Advocacy and notary office. Registration of inheritance rights (lecture notes)

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Advocacy and notary office. Registration of inheritance rights (lecture notes)

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LECTURE No. 26. Registration of inheritance rights

1. Issuance of a certificate of inheritance

A notary who has received a message about an opened inheritance is obliged to notify about this those heirs whose place of residence or work is known to him. According to Art. 1116 of the Civil Code of the Russian Federation, citizens who are alive on the day of opening the inheritance, as well as those conceived during the life of the testator and born alive after the opening of the inheritance can be called upon to inherit. The notary may also call the heirs by placing a public notice or a message in the media.

The inheritance opens with the death of a citizen, and declaring a citizen dead by the court entails the same legal consequences as the death of a citizen. The day of opening of the inheritance is the day of the citizen’s death. When a citizen is declared dead, the day of opening of the inheritance is the day the court decision to declare the citizen dead comes into force.

Place of opening of inheritance is the last place of residence of the decedent. If it is unknown or located outside the Russian Federation, then the location of the property in the Russian Federation will be considered the place of opening of the inheritance. If the hereditary property is located in different places, the place of its discovery shall be the location of the immovable property included in the inheritance or the most valuable part of the property.

Inheritance certificate issued at the place of opening of the inheritance by a notary or an official authorized in accordance with the law to perform such notarial action. At the place of opening of the inheritance, the notary accepts an application for acceptance of the inheritance both by will and by law. The application must be made in writing.

The certificate of the right to inheritance is issued at the request of the heir. At the request of the heirs, a certificate may be issued to all heirs together or to each heir separately, for all of the inheritance property as a whole or for its separate parts.

As a rule, a certificate of inheritance is issued to heirs at any time after 6 months from the date of opening of the inheritance. However, the certificate may also be issued earlier than the specified period, if there is reliable evidence that, apart from the persons who applied for the issuance of the certificate, there are no other heirs entitled to the inheritance or its corresponding part.

If the heir has submitted all the documents necessary for issuing a certificate of the right to inheritance and paid the state fee, at his request the certificate can be sent to him by mail, in this case his personal appearance is not mandatory. Such a request is expressed in a separate application of the heir or in the inscription on his application for acceptance of the inheritance.

To issue a certificate of the right to inheritance, documents confirming the time and place of the opening of the inheritance, marriage, family or other relations with the testator must be submitted to the notary's office. If inheritance is carried out by will, then a copy of the will must be provided.

Each of the heirs who accepted the inheritance, having submitted all the documents necessary for issuing a certificate of the right to inheritance, has the right to demand a certificate for the share due to him, without waiting for other heirs to wish to receive a certificate.

According to the provisions of the Order of the Ministry of Justice of the Russian Federation dated April 10, 2002 No. 99. "On approval of the Register Forms for the registration of notarial acts, notarial certificates and authentication inscriptions on transactions and evidenced documents", a certificate of inheritance must contain the following information:

1) surname, initials of the notary;

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

3) grounds for inheritance;

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

5) shares of heirs in the inheritance;

6) the name of the hereditary property, its characteristics, location and valuation;

7) the number of the inheritance file;

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

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

10) seal and signature of a notary.

When issuing a certificate of the right to inheritance to minor heirs, the notary is obliged to send a copy of the certificate of the right to inheritance to the guardianship and guardianship authorities to control the disposal of property.

In accordance with paragraph 3 of Art. 1163 of the Civil Code of the Russian Federation, the issuance of a certificate of the right to inheritance can be suspended in two cases:

1) by a court decision;

2) in the presence of a conceived but not yet born heir.

The notary at the place of opening of the inheritance is authorized to accept claims from the testator's creditors, which must be presented in writing.

Prior to acceptance of the inheritance, creditors' claims may be brought against the executor of the will or against the estate. Each of the heirs who accepted the inheritance is liable for the debts of the testator within the value of the inherited property that has passed to him.

2. Protection of hereditary property

In order to protect the rights of heirs, legatees, creditors or the state, if necessary, in order to eliminate the possibility of damage, destruction or theft of hereditary property, the notary at the place of opening of the inheritance upon notification of citizens (heirs, executor of the will), legal entities or on his own initiative has the right to take measures to the protection of hereditary property.

Messages received by the notary's office are registered in the register of applications for taking measures to protect hereditary property on the day they are received. According to such statements, inheritance cases are opened by a notary, if they have not yet been opened.

In order to protect the inheritance, the notary must produce inventory of the estate with two witnesses. The notary has the right to describe the property, provided that the persons living together with the testator voluntarily submit the property to the inventory. If they object to the inventory, the notary draws up an act of refusal to submit the property to the inventory and notifies the heirs about this, explaining to them the right to apply to the court with a claim for the recovery of their share of the inheritance property due to them. During the production of an inventory of property, the executor of the will, heirs and, in appropriate cases, representatives of the body of guardianship and guardianship may be present.

In order to identify the composition of the inheritance and its protection, the notary has the right to request banks and other credit organizations about the funds, currency and other valuables that belonged to the testator on their deposits, accounts or in storage.

Measures for the protection of hereditary property and its management are carried out within a period determined by the notary, taking into account the nature and value of the inheritance and the time required for the heirs to enter into the inheritance, but not more than within 6 months. This period may be extended for another 3 months in case of refusal of the heir from the inheritance, non-acceptance of the inheritance by another heir or in case of transfer of the right to accept the inheritance.

If the hereditary property is located in several places, the notary at the place of opening of the inheritance sends through the justice authorities to the notary or an official authorized to perform notarial acts at the location of the relevant part of the hereditary property, a binding order for the protection of this property or management of it. The notary at the location of the property, who has received an instruction from the notary at the place of opening of the inheritance to take measures to protect the inheritance property, registers this instruction in the register of applications for taking measures to protect the inheritance property. But the inheritance case is not started by this notary.

Decree of the Government of the Russian Federation of May 27, 2002 No. 350 "On approval of the maximum amount of remuneration under an agreement for the storage of hereditary property and an agreement for the trust management of hereditary property" establishes that the maximum amount of remuneration under an agreement for the storage of hereditary property and an agreement for the trust management of hereditary property cannot exceed 3 % of the assessed value of the estate.

The property included in the inheritance, with the exception of cash, currency valuables, precious metals and stones, products made from them, securities that do not require management, may be transferred by a notary under an agreement for storage to one of the heirs. On the transfer of property for storage an entry is made in the act of inventory and a signature is taken from the person who accepted the property for storage, about the warning made to him about criminal and material liability for embezzlement, alienation or concealment of hereditary property and losses incurred. The cash included in the inheritance is deposited with a notary, and currency values, precious metals and stones, products made from them and securities that do not require management are transferred to the bank for safekeeping. Weapons and explosives found in the property of the deceased are handed over to the internal affairs bodies according to a special inventory.

State awards, which are subject to the legislation of the Russian Federation, are not included in the inheritance; they are left or transferred to their families for storage as a memory. Valuable manuscripts, literary works, letters of historical or scientific significance are included in the inventory act and transferred to the heirs for safekeeping.

If the inheritance contains property that requires management, as well as in the event of a claim by the creditors of the testator before the inheritance is accepted by the heirs, the notary shall appoint a custodian of the inheritance property, who will receive remuneration from the heirs for the storage of the inheritance property.

Author: Nevskaya M.A.

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