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Lecture notes, cheat sheets
Civil law. A special part. Institute of Inheritance Law (most important)
Directory / Lecture notes, cheat sheets Table of contents (expand) II. INHERITANCE LAW Topic 22. INSTITUTE OF INHERITANCE LAW 22.1. General Provisions on Inheritance Inheritance is understood as the transfer of property and some personal non-property rights and obligations of a deceased citizen (testator) to other persons (heirs) in the manner prescribed by law. Upon inheritance, the property of the deceased passes to other persons in the order of universal succession. This means, firstly, that the property passes unchanged as a whole, and secondly, that it passes to the heirs at the same time (paragraph 1 of article 1110 of the Civil Code). Accordingly, it is impossible in the order of inheritance to accept some rights, and to refuse others. That is why the heir, who has accepted some separate right, is considered to have automatically accepted all the other rights of the deceased, known and unknown to him. It is necessary to distinguish between the right of inheritance in the objective and subjective sense. In an objective sense, it is a set of rules governing relations regarding the transfer of the rights and obligations of a deceased citizen to other persons. It is in this capacity that inheritance law acts as a legal institution that is part of civil law. In a subjective sense, the right to inherit means the right of a person to be called to inherit, as well as his powers after accepting the inheritance. According to Art. 1112 of the Civil Code, the composition of the inheritance includes things belonging to the testator on the day the inheritance was opened, other property, including property rights and obligations. During inheritance, not only the rights, but also the obligations of the testator, and, consequently, his debts, pass to the heirs. However, the heir who has accepted the inheritance bears limited liability for the debts of the testator: he is liable only to the extent of the value of the inherited property that has passed to him (paragraph 2, clause 1, article 1175 of the Civil Code). The opening of an inheritance is the emergence of a hereditary legal relationship. The legal facts, or grounds leading to the opening of an inheritance, are the death of a citizen and the declaration by the court of a citizen as dead (Article 1113 of the Civil Code). The opening of an inheritance always takes place at a certain time and in a certain place, which has a very important legal significance. The time of opening the inheritance is the day of death of the testator, and when declaring him dead, the day when the court decision on declaring this citizen dead comes into force. In the case when, in accordance with paragraph 3 of Art. 45 of the Civil Code, the day of death of a citizen is recognized as the day of his alleged death, the time of opening the inheritance is the day of death indicated in the court decision (paragraph 1 of article 1114 of the Civil Code). Citizens who die on the same day are considered, for the purposes of hereditary succession, to have died at the same time and do not inherit from each other. At the same time, the heirs of each of them are called to inherit (paragraph 2 of article 1113 of the Civil Code). The place of opening of the inheritance is the last place of residence of the testator, determined according to the rules of Art. 20 GK. If the last place of residence of the testator who owned property on the territory of the Russian Federation is unknown or is located outside its borders, the place of opening of the inheritance in the Russian Federation is the location of such inherited property. If the latter is located in different places, the place of opening of the inheritance is the location of the immovable property or the most valuable part of this property included in it, and in the absence of immovable property - the location of the movable property or its most valuable part. The value of property is determined based on its market value (Article 1115 of the Civil Code). The subjects of hereditary succession are the testator and heirs. The testator is a person whose rights and obligations after his death are transferred to other persons (heirs). Russian and foreign citizens, as well as stateless persons residing on the territory of the Russian Federation, can be testators. Legal entities cannot leave inheritances. Heirs - the persons specified in the will or the law as legal successors of the testator. Any subject of civil law can inherit: a citizen, a legal entity, a public legal entity. Citizens and the state (Russian Federation) can be heirs both by law and by will. Legal entities, subjects of the Russian Federation, municipalities, foreign states and international organizations can act as heirs only if a will is drawn up in their favor. Citizens who are alive on the day of the opening of the inheritance, as well as those conceived during the life of the testator and born alive after the opening of the inheritance (paragraph 1, clause 1, article 1116 of the Civil Code) can be called to inherit both by law and by will. The law deprives unworthy heirs of the right to receive an inheritance (Article 1117 of the Civil Code). So, citizens do not inherit either by law or by will, who, by their deliberate illegal actions directed against the testator, one of his heirs or against the implementation of the last will of the testator, expressed in the will, contributed or tried to contribute to the calling of themselves or other persons to inheritance or contributed or tried to contribute to an increase in the share of the inheritance due to them or other persons, if these circumstances are confirmed in court. However, citizens to whom the testator bequeathed property after their loss of the right to inherit, have the right to inherit this property. Parents do not inherit by law after children in respect of whom they were deprived of parental rights in a judicial proceeding and were not restored in these rights by the day the inheritance was opened. At the request of the interested person, the court may remove from inheritance under the law citizens who maliciously evaded the fulfillment of their obligations under the law to support the testator. The above rules also apply to heirs who have the right to a mandatory share in the inheritance. They also apply to a legacy (Article 1137 of the Civil Code). Legal entities can be heirs only by will. In addition, they can receive property from heirs who have renounced the inheritance specifically in favor of a legal entity. The legal entities indicated in it, existing on the day of the opening of the inheritance (paragraph 2, clause 1, article 1116 of the Civil Code), may be called upon to inherit by will. Inherited property passes to the state if it is bequeathed to it, and also if this property is escheated. Cases of recognition of property as escheat are determined by law (clause 1 of article 1151 of the Civil Code). The Russian Federation acts as the subject of the right to inherit bequeathed to the state and escheated property. However, in the future, it is possible to transfer the property received by way of inheritance into the ownership of subjects of the Russian Federation or municipalities (clause 3 of article 1151 of the Civil Code). 22.2. testamentary succession According to the norm of paragraph 1 of Art. 1111 of the Civil Code, inheritance can be carried out both by will and by law. At present, priority is given to inheritance by will, since it is more in line with the conditions of a market economy, which implies maximum freedom for citizens to dispose of their property rights. A will is a personal order of a citizen in the event of death, which determines the further ownership of his property, made in the form prescribed by law. A will is the only acceptable form of disposing of property in case of death (clause 1, article 1118 of the Civil Code). By its legal nature, it is a unilateral transaction that creates rights and obligations after the opening of the inheritance (paragraph 5 of article 1118 of the Civil Code). A will must be an expression of the personal will of the testator, since it is directly related to his personality. Making a will through a representative is not allowed. A will may contain the orders of only one citizen. Making a will by two or more citizens is not allowed (clauses 3 and 4 of article 1118 of the Civil Code). A will can only be made by a citizen who at the time of its making has full legal capacity (paragraph 2 of article 1118 of the Civil Code). The law establishes the freedom of will. According to Art. 1119 of the Civil Code, the testator has the right, at his discretion, to bequeath property to any persons, to determine the shares of heirs in the inheritance in any way, to deprive one, several or all heirs of the inheritance by law, without indicating the reasons for such deprivation, and in cases provided for by the Civil Code, to include other orders in the will. The testator has the right to cancel or change the perfect will in accordance with the rules of Art. 1130 GK. The freedom of will is limited only by the rules on the mandatory share in the inheritance (Article 1149 of the Civil Code). The testator is not obliged to inform anyone about the content, execution, modification or cancellation of the will. The testator has the right to make a will containing an order for any property, including that which he may acquire in the future. The testator can dispose of his property or part of it by making one or more wills (Article 1120 of the Civil Code). The testator may make a will in favor of one or more persons, both included and not included in the circle of heirs by law. The law also provides for the possibility of sub-appointing an heir, i.e. instructions in the will of another heir by the testator in case the heir appointed by him in the will or the heir of the testator by law does not accept the inheritance for any reason or refuses it, and also if he does not receive the inheritance as an unworthy heir (Article 1121 of the Civil Code). As a general rule, a will must be made in a notarial form. At the same time, a will can be certified both by a notary and by persons who, in appropriate cases, have been granted the right to perform notarial acts: officials of local governments and officials of consular institutions of the Russian Federation (paragraph 1, clause 1, article 1124, clause 7, article 1125 GK). Wills of certain categories of citizens (who are being treated in medical institutions, on ships during navigation, etc.) certified by the persons specified in paragraph 1 of Art. 1127 GK. Very important for the validity of the will is the observance of the rules for its execution, which is currently regulated in detail by the Civil Code. A notarized will must be written by the testator or recorded from his words by a notary. When writing or recording a will, technical means (electronic computer, typewriter, etc.) may be used. A will written by a notary from the words of the testator, before signing it, must be fully read by the testator in the presence of a notary. If the testator is not able to personally read the will, its text 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 personally read the will. The will must be personally signed by the testator. If the testator, due to physical disabilities, serious illness or illiteracy, cannot sign the will with his own hand, it can be signed by another citizen (applicant) at his request in the presence of a notary. In accordance with the norms of the Civil Code, a witness may be present at the time of drawing up and notarial certification of a will, at the will of the testator. The law (clause 2 of article 1124 of the Civil Code) defines the circle of persons who cannot be witnesses and cannot sign a will instead of a testator. The law establishes the obligatory observance of the secrecy of the will (Article 1123 of the Civil Code). When certifying a will, the notary is obliged to explain to the testator the norms on the right to an obligatory share in the inheritance (Article 1149 of the Civil Code) and make an inscription about this on the will (Article 1125 of the Civil Code). The place and date of its certification must be indicated on the will, except for the case provided for by Art. 1126 of the Civil Code (clause 4 of article 1124 of the Civil Code). For the first time, the current legislation provides for the possibility of drawing up a closed will. The procedure for making and announcing a closed will is regulated in detail by Art. 1126 GK. The rights to funds deposited by a citizen or held on any other account of a citizen in a bank can be bequeathed by a citizen in a general manner (Articles 1124 - 1127 of the Civil Code) or by making a testamentary disposition in writing in the branch of the bank where the this account. Since, unlike the previous legislation, in the new Civil Code the disposition in question is recognized as testamentary, the rights to the funds in respect of which it was made are part of the inheritance and are inherited on a general basis. These funds are issued to heirs on the basis of a certificate of the right to inheritance and in accordance with it, with the exception of cases provided for in paragraph 3 of Art. 1174 GK. Failure to comply with the rules established by the Civil Code on the written form of a will and its certification entails the invalidity of the will (paragraph 2, clause 1, article 1124 of the Civil Code). For the first time, the current civil legislation establishes rules on wills in emergency circumstances. According to Art. 1129 of the Civil Code, a citizen who is in a situation that clearly threatens his life, and due to the prevailing emergency circumstances, is deprived of the opportunity to make a will in accordance with the norms of Art. 1124 - 1128 of the Civil Code, may express his last will regarding his property in a simple written form. Such a statement of the last will by a citizen is recognized as his will, if the testator personally wrote and signed a document, from the content of which it follows that it is a will, in the presence of two witnesses. A will made in these circumstances becomes invalid if the testator, within a month after the termination of these circumstances, does not take advantage of the opportunity to make a will in any other form provided for in Art. 1124 - 1128 GK. A will made in extraordinary circumstances in accordance with Art. 1129 of the Civil Code, is subject to execution only if the court confirms, at the request of the interested parties, the fact that the will was made in emergency circumstances in the manner of special proceedings. The specified requirement must be declared before the expiration of the period established for the acceptance of the inheritance. The current legislation provides for the possibility for the testator to establish at his disposal the property in the event of death of a testamentary refusal, i.e. the imposition on one or more heirs by will or by law of the execution at the expense of the inheritance of any obligation of a property nature in favor of one or several persons (legatees) who acquire the right to demand the fulfillment of this obligation. A testamentary refusal must be established directly in the will. In this case, the content of the will may be exhausted by a testamentary refusal. In accordance with the conditions of a testamentary refusal, the testator may be obliged to transfer to the legatee the property or use of the thing that is part of the inheritance, to acquire for the legatee and transfer to him other property, to perform certain work for him or provide him with a specific service, etc. The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance and does not pass to other persons. However, the law provides for the possibility of sub-appointment of the legatee (Article 1137 of the Civil Code). The beneficiary has the right to refuse to receive a testamentary refusal. At the same time, a refusal in favor of another person, a refusal with reservations or under a condition is not allowed. In the case when the legatee is at the same time the heir, his right to this refusal does not depend on his right to accept the inheritance or refuse it (Article 1160 of the Civil Code). From testamentary refusal it is necessary to distinguish testamentary assignment (Article 1139 of the Civil Code). The latter is the imposition on the heir by will or by law of the commission of any action of a property or non-property nature, aimed at the implementation of a generally useful goal. The same obligation may be imposed on the executor of the will, provided that a part of the estate property is allocated in the will for the execution of the testamentary assignment. New for our legislation is the rule according to which the testator has the right to impose on one or several heirs the obligation to maintain domestic animals belonging to the testator, as well as to exercise the necessary supervision and care for them. The execution of the will is carried out by the heirs under the will, with the exception of cases when its execution in full or in a certain part is carried out by the executor of the will (Article 1133 of the Civil Code). In accordance with Art. 1134 of the Civil Code, the testator may entrust the execution of the will to the citizen-executor (executor of the will) indicated by him in the will, regardless of whether this citizen is an heir. The executor of a will has the right to compensation from the inheritance for the necessary expenses associated with the execution of the will, as well as to receive remuneration from the inheritance in excess of the expenses, if this is provided for by the will. 22.3. Inheritance by law The current Civil Code has significantly expanded the circle of legal heirs. Currently, eight lines of heirs have been established (Articles 1142-1145 of the Civil Code). Legal heirs are called to inherit in the following order: 1) children, spouse and parents of the testator; 2) 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; 3) full and half brothers and sisters of the testator's parents (uncles and aunts of the testator); 4) relatives of the third degree of kinship (the degree of kinship is determined by the number of births separating relatives of one from another, and the birth of the testator is not included in this number) - the great-grandfather and great-grandmother of the testator; 5) relatives of the fourth degree of kinship - children of the natural nephews and nieces of the testator (cousins and granddaughters) and siblings of his grandparents (cousin grandparents); 6) relatives of the fifth degree of kinship - children of cousin grandsons and granddaughters of the testator (cousin great grandchildren and great granddaughters), children of his cousins (cousin nephews and nieces) and children of his great grandparents (cousin uncles and aunts); 7) stepchildren, stepdaughters, stepfather and stepmother of the testator; 8) disabled dependents of the testator in the absence of other legal heirs. According to paragraph 2 of Art. 1141 of the Civil Code, heirs of the same order inherit in equal shares, with the exception of heirs who inherit by right of representation (Article 1146 of the Civil Code). If the surviving spouse is called to inherit together with other heirs, then first the size of his share in the property jointly acquired during the marriage is determined, and then the remaining part of the property is divided among the heirs according to the law, which includes the surviving spouse (Article 1150 of the Civil Code). The law provides for the possibility of inheritance by right of representation. According to Art. 1146 of the Civil Code, the share of the heir by law, who died before the opening of the inheritance or simultaneously with the testator, passes by right of representation to his respective descendants ("representatives" of this person) in cases where the deceased heir belonged to the heirs of any of the first three stages. The descendants of the heir by law, deprived of the inheritance by the testator (clause 1 of article 1119 of the Civil Code), as well as the descendants of the heir who died before the opening of the inheritance or simultaneously with the testator and who would not have the right to inherit as an unworthy heir (clause 1 of article 1117 of the Civil Code), do not inherit by right of representation. XNUMX article XNUMX of the Civil Code). Citizens belonging to the heirs according to the law of the second - seventh stages, disabled by the day of the opening of the inheritance, but not included in the circle of heirs of the line called for inheritance, inherit by law together and on an equal footing with the heirs of this line, if at least a year before the death of the testator were dependent on him, regardless of whether they lived together with the testator or not. As disabled dependents of the testator, citizens who are not included in the circle of heirs according to the law, but on the additional condition that they lived together with the testator, also inherit. In the absence of other legal heirs, disabled dependents of the testator who are not related to such heirs inherit independently as heirs of the eighth stage (Article 1148 of the Civil Code). The law (Article 1149 of the Civil Code) traditionally establishes the right to a mandatory share in the inheritance for persons whose interests are most in need of protection during inheritance. Minor or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator who are subject to the call to inherit, have this right. These persons inherit, regardless of the content of the will, at least half of the share that would be due to each of them in the event of inheritance by law. If the exercise of the right to an obligatory share in the inheritance entails the impossibility of transferring to the heir under the will the property that the heir having the right to the obligatory share did not use during the life of the testator, but the heir under the will used for living (a residential building, apartment, other residential premises, dacha, etc.) or used as the main source of livelihood (tools, creative workshop, etc.), the court may, taking into account the property status of the heirs who are entitled to a mandatory share, reduce its size or refuse to its award (Article 1149 of the Civil Code). 22.4. Acquisition of an inheritance In accordance with paragraph 1 of Art. 1152 of the Civil Code, in order to acquire an inheritance, the heir must accept it. Acceptance of an inheritance is not required only for the acquisition of escheated property. The acceptance of an inheritance is a unilateral transaction made by the heir. The peculiarity of this transaction is that it is given retroactive effect. According to paragraph 4 of Art. 1152 of the Civil Code, the accepted inheritance is recognized as belonging to the heir from the day the inheritance was opened, regardless of the time of its actual acceptance, and also regardless of the moment of state registration of the heir's right to inherited property, when such a right is subject to state registration. Since the property of the deceased passes to the heirs as a whole (paragraph 1 of article 1110 of the Civil Code), the acceptance by the heir of a part of the inheritance means the acceptance of the entire inheritance due to him, no matter what it is and wherever it is located. At the same time, the acceptance of an inheritance by one or more heirs does not mean its acceptance by the other heirs (paragraph 1, clause 2 and clause 3, article 1152 of the Civil Code). The law does not allow the acceptance of an inheritance under a condition or with reservations (paragraph 3, clause 2, article 1152 of the Civil Code). Inheritance can be accepted in two ways: 1) by submitting an application by the heir to a notary or authorized in accordance with the law to issue certificates of the right to inheritance to an official; 2) by actual acceptance of the inheritance. In the first case, the heir submits to the notary or the above-mentioned official at the place of opening of the inheritance an application for acceptance of the inheritance or for the issuance of a certificate of the right to inheritance. In the second case, it is recognized, until proven otherwise, that the heir has accepted the inheritance if he has committed actions indicating the actual acceptance of the inheritance, in particular, if the heir: ▪ took possession or management of inherited property; ▪ took measures to preserve the inherited property, protect it from encroachments or claims of third parties; ▪ incurred expenses for the maintenance of the inherited property at his own expense; ▪ paid the debts of the testator at his own expense or received funds due to the testator from third parties (clause 2 of Article 1153 of the Civil Code). The inheritance can be accepted by the above methods within six months from the date of its opening. If the right to inherit arises for other persons as a result of the heirs' refusal from the inheritance or the removal of the heir from participation in the inheritance as unworthy (Article 1117 of the Civil Code), such persons may accept the inheritance within six months from the date they have the right to inherit. Persons for whom the right to inherit arises only as a result of non-acceptance of the inheritance by another heir may accept the inheritance within three months from the date of the end of the general period for accepting the inheritance (Article 1154 of the Civil Code). At the request of the heir who has missed the deadline set for accepting the inheritance, the court may restore this deadline and recognize the heir as having accepted the inheritance, if the heir did not know and should not have known about the opening of the inheritance or missed this deadline for other valid reasons and provided that the heir, missed the deadline for accepting the inheritance, applied to the court within six months after the reasons for missing this deadline have disappeared. At the same time, the shares of all heirs are determined anew, and previously issued certificates of the right to inheritance are recognized by the court as invalid (clause 1 of article 1155 of the Civil Code). The inheritance can be accepted by the heir after the expiration of the period established for its acceptance, without going to court, subject to the written consent of all the other heirs who accepted the inheritance (clause 2 of article 1155 of the Civil Code). If an heir called to inherit by will or by law dies after the opening of the inheritance, without having time to accept it within the prescribed period, the right to inherit the inheritance due to him passes to his heirs by law, and if all the inheritance property was bequeathed - to his heirs by testament (hereditary transmission). The right to accept an inheritance in the order of hereditary transmission is not included in the composition of the inheritance opened after the death of such an heir. The right to accept an inheritance that belonged to a deceased heir may be exercised by his heirs on a general basis. Moreover, if the part of the period established for accepting the inheritance remaining after the death of the heir is less than three months, it is extended to three months. The right of the heir to accept part of the inheritance as a mandatory share (Article 1149 of the Civil Code) does not pass to his heirs (Article 1156 of the Civil Code). According to Art. 1157 of the Civil Code, the heir has the right to refuse the inheritance in favor of other persons (Article 1158 of the Civil Code) or without specifying the person in whose favor he refuses the inheritance property. The renunciation of an inheritance is a one-sided transaction. When inheriting escheated property, it is not allowed. The heir has the right to refuse the inheritance within the period established for the acceptance of the inheritance (Article 1154 of the Civil Code), including in the case when he has already accepted the inheritance. If the heir has committed actions indicating the actual acceptance of the inheritance (paragraph 2 of article 1153 of the Civil Code), the court may, at the request of this heir, recognize him as having renounced the inheritance even after the expiration of the established period, if he finds the reasons for missing the deadline valid. The renunciation of the inheritance cannot be subsequently changed or taken back. Refusal of an inheritance in the case when the heir is a minor, incapacitated or partially capable citizen, is allowed with the prior permission of the guardianship and guardianship authority. The heir has the right to refuse the inheritance in favor of other persons from among the heirs by will or heirs by law of any order, not deprived of inheritance (clause 1 of article 1119 of the Civil Code), including in favor of those who are called to inherit by right of representation or in order of hereditary transmission (Article 1156 of the Civil Code). Refusal of inheritance in favor of any other persons is not allowed. Renunciation of inheritance in favor of any of the following persons is not allowed: ▪ from property inherited under a will, if all of the testator’s property is bequeathed to his appointed heirs; ▪ from the obligatory share in the inheritance (Article 1149 of the Civil Code); ▪ if the heir is assigned an heir (Article 1121 of the Civil Code). Renunciation of an inheritance with reservations or under conditions is not allowed. Refusal of part of the inheritance due to the heir is not allowed. However, if the heir is called to inherit simultaneously on several grounds (by will and by law or by way of hereditary transmission and as a result of the opening of an inheritance, etc.), he has the right to refuse the inheritance due to him on one of these grounds, on several of them or on all grounds (Article 1158 of the Civil Code). The law regulates the increment of hereditary shares. According to Art. 1161 of the Civil Code, if the heir does not accept the inheritance, renounces the inheritance, without indicating that he refuses in favor of another heir (Article 1158 of the Civil Code), will not have the right to inherit or will be removed from inheritance on the grounds established by Art. 1117 of the Civil Code, or as a result of the invalidity of the will, the part of the inheritance that would be due to such a fallen heir passes to the heirs according to the law, called to inherit, in proportion to their inheritance shares. In the event that the testator bequeathed all the property to the heirs appointed by him, the part of the inheritance due to the heir who renounced the inheritance or who fell away on other specified grounds passes to the rest of the heirs by will. However, the will may provide for a different distribution of this part of the inheritance. The above rules do not apply if an heir was assigned to the fallen heir (clause 2 of article 1121 of the Civil Code). A certificate of the right to inheritance is issued at the place of opening of the inheritance by a notary or an authorized official. The certificate 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 the entire estate as a whole or for its separate parts. In the event that after the issuance of a certificate of the right to inheritance of hereditary property for which such a certificate has not been issued, an additional certificate of the right to inheritance is issued (Article 1162 of the Civil Code). In accordance with Art. 1163 of the Civil Code, when inheriting both by law and by will, a certificate of the right to inheritance can be issued before the expiration of six months from the date of opening of the inheritance, if there is reliable evidence that, in addition to the persons who applied for the issuance of a certificate, other heirs who have the right on the inheritance or its corresponding part, is not available. The issuance of a certificate of the right to inheritance is suspended by a court decision, as well as in the presence of a conceived but not yet born heir. When inheriting by law, if the hereditary property passes to two or more heirs, and when inheriting by will, if it is bequeathed to two or more heirs without specifying the specific property inherited by each of them, the hereditary property comes from the day the inheritance is opened into the common shared property of the heirs ( part 1 of article 1163 of the Civil Code). Inheritance property, which is in the common shared ownership of two or more heirs, may be divided by agreement between them. The rules of the Civil Code on the form of transactions and the form of contracts (clause 1 of article 1165 of the Civil Code) apply to the agreement on the division of the inheritance. The heir, who, together with the testator, had the right of common ownership of an indivisible thing (Article 133 of the Civil Code), a share in the right to which is part of the inheritance, has, when dividing the inheritance, the priority right to receive, on account of his hereditary share, the thing that was in common ownership, before heirs who were not previously participants in common property, regardless of whether they used this thing or not. An heir who constantly used an indivisible thing that is part of the inheritance also has, when dividing the inheritance, a priority right to receive this thing on account of his inheritance share over heirs who did not use this thing and were not previously participants in common ownership of it. If the inheritance includes a dwelling (residential house, apartment, etc.), the division of which is impossible in kind, the heirs who lived in this dwelling by the date of opening of the inheritance have the priority right to receive this dwelling in accordance with their shares having no other living quarters (Article 1168 of the Civil Code). According to Art. 1169 of the Civil Code, the heir, who lived on the day of the opening of the inheritance together with the testator, has, when dividing the inheritance, the pre-emptive right to receive items of ordinary home furnishings and household items at the expense of his hereditary share. The disproportion of the inherited property, the preferential right to receive which the heir has in ownership, with his inheritance share is eliminated by the transfer by this heir to the rest of the heirs of other property from the inheritance or the provision of other compensation, including the payment of the appropriate amount of money (paragraph 1 of article 1170 of the Civil Code) . The above rules of art. 1168 - 1170 of the Civil Code are applied within three years from the date of opening of the inheritance (part 2 of article 1164 of the Civil Code). To protect the rights of heirs, legatees and other interested parties, the executor of the will or the notary at the place of opening of the inheritance takes the necessary measures to protect the inheritance and manage it (Article 1172 of the Civil Code). The notary takes measures for the protection of the inheritance and its management at the request of one or more heirs, the executor of the will, the local self-government body, the body of guardianship and trusteeship or other persons acting in the interests of preserving the inheritance property. In the case when the executor of the will is appointed, the notary takes measures to protect the inheritance and manage it in agreement with the executor of the will. The executor of the will takes measures to protect the inheritance and manage it independently or at the request of one or more heirs (Article 1171 of the Civil Code). According to Art. 1173 of the Civil Code in cases where the inheritance contains property that requires not only protection, but also management (an enterprise, a share in the authorized (share) capital of a business partnership or company, securities, exclusive rights, etc.), a notary in accordance from Art. 1026 of the Civil Code concludes an agreement on trust management of this property as the founder of such management. If inheritance is carried out under a will in which the executor of the will is appointed, the rights of the founder of trust management belong to the executor of the will. Necessary expenses caused by the dying illness of the testator, expenses for his dignified funeral, including the necessary expenses for paying for the place of burial of the testator, expenses for the protection of the inheritance and management of it, as well as expenses related to the execution of the will, are reimbursed from the inheritance to the extent of its value. Claims for reimbursement of these expenses may be presented to the heirs who accepted the inheritance, and before the acceptance of the inheritance - to the executor of the will or to the estate property. Such expenses shall be compensated before the payment of debts to the creditors of the testator and within the limits of the value of the inherited property transferred to each of the heirs. At the same time, the law establishes three stages of reimbursement of these expenses: 1) expenses caused by the illness and funeral of the bequeather; 2) expenses for the protection of the inheritance and its management; 3) expenses related to the execution of the will. To cover the costs of a decent funeral of the testator, any funds belonging to him, including deposits or bank accounts, can be used. Banks in whose deposits or accounts the testator's funds are located are obliged, by a notary's decision, to provide them to the person specified in this decision to pay for such expenses. The heir to whom the funds deposited or held on any other accounts of the testator in banks, including in the case when they were bequeathed by testamentary disposition in a bank (Article 1128 of the Civil Code), are bequeathed, have the right at any time before the expiration of six months from on the day of the opening of the inheritance, to receive from the deposit or from the account of the testator the funds necessary for his funeral. However, in all cases, the amount of funds issued by the bank for the funeral of the testator cannot exceed 200 minimum wages established by law on the day of applying for these funds (Article 1174 of the Civil Code). In accordance with Art. 1175 of the Civil Code, the heirs who have accepted the inheritance are jointly and severally liable for the debts of the testator (Article 323 of the Civil Code). At the same time, each of them is liable for the debts of the testator only within the limits of the value of the inherited property that has passed to him. Prior to the acceptance of an inheritance, creditors' claims may be brought against the executor of the will or against the estate. In the latter case, the court suspends the consideration of the case until the inheritance is accepted by the heirs or the escheated property is transferred by way of inheritance to the Russian Federation. When claims are presented by the testator's creditors, a special rule applies, according to which the limitation period established for the relevant claims is not subject to interruption, suspension and restoration. The current legislation (Chapter 65 of the Civil Code) contains rules relating to the inheritance of certain types of property. These types of property are (Articles 1176 - 1185 of the Civil Code): ▪ rights related to participation in business partnerships and societies, production cooperatives; ▪ rights related to participation in a consumer cooperative; ▪ enterprise; ▪ property of a member of a peasant (farm) enterprise; ▪ items limited in circulation; ▪ land plot; ▪ unpaid amounts provided to a citizen as a means of subsistence; ▪ property provided to the testator by the state or municipality on preferential terms; ▪ state awards, honorary and memorable signs. Author: Ivakin V.N. << Back: Liabilities due to unjust enrichment >> Forward: Rights to the results of intellectual activity and means of individualization: general provisions
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