized to perform notarial acts (for example, the head of local government in the Far North), at the place of opening of the inheritance;

2) through the performance of conclusive actions, i.e. actions aimed at the actual entry into inheritance rights.

These methods of accepting inheritance are the grounds for the emergence of rights to property. To obtain a certificate for the right to inherit or the right to accept an inheritance, the heir must apply to a notary or other official authorized to carry out notarial acts. The application can be submitted personally by the heir, by mail, with the help of a representative. If the heir is not able to personally bring the application, then the application must be signed by the heir, and this signature must be certified by a notary. When submitting an application by the heir in person, signature and notarization is not required. If the heirs apply to the court to obtain the right to accept the inheritance or a certificate of the right to inherit, the actions of the person are not grounds for refusing to transfer the inheritance and the deadline is not considered missed.

Acceptance of an inheritance is possible through a representative. The powers of the representative must be certified by a power of attorney executed in accordance with the requirements of the law. The power of attorney must provide for the right to accept the inheritance on behalf of the heir. To accept the inheritance by the legal representative of the power of attorney is not required. The acceptance of an inheritance by one heir is not a basis for the acceptance of an inheritance by other heirs. juvenile aged from 14 to 16 years have the right to accept an inheritance with the consent of their parents. Incapacitated persons accept inheritance with the permission of their trustees.

Another way of accepting an inheritance can be expressed in the fact that the heir actually uses the inherited property, thereby confirming that he has accepted the inheritance and treats it as property. For example, during the period of acceptance of the inheritance, the heir continues to pay utility bills for an apartment and other things. By this, the heir confirms the fact of acceptance of the entire due inheritance.

All of the above actions must be completed by the heir within the prescribed period - 6 months. The term for accepting an inheritance may be extended outside of court proceedings if there is the consent of all heirs. The grounds for restoring the term for accepting an inheritance cannot be: the concealment by one of the heirs of information about other heirs when accepting the inheritance, the heir’s employment and lack of material means to arrive at the place of opening of the inheritance, etc. When such an heir enters into inheritance rights, all previously received documents are canceled.

32. Transfer of the right to accept an inheritance (hereditary transmission)

When opening an inheritance, the heirs have the right to inherit. Since this norm is dispositive in nature, the heir may agree to accept the inheritance, or may refuse to accept the inheritance.

In practice, there are cases when the heir, not having time to accept the inheritance, dies. The inheritance, which was supposed to pass to the deceased heir, passes in the order of inheritance to his heirs in accordance with the law. At the same time, it does not matter on what basis the hereditary property was due to the deceased-heir, on the basis of the law or according to the will. This transfer of inheritance is called hereditary transmission. A person who has not had time to accept the inheritance is called transmitter, and the person to whom the inheritance passes by way of hereditary transmission is called transmitter. If the transmitter bequeathed all his property, then the property that passed by way of hereditary transmission is inherited on the basis of the law. If the following entry was made in the will of the transmitter: "All my property will be inherited by so-and-so", then the property that has passed by way of hereditary transmission is transferred to the transmitter on the basis of the will. At the same time, the accepted inheritance in the order of hereditary transmission is not included in the inheritance, and, therefore, the creditor's claims for the debts of the transmitter cannot apply to this property. This fact is a feature of inheritance in the order of hereditary transmission. From the foregoing, it follows that the state has taken all measures to ensure the guarantee of inheritance enshrined in the constitution of the Russian Federation.

The right to accept an inheritance all the heirs of the transmitter possess by virtue of law, if at the time of the death of the transmitter there was no will, providing for the transfer of the entire inheritance to one of the heirs. When inheriting on the basis of hereditary transmission, attention must be paid to term of acceptance of the inheritance. It will in any case be less than 6 months, but must not be less than 3 months. If such a situation arises and the period for accepting an inheritance in the order of hereditary transmission is less than 3 months, then the period is automatically determined as 3 months and begins to run from the day of the death of the testator. To establish this period, there is no need to go to court, this provision is enshrined in law.

The deadline for accepting an inheritance in the order of hereditary transmission is procedural and can be restored by going to court if the court considers the reason for missing the deadline to be valid.

33. Registration of inheritance rights

The law does not establish the obligation of the heir claim your inheritance, he is given the opportunity by his actual actions (conclusive) to approve the fact of acceptance of the inheritance. However, in practice there are cases that require documentary confirmation of the right to accept the inheritance. This need arises in many situations: the right to use a bank account, the right to use a car, other movable property, as well as other property that is part of the inheritance. However, the registration of their rights of heirs plays a big role not only in making sure that this heir really has the right to dispose of property, but also in cases where it is necessary to establish the amount of duties and taxes levied, when reimbursement of expenses related to the protection of the inheritance and its management, the possibility payment of remuneration to the trustee. Registration of inheritance rights is also important in the presence of creditors and debtors of the testator, who need to know to whom the property has passed, to whom to apply with claims and to whom to repay the debt.

The document certifying the right of inheritance is certificate of inheritance. In the event of this situation, the heir applies to a notary or other person authorized to perform notarial acts (consuls, heads of municipalities, if there is no notary office in this municipality) to obtain a certificate of the right to inheritance. Before receiving a certificate, the heir must prove to a notary or other authorized person that he has the right to inherit by presenting a marriage certificate, birth certificate, extract from the registry office, death certificate, etc.

Obtaining a certificate of inheritance is the right of the heir, therefore, the law not installed term for obtaining the certificate. A certificate of the right to inherit may also be issued before the end of the six-month period, if it is reliably known that there are no other heirs, there are also no obligatory heirs, or all property was bequeathed to only one heir, the inheritance was accepted by all existing heirs. The right to obtain a certificate is also granted to the tax authorities, which are entrusted with the duty of evaluating and selling escheated property that passes on the right of ownership to the state.

In the presence of a disputable legal relationship related to inheritance, the absence of a certificate of the right to inherit is not a basis for refusing to accept a statement of claim. The certificate of the right of inheritance may be declared invalid in a judicial proceeding when interested persons apply to the court.

34. Certificate of right to inheritance

In order to confirm by the heir of his rights to the property that has passed to him by right of inheritance, he must obtain a certificate of the right to inheritance.

Inheritance certificate must be expressed in writing, certified by a notary or other person authorized to perform notarial acts. The certificate of inheritance loses its legal force due to non-signing by a notary or other authorized person.

The basis for issuance by a notary or other official of a certificate of the right of inheritance is the submission of an application by the heir. The application must also be made in writing.

A notary or other authorized person shall issue a certificate of the right to inherit only for the property that existed at the time of the opening of the inheritance. In the event that a certificate of the right to inherit any property was previously issued, and at the time of application a certificate for other inherited property is needed, the notary has the right to issue an additional certificate of the right to inherit. A notary may issue a certificate of the right of inheritance both to each heir individually, and one certificate for all, both for a separate specific property, and for all property as a whole. When issuing a certificate, a notary checks the fact of the death of the testator, the presence of a will, the composition and location of the inheritance property, the circle of persons entitled to a mandatory inheritance share.

A certificate of inheritance may be obtained by the heir or his representative, and at the request of the heir, it may be sent by mail. Issuing a certificate is charged government duty. The amount of the state duty is determined depending on which heir accepted the inheritance, where the inheritance is located (abroad or within the Russian Federation) and other circumstances. Minor heirs under the age of 18, as well as incapacitated heirs, are exempted from paying the state fee when issuing a certificate of the right to inheritance in any case, regardless of the inheritance property. The state duty is also not charged from tax and state authorities for issuing a certificate of the right to inherit the Russian Federation.

The fundamentals of notarial legislation provide for the forms of a certificate of the right to inherit, depending on the basis of the inheritance (by law and by will).

If there are disputable legal relations when accepting an inheritance between the heirs, then a certificate is not issued by a notary, and the dispute is resolved in court.

The issuance of a certificate of the right to inherit is suspended in the presence of a conceived but unborn child.

35. Liability of heirs for the debts of the testator

When accepting an inheritance, the heirs may be notified that the inherited property is encumbered with debts, i.e. when the testator is a debtor. Thus, after receiving the inherited property, the heirs must pay off possible creditors. But in practice, there are cases when the testator is a creditor, then the right to demand satisfaction of creditor claims passes in the order of inheritance to the heirs.

The heirs bear together joint and several liability on the debts of the testator, i.e. the creditor (creditors) has the right to demand satisfaction of creditor claims from one heir, who in turn must pay off the creditor. It should be noted that the heir will be responsible for creditor claims only within the limits of the inherited property. If the inherited property of one heir is not enough to satisfy creditor claims, then another heir is involved. After settlement with creditors, if the inherited property is enough, the heir has right of recourse to other heirs, i.e. the heir has the right to claim compensation for the amounts paid, less the share due on his property. The remaining heirs are liable to the heir, who has settled with creditors, as shared debtors.

In cases of acquisition of hereditary property in the order of hereditary transmission, the heir is liable for the obligations of the testator who owned this property. If both father and son die at the same time, i.e. they are commorients, then both the heirs of the father and the heirs of the son will be called to inherit. The property that was supposed to pass to the deceased son, who did not have time to accept the inheritance, passes in the order of hereditary transmission to the son's wife, i.e., to the father's daughter-in-law. In this case, she will be liable for the obligations of the father, but not the husband, since the property is encumbered with the obligations of the original testator. For the obligations of the husband, the wife will be liable with the property belonging to the husband, which has passed to her by inheritance.

In order to satisfy their claims, creditors must, from the moment of opening the inheritance, submit their claims to the court. The Civil Code of the Russian Federation establishes a period during which creditors can present their claims - during the limitation period. According to the general provisions of the Civil Code of the Russian Federation, the statute of limitations is 3 года, unless otherwise provided by special normative acts, and also this period cannot be interrupted, suspended or restored both by the consent of all heirs, and in a judicial proceeding. This provision is due to the norms enshrined in the Civil Code of the Russian Federation, namely, the replacement of parties to an obligation is not a basis for changing the limitation period.

36. General provisions for renunciation of inheritance

After the opening of the inheritance, the heir has the right to receive an inheritance. The heir, at his discretion, can use it, or he can refuse to accept the inheritance. If the heir expresses a desire to accept the inheritance, then he has right to inheritance. If the heir does not want to accept the inheritance or wants to refuse it, then the option is possible renunciation of inheritance which entails the so-called renunciation of the inheritance. Renunciation can be done in two ways:

1) refusal to accept the inheritance in favor of another (other) heir(s);

2) refusal to accept the inheritance without indicating the persons to whom the inheritance may be transferred in accordance with the law.

The term for renunciation of inheritance is established by the Civil Code of the Russian Federation. An heir wishing to renounce an inheritance must renounce upon the expiration of the term for accepting the inheritance. The term for accepting the inheritance is procedural, and therefore can be restored in court. Until the end of the six-month period, the heir has the right to refuse the inheritance. The heir also has the right to first accept the inheritance, but he must also refuse before the expiration of the period for accepting the inheritance.

The law establishes that if the heir has refused to accept the inheritance or from the inheritance, then he cannot return it back or refuse to refuse the refusal. This provision is mandatory and cannot be changed by the courts. In a judicial proceeding, the term for the heir's refusal can only be recognized as missed, and he, in accordance with a court decision, may refuse the accepted inheritance. The basis for the cancellation of the refusal is also not the desire of the heir to make a refusal in favor of a certain heir, if he made a refusal without indicating the person in relation to whom the refusal can be made in accordance with the law.

If an inheritance is due to an heir on several grounds or in parts, then the heir has the right to refuse the inherited property in whole or in part, as well as to refuse on one or another basis.

The law establishes the ways of renunciation of inheritance:

1) by submitting an application at the place of opening of the inheritance to a notary or other official authorized to issue certificates of the right to inheritance;

2) failure to perform any actions for the actual acceptance of the inheritance.

If the heir's refusal to accept the inheritance is transmitted through a representative or by mail, then the signature of the heir, notarized, is required on the document. For the possibility of transferring and signing the application by the representative, the latter was issued a power of attorney, in which it is necessary to indicate this authority. A legal representative does not need a power of attorney to perform these actions. An application for refusal to accept an inheritance must be made in writing.

37. Types of refusal of inheritance

Renunciation can be done in two ways:

1) refusal of the heir from the inheritance in favor of another person;

2) renunciation of the inheritance without indicating the person in whose favor the renunciation is given.

The law provides for the case when the heir does not have the right to refuse to accept the inheritance. The Russian Federation acts as this heir, which does not have the right to refuse to accept the inheritance as escheated property, which is enshrined in the norms of the Civil Code of the Russian Federation.

If the heir has expressed a desire to renounce the inheritance, while not determining the circle of heirs in whose favor he wishes to renounce the inheritance, then no questions arise regarding the action of the heir. A different situation arises if the heir refuses in favor of other persons. The heir has the right to refuse in favor of other heirs who may be called to inherit in accordance with the requirements of the law. Such heirs can be heirs called by will, by law, in any order of priority, in the order of hereditary transmission, etc. The law establishes a circle of persons who cannot be involved as heirs in the order of hereditary refusal of inheritance: renunciation of an inheritance in favor of persons who are not heirs, in relation to deprived heirs, in relation to heirs recognized by the court as unworthy. The Civil Code also does not allow the refusal in favor of the above persons: from property inherited by will, if all the property of the testator is bequeathed by the heir appointed by him; from the mandatory share in the inheritance; if the heir has a sub-assigned heir.

So the heir has no right refuse in favor of another heir or person from the inherited mandatory share. He can refuse it altogether, but not in anyone's favor.

If the heir who wishes to renounce the inheritance is incompetent or disabled person, then the renunciation of the inheritance is possible only with the consent of the guardianship and guardianship authority. The same situation arises with respect to minors, with the exception of emancipated or married. When the necessary heirs renounce the inheritance, namely from the obligatory share, this is possible only taking into account the fact that this act does not infringe on the rights and legitimate interests of this category of heirs.

An heir also cannot renounce an accepted inheritance in favor of other heirs, if another heir is sub-appointed as the testator in the will. In this case, allowing the heir to refuse the inheritance in favor of other heirs, if there is a sub-appointed heir, would deprive the institution of sub-appointment of any meaning.

The law stipulates that the refusal of an inheritance under a condition or with a reservation is not allowed.

38. Increment of hereditary shares

An increase in the shares of heirs takes place in cases where the heir (in other words, he is called the "disappeared heir") renounces inherited property without specifying an heir, to which all inherited property must pass. In this case, the increment of shares is carried out by the heirs of the same testator, who also bequeathed or inherited any property. The circle of heirs, by whom the increment of the hereditary share is carried out, is determined by law. The increment of hereditary shares is possible during inheritance on any grounds, whether on the basis of a will or on the basis of a law.

In practice, there are cases when the increment of shares does not happen. For example, if all the bequeathed property of the testator passed to one of the heirs, who refused the inherited property or the will was declared invalid or void, then the inherited property will be distributed among the heirs according to the law. In this case, there will be no increase in shares, since the legal heirs did not have any share at all. If the heir under the will refused to accept the inheritance in favor of any person, however, the testator in the will determined a sub-appointed heir, in this case there will also be no increment of the inheritance shares. The specified person will not receive an inheritance share or all of the inheritance property, since the heirs to whom the increase in inheritance shares applies are determined by law, in addition, the testator has already determined in advance the person to whom the inherited property can pass in case the heir refuses to inherit. If the heir, by will or by law, refused to accept the inheritance, and the testator has no other heirs, then the inherited property as escheated property becomes the property of the state.

The inheritance of the fallen heir shall pass to the heirs determined by the law, unless otherwise stipulated, in equal shares. If the testator determined the shares of the heirs in the will, then the share of the refused heir is distributed among the heirs in proportion to their share determined in the will. If a part of the property was bequeathed by the testator to one person, and part of the property was distributed by law among legal heirs, then the inheritance of the fallen heir under the will will be distributed only among the legal heirs. If the heir who falls away is the heir by law, then the inheritance will also be distributed only among the heirs by law.

The increment of the hereditary share can be carried out as a result of the refusal of the heir (disappeared heir) from the inheritance, in the event that the will is declared invalid (insignificant) due to the non-acceptance of the inheritance by the heir within the time limits established by law, the heir will be deprived of the right to inherit or will be recognized as an unworthy heir.

39. General provisions for the protection of inheritance and its management

With respect to hereditary property, it can be carried out protection from possible encroachment of other persons, who do not have the right to receive this property, from possible theft of property, etc. in the interests of heirs, legatees, creditors, as well as the state.

Protection of hereditary property is carried out through the application of measures for the protection of property specified in the law(inventory, delivery of property for storage, trust management of property, etc.). Protection of hereditary property is carried out by a notary at the place of opening of the inheritance, as well as at the location of the relevant part of the hereditary property. The executor of the will also has the right to protection of the inheritance, if there is a will and the executor is indicated in it. In this case, the protection of hereditary property is carried out by a notary, but with prior agreement with the executor of the will.

It is possible that in the place where the inheritance opens, there is no notary office. In this case, the protection of hereditary property will be carried out by official bodies of local self-government, as well as officials of consular institutions of the Russian Federation, who have been granted the right to perform notarial acts.

Basis for action for the protection of hereditary property is to submit an application. Heirs, the executor of the will, local governments, guardianship and trusteeship authorities, as well as other persons acting in the interests of preserving the inheritance property have the right to file an application. Measures for the protection of hereditary property

must be undertaken by a notary, executor of a will, an official within three days from the date of receipt of the application. The period during which measures must be taken to protect hereditary property is established in 6 months, i.e., the term for accepting the inheritance. However, this period is a procedural one and it can be restored if the court considers the reason for the omission to be valid. In accordance with this provision, the term of protection of hereditary property may be extended up to 9 months. The term of protection of hereditary property may also be extended in case of refusal of the heir from the accepted hereditary property.

The notary is given the right to determine the composition of the estate by submitting requests to credit organizations and other legal entities. Credit institutions and legal entities are obliged to provide the information they have. At the same time, the principle of banking, commercial, state and other secrets is not violated. The information received by the notary may be disclosed only to the heirs and the executor of the will. When divulging a secret, a notary may be held liable, which is provided for by the provisions of the Civil Code of the Russian Federation, the Fundamentals of the legislation of the Russian Federation on notaries.

40. Measures for the protection of inheritance

A notary, an executor of a will, an official of local self-government, an official of a consular institution of the Russian Federation may take measures to protect hereditary property based on application interested persons (heirs), the executor of the will, the body of guardianship and trusteeship, officials of local self-government, as well as other persons acting in the interests of preserving the inheritance property.

To take measures to protect the inherited property, it is necessary to describe all the inherited property. An inventory of hereditary property is drawn up by a notary in the presence of two witnesses. The law establishes categories of persons who cannot act as witnesses: notary; the person in whose favor the will is drawn up, as well as the one who is called to inherit; a citizen who does not have full legal capacity; illiterate; persons who do not speak the language in which the inventory will be compiled.

When compiling an inventory of property, heirs and tax authorities may also be present. When compiling an inventory, property can also be valued by agreement of the parties. However, if the participants do not agree to evaluate the property, then the evaluation can be carried out by any interested person who participated in the inventory of the property, at their own expense, with the help of independent experts.

The appraisal is carried out on the basis of the Federal Law of July 29, 1998 No. 135-FZ "On Appraisal Activities in the Russian Federation". Valuation of property is of great importance when applying measures for the protection of property, since when depositing property for storage, it is better to indicate the value of this property in the contract. As a result, the person who accepted the property for storage will be responsible for its safety and compensate for the loss according to the market value of the property. The person who initiated the property valuation bears all the costs personally, but has the right to distribute the costs among other heirs in proportion to the value of the property received by him.

The funds included in the inheritance property are transferred to the notary's deposit account, where they are stored until the inheritance is accepted by the heirs. Securities, precious stones and other valuables are deposited in a bank, usually a state bank. However, all values can be placed in other credit institutions that have a significant position. A storage agreement is concluded between the bank and the notary. The notary is issued a document confirming the acceptance of the bank's valuables. Based on the fact that the storage agreement provides for remuneration, the law establishes the possibility of bank remuneration, the amount of which is established by the Government of the Russian Federation (3%).

In the event that the hereditary property includes items restricted in civil circulation, the notary shall notify the internal affairs bodies of the presence of these items. In this case, the issue of obtaining a license by the heirs (for example, obtaining a permit to carry civilian weapons) is being decided.

41. Trust management of hereditary property

After determining the composition of the inherited property, the notary takes measures to preserve it by inventory, evaluation, placement of valuables in the bank on the basis of a storage agreement, placement of funds in a deposit account. The composition of the inheritance may include property that requires not only protection, but also management. For example, an enterprise, a share in the authorized (share) capital of a business partnership or company, securities, exclusive rights and other property.

Trust management hereditary property is carried out notary in accordance with the norms of the Civil Code of the Russian Federation due to the need for permanent property management. Trust management of property can also be carried out will executor, if a will is drawn up and the executor of the will is directly indicated in it. The law also provides for the possibility of fiduciary management guardianship authorities or any other person as prescribed by law.

Trust management of property is carried out if it is impossible to withdraw hereditary property from circulation without serious negative consequences for it. The law also provides that a notary may appoint a trustee at his discretion. In any outcome of the case, regardless of who is the trustee, a trust management agreement is drawn up.

For example, if the testator was a member of the society, then the duties and rights of the testator are carried out by the heir. Until the acceptance of the inheritance, the trustee is the executor (executor of the will), and in his absence, the trustee is appointed by a notary.

The trust management agreement is drawn up in accordance with the norms of the Civil Code of the Russian Federation, taking into account the specifics of the subject matter of the agreement. The trust agreement must be concluded in writing. The conclusion of this agreement is the basis for entering into the Unified State Register, i.e. this agreement is subject to mandatory state registration. Failure to comply with the written form or failure to comply with the requirements for state registration shall entail invalidity of the contract. It should be noted that state registration involves a change or termination of ownership of property. However, when concluding a trust management agreement, the ownership right does not transfer to the trustee. The trustee performs actions in the interests of the founder of the management, despite the fact that all transactions are carried out on behalf of the trustee. At the same time, in all documents, opposite the name of the trustee, there should be a note "D.U." It should also be noted that a state body or a municipal government body cannot be a trustee.

42. Compensation for expenses caused by the death of the testator, and expenses for the protection of the inheritance and management of it

With the death of the testator, the heirs transfer not only the rights and obligations in relation to the inherited property, but also the obligation to bury the testator. Expenses caused by the death of the testator are subject to compensation.

Reimbursement of expenses carried out by the treasury and in amounts that depend on the status of the deceased. This may be the federal treasury, the treasury of the constituent entities of the Russian Federation, the treasury of municipalities. The amount of compensation depends on the merits of the deceased before the Russian Federation, what figure he is in the state, as well as the reasons for his death, and more.

When burying a deceased citizen, the organization in which the deceased citizen worked also bears a large share of the costs. The amount of assistance provided will also depend on the position, on the position held by the citizen while working in this organization. Assistance to the relatives of the deceased citizen is also provided by his friends, colleagues, companions. Despite the assistance provided by all the listed persons, the bulk of the costs are due to the heirs. The heirs carry out the funeral of the testator at the expense of funds or property that was left by the testator. It also happens that the testator left nothing behind, then the burial of the testator is carried out at the expense of the heirs. All expenses associated with the death of the testator are reimbursed at the expense of the inheritance within the limits of its value.

The following groups of expenses are established by law:

1) expenses caused by the terminal illness of the bequeather;

2) expenses for his worthy funeral, including the necessary expenses for paying for the place of burial of the testator;

3) expenses for the protection of the inheritance and its management, as well as expenses related to the execution of the will.

The expenses caused by the dying illness of the testator include the costs of providing medical care, the purchase of medicines and other expenses necessary to support the life of the testator. However, it is necessary to take into account what the testator died from. If the testator was ill with diabetes and died of cancer of any organ, then the purchase of insulin or tablets necessary for diabetics will not be an expense caused by a terminal illness. In order to be able to receive compensation for the costs incurred, it is necessary to provide evidence that these drugs were necessary to support the life of a citizen.

The following requirements are imposed on the expenses of the second group: they must be reasonable and necessary. The level of reasonableness and necessity is determined according to the existing customs of the area where the deceased citizen lived.

The third group of expenses is reimbursed at the expense of the remaining property, after the expenditures of the first and second groups have been made. Expenses for repayment of debts to creditors are made after the production of all the above expenses.

43. Common property of heirs

If the testator does not specify the distribution of the inherited property in the will or the shares of the heirs are not determined, according to the law, the property is in the common ownership of the heirs, who can be involved in the inheritance as on the basis of a will and on the basis of the law. All inherited property is the common shared property of the heirs involved in the inheritance. If the shares of the heirs are not specified in the will, then they are assumed to be equal. This provision in the Civil Code of the Russian Federation is new and was not provided for in the Civil Code of the RSFSR, although this provision has always been taken into account.

To the common shared property of heirs involved in inheritance, the general provisions on common shared property are applied, taking into account the special rules provided for by the section "Inheritance Law" (part 3 of the Civil Code of the Russian Federation). For example, the priority right to an indivisible thing in the division of property, the priority right to ordinary household furnishings and household items in the division of property, as well as the right to compensation for the disproportion of the received inheritance property with the inheritance share can be exercised within three years from the date of opening the inheritance.

The general provisions of the Civil Code of the Russian Federation establish that property owned by two or more persons belongs to them under common ownership. The property may be in common ownership with the determination of the share of each of the owners in the ownership right, i.e. shared ownership. If the shares are not determined by the heirs, the testator, the law, then they are assumed to be equal. An agreement between all heirs of shared ownership may establish the procedure for determining and changing their shares, depending on the contribution of each of them to the formation and increment of common property.

An heir to shared ownership who has carried out at his own expense, in compliance with the established procedure, the use of common property inseparable improvements to this property, has the right to a corresponding increase in its share in the right to common property. Separable Improvements common property, unless otherwise provided by an agreement between the heirs of shared ownership, become the property of the heir who produced them.

The disposal of property in shared ownership is carried out by agreement of all its members. An heir in case of shared ownership has the right, at his discretion, to sell, donate, bequeath, pledge his share or otherwise dispose of it in compliance with the rules provided for by the Civil Code of the Russian Federation in case of its paid alienation. The fruits, products and income from the use of property in shared ownership shall be included in the common property and distributed among the heirs who are participants in shared ownership in proportion to their shares, unless otherwise provided by an agreement between them.

44. Division of inheritance: general provisions and types

After the acceptance of the inheritance, if the testator did not agree on the shares of each heir, all property passes to the heirs on the basis of the right of common shared ownership. Each heir strives to achieve certainty in hereditary relations in order to know exactly what is due to him and in what amount. To this end, inheritance law provides division of property left by the testator after his death. The division of property can be carried out by a written agreement of the heirs or, if no agreement is reached between the heirs and there are various disputes on this legal relationship, in court. An heir who has the right to allocate his hereditary share from the total mass of inherited property, with the right to demand the allocation of his share in kind or payment by other heirs of a sum of money commensurate with his share in the inheritance, may apply to the court.

If the heirs have agreed on the division of property on their own, then they must conclude property division agreement. The conclusion of this agreement of heirs is aimed at the emergence, change or termination of the rights and obligations of the circle of heirs by law or by will. Based on this characteristic, the rules of the Civil Code of the Russian Federation on transactions, including contracts, apply to an agreement on the division of property. The agreement could be bilateral, and multilateral transaction, depending on the number of heirs called to inherit both by law and by will.

A special place is occupied by the agreement on the division of property associated with the division of real estate. This agreement on the division of property is subject to state registration on the basis of the Federal Law of July 21, 1997 No. 122-FZ "On State Registration of Rights to Real Estate and Transactions with It". On the basis of this agreement, changes should be made to the unified state register. On the basis of the above normative act, the refusal of state registration may be challenged in accordance with the norms of the Civil Procedure Code of the Russian Federation of November 14, 2002 No. 138-FZ (CPC RF). Since the agreement on the division of property is subject to mandatory registration, it must be made in writing.

If an agreement on the division of property between the heirs is not reached, then the division of property can be carried out by applying to the court in the manner of action proceedings.

Non-property rights that pass by way of inheritance cannot be shared property of heirs and cannot be subject to division.

If in the will the testator determined the shares of the inheritance of each heir, then in court they cannot be canceled or changed, since in this case a violation of the principles of inheritance law is assumed - the principle of protecting the interests of the testator and the principle of taking into account the will of the testator, both actual and intended.

45. Protection of the interests of persons in the division of inheritance

When dividing the inherited property, in order to prevent abuse by heirs, the state in the Civil Code of the Russian Federation provides for norms that protect the interests of persons who, due to their condition, are helpless and unable to defend their rights if there has been a violation. The law provides for the protection of the interests of an unborn child, as well as minors, incapacitated and partially capable citizens.

The law establishes that if at the time of the division of property there is conceived but unborn child, then the division of the inheritance must be postponed until his birth, whether he is born dead or alive. This norm of the Civil Code of the Russian Federation provides for the following situations: when a child is born alive or dead. If the child was born alive, then the division of the inherited property is carried out taking into account his interests.

When dividing property, if one of the heirs is newborn baby, the parents, adoptive parents, guardians of the child must be notified, and the body of guardianship and guardianship must also be notified. Sometimes the division of property is made without taking into account the interests of the child. In this case, an agreement on the division of property or a court decision that has entered into legal force on the division of property between the heirs shall be recognized as invalid. It does not matter when the agreement on the division of property is drawn up: before or after the birth of the child. If it was drawn up without taking into account his interests, then it is legally void.

If a dispute arises about the nullity of the agreement on the division of property due to non-observance of the interests of the child, then this fact must be confirmed by a valid by a court decision. This issue is being litigated in the manner of claim proceedings. The right to file a lawsuit in defense of the legally protected interests of the child has: guardianship and guardianship authorities, parents of the child, adoptive parents of the child, guardian. In the case when a child is born dead, the division of property is carried out according to the general rules.

The law also provides for norms that are designed to protect both underage children who have already been born, as well as incapacitated or partially capable citizens. In this case, children under the age of 18 are considered minors, regardless of whether they are married or emancipated. With regard to incapacitated and partially capable persons, a court decision must be made to recognize them as such. If during the division of inherited property there are persons of this category, then the law provides for the mandatory participation of parents (adoptive parents), guardians, as well as the guardianship and guardianship authority. Even if a minor citizen is married or emancipated, the presence of a guardianship and guardianship authority is mandatory.

46. Priority right in the division of inheritance

In addition to protecting the interests of socially unprotected segments of the population, the law also provides for preemptive right certain categories of persons:

1) the priority right to an indivisible thing in the division of property;

2) the preferential right to ordinary household items and household items in the division of property.

Indivisible a thing is recognized, the division of which is impossible without changing its purpose. When granting a priority right to an indivisible thing, when dividing property, the law distinguishes three groups of heirs:

1) persons who, together with the testator, had the right of common ownership of an indivisible thing, a share in the right to which is part of the inheritance. This category of heirs has a priority right to an indivisible thing on account of their hereditary share of the thing that was in common ownership, regardless of whether they used this thing or not;

2) heirs who constantly used an indivisible thing that is part of the inheritance. This category of heirs, when dividing the inheritance, has a priority right to receive this thing on account of their inheritance share over the heirs who did not use this thing and were not previously participants in the common ownership of it;

3) heirs claiming the preferential right to a dwelling.

The peculiarity of the last group is the indivisible thing itself - a dwelling (a residential building, an apartment, etc.), the division of which is impossible. In this case, the heirs who lived in this dwelling by the day of the opening of the inheritance and do not have any other dwelling, have, over other heirs who are not the owners of the dwelling that is part of the inheritance, the priority right to receive this dwelling on account of their inheritance shares. They have this pre-emptive right over other heirs who are not co-owners of this dwelling. This category of heirs has no preemptive right to the co-owners of the dwelling.

With regard to the priority right to items of ordinary home furnishings and household items in the division of property, it must be borne in mind that the question of which item should be included in the items of home furnishings is decided by court taking into account the particular circumstances of the case. It is also practiced to apply local customs in determining whether a given item is a household item. It should be noted that antique items, as well as items of artistic, historical or other value, can in no way be considered as household items, regardless of their intended purpose. In order to determine the value of an item, the court appoints an expert examination.

47. Inheritance of the rights of participants in economic and peasant partnerships, societies and cooperatives

This type of inheritance is subject of inheritance. It should be noted that the possibility of free transfer of the testator's rights by inheritance depends on the organizational and legal form of the legal entity. Business partnerships may take the form full partnership and partnership in faith.

The shares of both a general partnership and a limited partnership are included in the estate property. The possibility of transferring the share is determined by the decision of the general partners. When a share of a business partnership passes by inheritance, the right to participate in the affairs of the partnership also passes. In order to take part in the affairs of the partnership according to their share, the heir must be accepted by the general partners. Otherwise, general partners have the right to pay the share of the heir and not grant the right to take part in the implementation of the affairs of the partnership. Only citizens who have the status of an individual entrepreneur or legal entities that are not non-profit organizations can become heirs of a share in a partnership. This provision follows from the general norms of the Civil Code of the Russian Federation, which state that individual entrepreneurs and commercial organizations can be participants in partnerships. The status of a legal entity or an individual entrepreneur must be obtained by a person before the opening of the inheritance, otherwise it will not be attracted as an heir. It is not allowed to attract heirs who received the status after the opening of the inheritance before its acceptance.

These restrictions regarding the specific status of the heir are not entirely categorical. If among the heirs there are no individual entrepreneurs, commercial organizations, then this property is inherited by all heirs on the basis of common ownership. However, the law does not provide for a situation where the heirs are the circle of heirs. But it is customary to determine the shares of each heir according to the will or on the basis of the law.

Business companies act in the following forms:

1) joint-stock company;

2) a limited liability company;

3) company with additional liability.

The shares of this company pass to the heirs. Upon transition, the shares are divided among all heirs. The law may establish restrictions on the accumulation of shares in one hand. In the event of this situation, the company obliges the heir to alienate excess shares. Unless otherwise provided by the charter of the company, the shares of the testator are freely transferred to the heirs.

When inheriting a share in a production cooperative, no special questions arise. Heirs may be accepted unconditionally into a production cooperative or receive compensation for their share, unless otherwise provided by the charter of the cooperative.

48. Inheritance of rights associated with participation in a consumer cooperative

According to the general provisions of the Civil Code of the Russian Federation, a production cooperative is commercial organization. The difference between a production cooperative and other commercial organizations is the purpose of creating this organization. All commercial organizations are created for the purpose of making a profit, meeting the material and other needs of the participants in a production cooperative.

Production cooperative - this 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 its members with property shares. According to the above, the inheritance may include a property share contribution of the testator, the amount of which is determined by the charter of the production cooperative. Allocate several types of production cooperatives: housing cooperatives, consumer societies, horticultural cooperatives, horticultural cooperatives and other types of cooperatives. In accordance with the norms of the Civil Code of the Russian Federation, members of a production cooperative cannot refuse to accept an heir as a member of a production cooperative.

To determine the rights and obligations of participants in production cooperatives, it is also necessary to analyze the norms of the Law of the Russian Federation of June 19, 1992 No. 3085-I "On consumer cooperation (consumer societies, their unions) in the Russian Federation." According to the provisions of the Law, in the event of the death of a member of a cooperative, his heirs may be admitted to a consumer society, unless otherwise provided by the charter. This provision of the Law is contrary to the provisions of the Civil Code of the Russian Federation. The Civil Code was adopted later than the Law. The norm of the introductory law of the Civil Code of the Russian Federation provides for the possibility of conflict between one law and another and states that other laws are applied in the part that does not contradict the Civil Code of the Russian Federation. And, therefore, it is not allowed to refuse to accept heirs as participants in a production cooperative of a deceased member of the cooperative.

If a share is inherited by several heirs at once, then the decision on which of the heirs can be accepted as a member of a consumer cooperative is determined in accordance with the legislation on consumer cooperatives, as well as the constituent documents of the respective cooperatives. If the heir does not want to join the cooperative, he has the right to demand monetary compensation for the inheritance share due to him. The method and terms of monetary compensation are also determined by the legislation on production cooperatives and the constituent documents of the respective cooperative.

If there are disputable legal relations between the members of the production cooperative and the heir (heirs), they can be resolved in court.

The division of the hereditary share is carried out in a certain proportion between the heirs, and in case of disproportionate property received by inheritance of the hereditary share, other heirs must be paid appropriate compensation.

49. Inheritance of the enterprise

In this type of inheritance, a special position is occupied by inheritance object - an enterprise as a complex of property. According to the norms of the Civil Code of the Russian Federation company - a property complex used for business activities.

The structure of the enterprise as a property complex includes all types of property, intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, works, services and other exclusive rights, unless otherwise provided law or contract.

When inheriting an enterprise as a property complex, a priority right is established to receive a hereditary share in the form of an enterprise to an heir having the status an individual entrepreneur, or commercial organization. Non-profit organizations cannot inherit an enterprise.

main goal when inheriting an enterprise, it is to develop it as a complex and make a profit, which is contrary to the goals of a non-profit organization. Therefore, the non-profit organization is excluded from the list of heirs by law. When there are no individual entrepreneurs among the heirs and no legal entity is indicated in the will, the enterprise passes to the heirs in common shared ownership.

The heirs independently determine the due shares through conclusion of an agreement, if the shares were not specified in the will.

If the heirs do not come to an agreement, the share of each heir may be determined in accordance with the law in a judicial proceeding. The law does not regulate the issue of the inheritance of an enterprise when it is distributed among several heirs who have a pre-emptive right. In this case, the enterprise passes to this category of heirs on the basis of the right of common shared ownership and is divided between them accordingly. Each of the heirs has the right to allocate his share for the implementation of the investigation and other actions with it, or for the cost compensation of the share due to him.

Sometimes several enterprises are inherited at once, which are also subject to the pre-emptive right of heirs with the status of an individual entrepreneur or legal entities. In this case, it is possible to divide the inheritance property in such a way that each heir with the pre-emptive right gets the enterprise. If the implementation of such a division of property is impossible, then all enterprises pass to the primary heirs on the basis of the right of common shared ownership.

50. Inheritance of limited transferable things

Inheritance of limited transferable things is new in the Civil Code of the Russian Federation. Inheritance of limited transferable things is possible both on the basis of a will and on the basis of a law. Thus, things limited in circulation can be part of the hereditary mass. For limited circulation items include things that may belong to the testator on the right of ownership if there is permission for their storage, use. The Civil Code of the Russian Federation stipulates a number of objects restricted in circulation that may be included in the hereditary mass: weapons, potent and poisonous substances, narcotic and psychotropic substances.

So the heirs, in order to receive a thing limited in civil circulation, must also have a permit, in other words, a license. For example, the Federal Law of December 13, 1996 No. 150-FZ "On Weapons" establishes that the right to weapons must be confirmed by the presence licenses.

Only certain types of weapons can be owned by a citizen. Service weapons cannot be part of the inheritance. Also, personalized weapons donated as a reward cannot be part of the inheritance. This weapon is returned after the death of the person awarded it.

Weapons must be registered in the internal affairs bodies at the place of residence, and a license must be issued for its storage and carrying. A weapon can be inherited by an heir who has reached the age of majority, i.e. 18 years old, except in cases of emancipation and marriage. Narcotic substances and psychotropic substances include substances of synthetic or natural origin, preparations and plants. List of narcotic drugs and psychotropic substances and their precursors in accordance with the legislation of the Russian Federation, international treaties. A normative act of an international nature is the Single Convention on Narcotic Drugs of March 30, 1961, which was recognized by the USSR in 1964. The circulation of narcotic drugs and psychotropic substances is subject to strict control by the state.

No permission is required to include limited transferable things in the composition of the inheritance property, only permission is required for the heir when accepting this particular thing as an inheritance.

The notary is entrusted with the obligation to take measures for the protection of hereditary property. In the process of inventory of hereditary property, limited transferable things can be found, which are transferred according to a separate inventory to a representative of the internal affairs bodies. If it is impossible to conduct an inventory (refusal of heirs, there are obstacles), the notary, if there is information about these things, must also inform the internal affairs bodies.

If it is impossible to accept these things by way of inheritance, the property must be alienated within a year, and the funds from the sale of property, minus the costs of its sale, are transferred to the heir.

51. Inheritance of land

Land inheritance is made in accordance with the norms of the Civil Code of the Russian Federation and the Land Code of the Russian Federation, which in turn establishes the norms and rules of inheritance in relation to each type of hereditary land plot. Despite the fact that the Civil Code of the Russian Federation establishes a general procedure for the inheritance of land plots, land plots can be transferred by right of inheritance only to the extent that this is enshrined in law. Special norms for the inheritance of land plots are enshrined in the Land Code of the Russian Federation. Therefore, the application of the norms of the Labor Code of the Russian Federation is necessary for inheritance, including the division of a land plot.

To accept a land plot on the basis of inheritance, no additional permits are required, except for granting the right to inherit. The Land Code of the Russian Federation states that there are land plots restricted in civil circulation and withdrawn from civil circulation. Land plots cannot be provided for ownership if they have the status of being restricted in civil circulation or withdrawn from it. In relation to these types of land plots, various types of transactions cannot be carried out. The list of land plots withdrawn from circulation and limited in civil circulation is indicated in the Land Code of the Russian Federation.

Inheritance may include land, owned or under the right of lifetime inheritable possession. When inheriting a land plot or the right of lifetime inheritable possession of a land plot, the surface (soil) layer, confined water bodies, forests and plants located within the boundaries of this land plot also pass by inheritance.

Despite the fact that the norms of the Civil Code of the Russian Federation establish a general procedure for the inheritance of land plots, the Labor Code of the Russian Federation establishes restrictions on the subject of inheritance. Foreign citizens, stateless persons, foreign legal entities cannot possess land plots on the right of ownership of certain types of land plots, including agricultural land.

If several heirs are called to inherit, then the land plot passes to them on the basis of common shared ownership. The division of the land plot is carried out taking into account the minimum size of the land plot.

The minimum size of a land plot is established by the laws of the constituent entities of the Russian Federation. With regard to land plots provided for personal subsidiary farming and individual housing construction, the norms are established by regulatory legal acts of local governments. If it is impossible to divide a land plot without losing its designated purpose, a pre-emptive right of the heir is established, to whom the land plot will pass in the order of inheritance at the expense of the hereditary share due to him. In the event that none of the heirs has a priority right to receive a land plot, the possession, use and disposal of the land plot is carried out by all heirs on the basis of common shared ownership.

52. Inheritance of property of a member of a peasant (farm) economy

The Civil Code provides that a citizen has the right to engage in entrepreneurial activities without forming a legal entity, but must necessarily register as individual entrepreneur. In order for the head of a peasant (farm) economy to carry out his activities, he does not need to register as a legal entity, he receives the status of an individual entrepreneur from the moment of state registration of the peasant (farm) economy. All property of the farm belongs to its members on the right of joint ownership, unless otherwise provided by law or contract. If the share of a member of the economy is determined and allocated, then it is alienated as being in common shared ownership.

The inheritance property includes only

the property that belonged to a member of the economy. The land plot and the means of production belonging to a peasant (farm) enterprise shall not be subject to division upon withdrawal of one of its members from the enterprise. If the heir of the deceased member of the farm is not a member of the farm, he has the right to receive a proportionate share of his monetary compensation.

Deadline for payment of compensation determined by agreement of the heir with the members of the economy. If an agreement between the heir and the members of the household is not reached, then the period is determined by the court, and it should not exceed 1 year. If the law or the agreement does not provide for the amount of the share due, then the share of the heir is recognized as equal to the shares of other members of the peasant (farm) economy. The heir can also join the household. To do this, he must submit a written application for consideration by other members of the economy. Only after their consent does the heir have the right to enter the household. In this case, monetary compensation of the share due to him is not made.

If several heirs are called to inherit, then the inheritance share of the testator passes to them into common shared ownership.

If, with the death of the testator, the peasant (farmer) economy ceases to exist due to the fact that the testator was the only member, then the economy passes into common shared property of heirs, who, in turn, by concluding an agreement, can determine the shares of the property due to them. If an agreement has not been reached, then the division of property can be carried out judicially. In this case, the land is also subject to division. The division of the land plot is carried out taking into account the minimum size of the plot established for the plots of the corresponding purpose. In the event that it is impossible to divide the land plot in accordance with the norms of the legislation, the pre-emptive right of the heir is established, who will get the land plot on account of his hereditary share.

53. Inheritance of unpaid amounts and property provided to the testator on preferential terms

The composition of the inheritance may also include amounts of money that the testator could not receive during his lifetime. In the order of inheritance, the heirs are also given the right to demand payment of sums of money not received by the testator. This is one of the features universal succession. The right to receive unpaid amounts refers to a subjective right that can be transferred by inheritance. However, the inheritance of such rights is carried out in accordance with special rules that provide for the conditions of inheritance. The right to receive unpaid amounts belongs only to heirs who lived with the deceased, i.e., members of his family, as well as his disabled dependents regardless of whether they lived together with the deceased or not. The reason why the sums of money may not be received is not specifically established by law.

In the order of succession, the following types of payments can be received:

1) salary and equivalent payments;

2) pensions, scholarships;

3) social insurance benefits;

4) money as a result of compensation for the harm caused to life or health;

5) alimony.

The law establishes the period during which claims for the payment of these amounts of money can be made. This period differs from the period of acceptance of the inheritance and is 4 months. The term begins to run from the day the inheritance is opened.

The receipt of unpaid amounts provided to a citizen as a means of subsistence by a certain category of persons (members of the family of a deceased citizen) is not a basis for refusing to pay them in the absence of such persons. By indicating such persons, the norms of the Civil Code of the Russian Federation establish a pre-emptive right to receive unpaid amounts intended for a deceased citizen. If none of the listed persons takes advantage of the pre-emptive right to receive unpaid amounts or a claim is made on time for the payment of unpaid amounts, then the corresponding amount is included in the inheritance and inherited by all heirs on the general basis provided for in the Civil Code of the Russian Federation.

Sometimes several heirs have the preferential right to inherit unpaid amounts. Each heir who lived with the deceased citizen, as well as a disabled dependent who does not live with him, has the priority right to present such claims. The unpaid amount is paid to applicants who applied within the time limits specified by law. The amount paid goes into the common shared property of the heirs and is divided in accordance with the general provisions for the division of the common shared property.

Deadline for submitting claims on the payment of funds due to the deceased citizen, is procedural and subject to restoration.

54. General provisions of the inheritance process

If it is impossible to resolve issues related to inheritance legal relations peacefully, the heirs and their representatives resort to the help of the court. Through court proceedings, various kinds of issues can be resolved. The resolution of questions of inheritance legal relations is carried out in civil litigation.

The Civil Procedure Code of the Russian Federation establishes the rules and procedure for resolving various disputes, including disputes related to inheritance legal relations. A dispute about inheritance legal relations can arise not only between heirs, creditors and heirs, but also follow from public legal relations, i.e. have public character. Thus, litigation on arisen inheritance legal relations can arise in the order of action, special proceedings, as well as proceedings in cases arising from public legal relations.

One of the parties in the process of legal proceedings may be a foreign person.

The judgment rendered by the judge will be binding on its execution. When deciding on the application of the type of civil proceedings in resolving an inheritance dispute between the parties, the court will proceed from what is a feature of considering a particular disputed legal relationship in the field of inheritance law. In accordance with the norms of the Civil Code of the Russian Federation, the statute of limitations is applied to inheritance legal relations, which, as a general rule, are 3 years. The law provides that other statutes of limitation may be established by normative acts.

The basis for initiating proceedings in a case arising from inheritance legal relations is statement of claim (in case of initiation of a lawsuit), statement (in case of initiation of special proceedings or proceedings in cases arising from public legal relations). The statement of claim and the statement are subject to the same requirements regarding the composition and content.

Claim proceedings it is possible if there is a dispute about the right between the heirs, as well as when creditors claim against the heirs in relation to the inherited property, it is impossible to reach an agreement on the division of property, etc.

special production possible, if it is necessary to establish a fact of legal significance. For example, it is necessary to establish the fact of paternity in order to be able to obtain a certificate for the right to inherit and accept the inheritance.

Proceedings in cases arising from public legal relations, it is possible in the event of the adoption of a normative act in the field of inheritance legal relations by a person authorized for this action, which violates the rights of an indefinite circle of persons.

55. Subjects and evidence in cases arising from inheritance legal relations

Subject in cases arising from inheritance legal relations, determined according to the type of civil proceedings necessary to resolve the issue in the field of inheritance law. If there is a dispute about the right, the trial will be considered in the order of action proceedings.

According to the provisions of the Code of Civil Procedure of the Russian Federation, the parties in the proceedings are the plaintiff and the defendant. Claimant- the person whose right has been violated, and defendant - a person who is responsible in essence of the claim presented by the plaintiff. The burden of proof in this case rests with the plaintiff. The plaintiff must prove that his subjective right has been violated by the defendant. However, if there are good reasons to believe that the defendant is at fault, the defendant should not wait for other facts to be proven, since silence on the part of the defendant will be considered as agreement with the evidence presented.

By the plaintiff heirs, creditors, whose right has been violated, may act in the proceedings.

By the respondent heirs, as well as persons to whom a statement of claim is directed, may also act.

In a special proceeding, the parties are applicant and interested person. In these proceedings, the burden of proof lies with the applicant. He needs to prove the existence of a fact that is of legal significance for the implementation of subsequent actions, i.e., to establish the fact of paternity, the testimony of witnesses about the fact that the parents live together is necessary, it is possible to conduct an examination, which is appointed at the expense of the applicant.

by the applicant, as a rule, the heirs who need to establish this or that fact act.

Interested party may be civil registry offices (ZAGS), notaries, etc.

Proceedings in cases arising from public legal relations have their own distinctive features:

1) despite the fact that the parties are also the applicant and the person concerned, the applicant is a citizen whose right has been violated or disputed;

2) an official who adopted a normative act, through which the subjective right of a citizen was violated, acts as an interested person;

3) the burden of proof lies with the person concerned, even if the applicant has waived the claims.

The official is obliged to prove that the issued normative act does not violate the rights of citizens, otherwise it will be declared invalid by the court. If the normative act does not violate the subjective rights of citizens, then the applicant is denied the satisfaction of the stated requirements. Since there is a principle of prejudice in civil proceedings, another applicant does not have the right to reapply to the court with the same requirements.

56. Inheritance law in the USA and Europe

In the Russian Federation, in European countries and in the USA, the basis for the occurrence of hereditary succession is either will, or law. The inheritance law of continental Europe differs from the law of England and the USA; in different states of the USA, inheritance law is also different - in some states it approaches the law of England, in other states - to the law of France, etc.

The very concept of a will in the Russian Federation and other countries is the same, but since will is a unilateral transaction, the procedure for concluding this transaction is different in different countries.

In the Russian Federation, a will can only be from one person. Other countries may joint wills: in Germany, a joint will of spouses is possible, in England and the USA joint wills are also possible, and not only spouses, but also other persons, and there are also possible mutual wills, when several persons assume mutual obligations.

At the same time, in France, as in the Russian Federation, the law expressly prohibits joint and mutual wills.

In some countries there is also succession agreement, when the testator and heirs enter into an agreement regarding the inherited property. This agreement comes into force from the moment of signing and cannot be terminated unilaterally.

Age, from which a citizen has the right to make a will, also different in different countries - usually it is 18 years old, but it can be from 16 years old. In England, the rule has been preserved, according to which sailors can make a will from the age of 14.

The laws of different countries impose different requirements for the content of a will - in the Russian Federation, at present, in a will only orders regarding the property of the testator are possible, in other countries it is also possible to make non-property orders, for example, on the appointment of a guardian, on the recognition of an illegitimate child, etc.

Cancellation Forms in different countries coincide with the forms provided for in the Russian Federation. In England and the USA, a will is automatically annulled due to a change in marital status, i.e., marriage and divorce.

European legislation also provides for compulsory share for family members, and this issue is solved in a very diverse way. In France there is a concept free share - this is the share available to the owner for testamentary dispositions and lifetime gifts, the rest of the property is subject to distribution among the close relatives of the testator (children and parents). The size of the free share depends on the number of children the testator has - the more children, the smaller the size of this share, the more property remains for the children. A similar approach to the compulsory share is also in Switzerland, however, there the surviving spouse, brothers and sisters of the testator also have the right to a mandatory share.

In England, there is no concept of a mandatory share: the surviving spouse, as well as the former spouse who has not remarried, and the children of the testator, including illegitimate ones, are entitled to receive "reasonable maintenance" from the estate.

Author: Gushchina K.O.

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ Normal human anatomy. Lecture notes

▪ Regional studies. Lecture notes

▪ Russian literature of the XNUMXth century in brief. Crib

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

Artificial leather for touch emulation 15.04.2024

In a modern technology world where distance is becoming increasingly commonplace, maintaining connection and a sense of closeness is important. Recent developments in artificial skin by German scientists from Saarland University represent a new era in virtual interactions. German researchers from Saarland University have developed ultra-thin films that can transmit the sensation of touch over a distance. This cutting-edge technology provides new opportunities for virtual communication, especially for those who find themselves far from their loved ones. The ultra-thin films developed by the researchers, just 50 micrometers thick, can be integrated into textiles and worn like a second skin. These films act as sensors that recognize tactile signals from mom or dad, and as actuators that transmit these movements to the baby. Parents' touch to the fabric activates sensors that react to pressure and deform the ultra-thin film. This ... >>

Petgugu Global cat litter 15.04.2024

Taking care of pets can often be a challenge, especially when it comes to keeping your home clean. A new interesting solution from the Petgugu Global startup has been presented, which will make life easier for cat owners and help them keep their home perfectly clean and tidy. Startup Petgugu Global has unveiled a unique cat toilet that can automatically flush feces, keeping your home clean and fresh. This innovative device is equipped with various smart sensors that monitor your pet's toilet activity and activate to automatically clean after use. The device connects to the sewer system and ensures efficient waste removal without the need for intervention from the owner. Additionally, the toilet has a large flushable storage capacity, making it ideal for multi-cat households. The Petgugu cat litter bowl is designed for use with water-soluble litters and offers a range of additional ... >>

The attractiveness of caring men 14.04.2024

The stereotype that women prefer "bad boys" has long been widespread. However, recent research conducted by British scientists from Monash University offers a new perspective on this issue. They looked at how women responded to men's emotional responsibility and willingness to help others. The study's findings could change our understanding of what makes men attractive to women. A study conducted by scientists from Monash University leads to new findings about men's attractiveness to women. In the experiment, women were shown photographs of men with brief stories about their behavior in various situations, including their reaction to an encounter with a homeless person. Some of the men ignored the homeless man, while others helped him, such as buying him food. A study found that men who showed empathy and kindness were more attractive to women compared to men who showed empathy and kindness. ... >>

Random news from the Archive

Flash 11: browser games will not yield to console games 24.11.2011

Adobe is finishing work on the next version of the Flash platform. The company says it has new tools that allow developers to create "console-quality" browser games with hardware-accelerated 2D and 3D graphics.

The new engine will be able to animate millions of objects at a refresh rate of 50 fps. At the same time, the quality of the textures will be no worse than the samples released on PS3 and Xbox 360.

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ section of the site Consumer Electronics. Selection of articles

▪ Carl Sagan article. Famous aphorisms

▪ article Which republics are separated only by a river and 2 hours of time difference? Detailed answer

▪ article Chistets forest. Legends, cultivation, methods of application

▪ article Completion of wind turbines. Encyclopedia of radio electronics and electrical engineering

▪ article Integrated switches: parameters, application. Encyclopedia of radio electronics and electrical engineering

Leave your comment on this article:

Comments on the article:

Helen Badchen
Great!!! Great help for students of universities and colleges! A huge THANK YOU! [up]

All languages of this page

Home page | Library | Articles | Website map | Site Reviews