Rus Articles Journal

To you the apartment according to the will or under the law?

“Are two ways of the introduction in the rights of inheritance: according to the will and under the law“. Many publications about inheritance begin with this paradoxical phrase. Besides that the first way - inheritance according to the will - is also regulated by the law (and the same is the Civil code). And the second way - inheritance under the law - is meant only sending to a peculiar table of “turns of inheritance“ in case there is no will. However, any will can be challenged, so there is also the third way of the introduction in the rights of inheritance - on court. It is undesirable to you? Then it is necessary to estimate the chances “in turn“ and to help the testator correctly to make the will.

In turn, bastards! In turn!

we Will begin

with the fact that it is simpler - from inheritance “under the law“. The civil code established eight turns of inheritance.

First stage: children, spouse (a) and parents; grandsons and their successors - by the right of representation (see below).

Second turn: full and not full brothers and sisters, the grandfather and the grandmother (both from the father, and from mother; nephews and nieces by the right of representation).

Third turn: full and not full brothers and sisters of parents (uncle and aunt); cousins and sisters by the right of representation.

Fourth turn: great-grandfathers and great-grandmothers.

Fifth turn: children of native nephews and nieces (cousin grandsons and granddaughters) both brothers and sisters of grandfathers and grandmothers (granduncles and grandmothers).

Sixth turn: children of cousin grandsons and granddaughters (cousin great-grandsons and great-granddaughters), children of cousins and sisters (cousin nephews and nieces) and children of granduncles and grandmothers (cousin uncles and aunts).

Seventh turn: stepsons, stepdaughters, stepfather, stepmother.

Eighth turn: disabled dependents of the testator.

Successors of one turn inherit property in equal shares. At the same time there is a delusion that in case of death of one of successors of the next turn all rights automatically pass with the rest of the same turn. Anything similar. Each of successors represents the line.

That - that, and the right - that you have

the Concept “representation“ means the following. For example, the woman had two daughters. One of them died, having left the daughter (the testator`s granddaughter). In this case two persons were called for inheritance in equal shares: the granddaughter (“representative“ of the died testator`s daughter) and her aunt. Though the last had three children, the house and a site divided into two equal parts. In general, options are possible the most fancy. Let`s tell if the died daughter had two children, then they would represent mother solidary - they would get the same half of the house for two. And if by the time of death of the grandmother not only her daughter, but also the granddaughter would die, but from it there would be a great-granddaughter, then the baby would inherit prababkino property together and as equals with the great aunt.

But do not think that in the Civil code everyone and everything is painted. Let`s tell, at the section of property interests of yet not been born child have to be considered (therefore, by the way, introduction term in rights of succession can be increased with usual to six about nine months). Until then the interests of yet not been born child are represented by his mother. Even in case inheritance goes in the area of the husband, and parents already divorced or at all were not married, i.e. mother of future child has no rights for property! The rights of mother in active protection of interests of the child are treated is inconsistent.

Forward, geologist!

Article 1148 of the Civil Code of the Russian Federation allocates to

two categories of disabled dependents. The first - relatives (those who enter one of the previous turns). If someone from them was dependent on the testator not less than a year (irrespective of whether they lived in common), then he participates in the section of inheritance together with relatives of that turn who are called for inheritance.

Real case: rather well-to-do citizen had two sons and the younger brother is a geologist. That lived in the Irkutsk region, to Moscow “on poverty“ ran seldom. Actually the geologist had which - what income in quality of the consultant of the gold mining enterprise, but to the elder brother to inquire about his earnings there was a lack of time. In a word, the elder brother helped younger, than could. In particular, undertook keeping of the disabled nephew who had a serious illness of a backbone. The younger brother of the receipt of money transfers carefully hemmed.

Kind heart of the elder brother was

the patient, and once there was a disaster. In the will, and it in most cases has a priority before inheritance “under the law“, the wife and two sons and which - the younger brother got that were specified.“ Which - that“, it is necessary to tell, was the sum sufficient for acquisition and arrangement of the apartment in Moscow, and still would remain. But it seemed to the geologist of it insufficiently - he demanded a share for the son as... uncle`s dependent!.

The matter is that there are cases when inheritance under the law costs if wills, then as equals with it are not higher than

. To whoever the testator, his minors or disabled children, disabled the spouse (a), parents in a temper otpisat property, and also disabled dependents all the same will receive a half of the fact that it would be necessary to them in turn irrespective of contents of the will (Art. 1149 “Right for an obligatory share in inheritance“).

You never can tell probably it would also escape

punishment. But “disinterested person“ developed such rough activity around an assessment of the city apartment and a lodge on Nikolinoy Gore, as that and another had to depart to him. It it finally got relatives. Nephews managed to produce to court the evidence not only the high income of the uncle, but also what their cousin by means of the father is banal “is“ a draft-dodger. Generally both got under “bad“ 1117 - yu article of the Civil Code of the Russian Federation - “Unworthy successors“.

the Six beats with

an ace

the Second category of disabled dependents (the eighth turn) can not have with the testator any related and conventional relations at all. However, already provided that the dependent lived together with the testator not less than a year. Surprisingly, but successors of the eighth turn in a century of an urbanization and rupture of related communications often “interrupt“ the others.

Ordinary history. The retired colonel after divorce with the first wife pledged not to marry any more, but brought “the fighting girlfriend“. The colonel on the living space did not register the cohabitant therefore the son and the daughter-in-law were quiet. But the father died. The son in all sincerity suggested “girlfriend“ of the father to live “week“ in the apartment until it finds other housing. And very much was surprised when in reply to it suggested to take away the SUV, furniture and other “junk“. The pretty lady 40 with small years one and a half years was a military pensioner, that is the dependent of the colonel and his income from activity in some cunning fund.

the Lawyer of the son recommended to that to solve the conflict extrajudicially. The matter is that there is such article 1168 (“The privilege to an indivisible thing at the section of inheritance“): “If the premises (the house, the apartment, etc.) are a part of inheritance which section in nature is impossible, at the section of inheritance the successors who were living there by the opening day of inheritance and not having other housing have before other successors who are not owners of this real estate, the privilege to receiving on account of their hereditary shares of these premises“. It was necessary to be content to the son with the SUV, “junk“ and some surcharge. How much was money which the colonel stored houses (and which was not considered at the section of inheritance), stayed behind scenes.

do not broadcast

, and bequeath

“Yes, the person is mortal, but it would be still half-troubles. Badly the fact that it is sometimes suddenly mortal, here in what focus!“ It would be possible to argue with professor Voland, but it is not necessary better: you know, than it comes to an end. Especially as remaining all - it is better if leaving somehow settled formalities: cases when relatives managed to divide property (“in turn“ or on court), without having damned each other, are single. Many parents for some reason believe that if one son “took place“, and another - is not present, then the first if something happens will tell the second: “Yes take away you this refrigerator, and business from the end!“ Deep delusion. The only chance to preserve the peace in a family - to make the will.

the Ideal will is written with own hand, signed by the testator and certified by the notary. In the will, at least, Russian, no conditions to successors can be exposed. The civil code allows the notary to write the document and according to the testator, but it usually raises further questions therefore notaries agree to write wills only in extreme cases.

In force majeure of people the will with own hand in the presence of two witnesses without any assurance, however, in a month after the termination of these circumstances just has the right to write

such will loses force (if, of course, the testator survived and is capable to make the will regularly). Therefore group of companies allows cases when above the autographic text and notarial assurance the signature of a certain administrator is appended, namely: if the citizen is on treatment in hospital, at nursing home and disabled people, in swimming (on vessels under the flag of the Russian Federation), in expedition, at home station of remote military unit, in places of detention. In these cases the will is certified respectively main (or the person on duty) by the doctor, the captain of the vessel, the chief of expedition, the commander of part, the chief of ITU (pre-trial detention center), and also one witness. From the testator only the signature is required.

we Will put the end over “yo“

the Claim for recognition of the will invalid - one of the most common causes of appeals to the court on cases of inheritance. As it was told, it is possible to challenge any will. The matter is that phrases:“ Examination established that the note is written by it - that “or“ under the document there is a signature of it - that“ suit only for detectives. Professional and conscientious graphological examination draws the conclusion that handwriting or the signature “can belong“ or “with high probability belongs“ to it is that to the person (also mathematical turns it seems “probability of 95%“, but never - 100% meet).

It does not mean what is enough to be declared:“ It is not my handwriting (signature)“, - and the court will not take cognizance of the document. Especially as in our case the text and the signature belong (or do not belong) to the person who is already dead. Counterarguments are necessary. For example, lingvisichesky examination.

Here one more example. The scientist - the chemist wrote several tens scientific works and articles and everywhere used a literary turn “in this regard“, and in the will instead of it a colloquial turn “in this regard“ was twice used. Similar discrepancies only offhand were found a little. The lawyer explained to the party insisting on authenticity of the will that it can be recognized written under pressure, and it will already entail application of article 1117 (“Unworthy successors“). Children entered rights of succession “under the law“ in equal shares - to mutual pleasure.

One of ways to prevent the potential conflicts - to attach to the will which is stored at the notary the document (the letter or the video message) which does not have validity in which the testator explains the decision. It is not obligatory at all that the document contained some “compromising evidence“, but having, as a rule, got acquainted with it at the notary, dissatisfied applicants do not risk to take out this message on a public inspection in court.

And with a piece of paper - the person

Quite frequent reason of an appeal to the court for inheritance - restoration of term of the introduction in rights of succession. The law takes away on it six months.

is Told, in Moscow annually there are several honeycombs of death when relatives of the first stage (as a rule, to children) lack half a year to learn about death of parents and the opened inheritance. And it is only those cases when relatives, eventually, appeal to court behind extension of term of the introduction in inheritance. Sometimes the court recognizes the reason of delay valid: stay in places of detention, in army, in long business trip. Sometimes, on the contrary, the same article 1117 about unworthy successors allowing discharge from inheritance under the law “citizens works, it is malicious evading from performance of the obligations for keeping of the testator lying on them by law“. But, perhaps, more often courts treat the mountain - successors very softly.

there Arrived in the summer the son to mother to the Tver region and learned that the old woman died even in the fall, and in the house his niece manages. “The grandma told - my house“, - she declared to the uncle. “Really?“ - the successor was surprised and left. In a month with small the niece received the summons. There it asked the uncle tricky questions of how often he came to mother where there is a column, next to the house, and how much in the village a cube of firewood. The uncle found it difficult to answer. But it had certificates that in recent years it was practically in a condition of clinical death and only by huge effort of will fulfilled official duties in some department. Seized - half-houses.

However, the problem arose. The site long and narrow, in a quarter - in any way does not share. We already mentioned article 1168 (“The privilege to an indivisible thing“). There is no other property in the house, the niece refuses to redeem half-houses, and the uncle is afraid to come to the village to rest. Do not love it there.

Notaries without borders

the president Putin Asked a question two years ago:“ What for hairsplitting? The person from parents inherits the apartment or a garden site - all the same pay a tax!“ The State Duma reacted quickly: the law canceling a tax on successors of the first stage came into force since January 1, 2006. But also today, when the tax is not accrued, many notary offices for registration of the introduction in rights of succession demand the floor-by-floor plan and an explication from BTI, and also the certificate of housing cost from there. Probably, for calculation of the notarial duty in 1,5% of cost of the apartment (according to the reference of BTI). But duty - not a tax.

A that you did not forget to leave from these 1,5%, in office of a registry office and other establishments will remind you that within six months successors are obliged to file in notary office a petition for acceptance of inheritance. And in the nearest office. And just in case will prompt the address. Though since the same 2006 the Inheritance without Borders program which allows to address any notary within Moscow works in the capital.

But, eventually, who will expel you from the mother`s apartment? How many years you filled in forms of receipts and paid utility payments? And the best proof that you actually lived in this apartment and is not required. That is you automatically enter rights of succession. It is necessary to put documents in order everything-: suddenly over time decide to sell the apartment. But without fussing. Quietly pick up the notary posovestlivy though in Mitino though in Butovo.