It is believed that the law of succession is one of the most complex legal sectors. This is due to various circumstances, including the action of the human factor. As a rule, difficulties arise at the stage of distribution of shares in the estate, when each successor believes that he acts as the legal owner of the property of the deceased.
In this regard, it is often difficult to establish who exactly in reality legitimately relies on part of the inheritance, and who does not have rights to it.
General succession rules
According to current standards, inheritance in the Russian Federation is carried out according to:
- To the law. The Civil Code contains special articles governing succession in the event that the owner has not left a will. In these articles, the term of entry into the inheritance, conditions, priority, etc.
- Testament. This form of succession implies the entry into the inheritance, according to the will of the owner, recorded in writing in a special document certified by a notary.
The specifics of the will
The legislation establishes the principle of freedom of expression of any person who wishes to dispose of his property after his death. Of course, the deceased cannot share his values among the successors. Accordingly, during his lifetime he has the right to make a will. It is a document in which a citizen indicates which part of his property passes to whom.
At the same time, in the Civil Code there is such a thing as an “obligatory share in the inheritance”. In the Russian Federation, the rules governing succession enshrined guarantees for certain categories of citizens. They are included in the circle of heirs, regardless of whether they are indicated in the will or not. Let us consider in more detail who is entitled to an obligatory share in the inheritance.
general characteristics
According to the law, an obligatory share in the inheritance is a part of the property of the deceased owner, relying on certain categories of persons. It is passed on to them even when all material values are distributed among other successors, including those who are not related to the deceased, according to the will.
Immediately it is worth saying that the size of the required share in the inheritance is not so large. Although in each individual situation this part can be very significant.
The owner of the property may indicate the mandatory share in the inheritance at the will. At the same time, he has the right to transfer part of the values, the volume of which exceeds the minimum established by law. However, he cannot indicate the size of the share that is smaller than defined in the norms. Other property (remaining after the allocation of an obligatory share in the inheritance under Article 1149 of the Civil Code) can be obtained by both citizens and legal entities.
Subjects
The right to an obligatory share in the inheritance are:
- Disabled relatives of the owner (including minor children).
- Parents, spouses who are not able to work due to old age or due to health reasons.
- Dependents of the owner. Moreover, the degree of kinship is not taken into account. In this case, the main thing is that these citizens are at the full content of the testator.
General rules of calculation
The size of the mandatory share in the inheritance should be at least half of the part that would be required for each respective successor under the law, if the values are already distributed among other persons by will. In case of non-compliance with this requirement, the procedure for accepting the inheritance will be invalidated.
Nuances
The right to an obligatory share in the inheritance is exercised from the non-promised part of material assets, even if this entails a decrease in the rights of the remaining successors to this part. If the remaining hereditary mass is not enough, the allocation of the share is carried out from the already bequeathed.
The mandatory share in the inheritance, according to the Civil Code of the Russian Federation, includes everything that the successor receives for any reason, including the cost of a testament refusal established in his favor.
Address to the notary
To exercise the right to an obligatory share in the inheritance, you must contact the authorized person conducting the case of the testator. For a minor under the age of 14, these actions are performed by his legal representatives. The application is submitted to the notary at the last address of the owner.
To confirm the right to share, the applicant provides:
- Sv-about birth.
- Certificate of incapacity for work.
- A document confirming the fact of being dependent on a deceased person.
When contacting a notary public, a passport is also required (for citizens over 14 years old). It is also advisable to bring with you title documents for real estate, vehicles, bank statements, etc.
If for some reason the notary rejects the application for the provision of a mandatory share in the inheritance, the person concerned has the right to apply to the court. A lawsuit for recognition of inheritance rights is filed with the court.
Obligatory share in the inheritance to the pensioner
The list of entities that can count on an obligatory share includes disabled parents of the property owner. It is, in particular, about persons who, due to age or other reasons, have completed their professional activities. This means that when distributing the property of the deceased, it must be taken into account that those who receive state retirement benefits are among those in need.
In addition, it should be taken into account that disabled persons 1-3 gr are recognized as disabled entities. According to the Civil Code, an obligatory share in the inheritance to these persons is provided regardless of the fact that they receive cash payments.
Consider an example. Suppose a citizen has a daughter and a son. They are the heirs of the 1st stage (according to the Civil Code). However, shortly before his death, the owner made a will. In it, the citizen indicated that the son was entitled to an apartment worth 3 million rubles.
Before the death of the testator, the daughter received a disability due to injury. Accordingly, she was recognized as having the right to count on an obligatory share in the inheritance. She is half of the part that would have been her in the absence of a will. As a result, the daughter received 1/4 of the object.
Dependents
They are considered to be disabled persons who are fully supported by the testator. In order to receive an obligatory share in the inheritance, dependents must observe a number of conditions. First of all, the law requires these people to live together with the owner for at least a year before the death of the latter. Secondly, the deceased must be their sole breadwinner. That is, dependents should not have their own income.
Upon receipt of an obligatory share in the inheritance, these entities are assigned to the queue in accordance with the degree of relationship. The content of the will does not matter. If the dependent is not a relative of the deceased, then he becomes the successor to the 8th stage. He receives his part if heirs are not declared by testament or law.
Signs of Dependence
In the Civil Code, the concept of a dependent is not disclosed. However, the definition can be found in article 10 of the Federal Law No. 400.
The list of persons recognized as dependents includes:
- Men and women aged 60 and 55 years, respectively.
- Children under 23 years old, studying full-time.
- Underage successors included in the 1-2 stages, if they care for grandchildren, brothers / sisters, children of the deceased who have not reached 14 liters.
- Subjects with disabilities. It should be supported by an MSEC conclusion.
According to the provisions of the Federal Law No. 400, the minor children of the testator are not required to confirm the fact that they are dependent. All other persons on the list must be provided with evidence.
Important points
The Civil Code establishes a rule according to which citizens who are kept by the testator should not have their own income. In this case, we are talking about the receipt of funds from work, renting out property, doing business, and not about social benefits, disability payments, etc.
Dependence also involves the fulfillment of obligations that arose when an alimony was ordered by court order or by virtue of an agreement, for moral reasons (for example, an entity helps a sister, a child, or another close relative who is unable to provide for itself).
Exceptions
The circle of heirs does not include entities with which agreements on life annuity and an obligation to maintain them in accordance with Art. 601 GK. In addition, successors of 2–7 lines, citizens applying for a part of the hereditary mass by right of representation in the event of the death of their parents before the opening of the case, are not recognized as dependents.
Minors
An obligatory share in the inheritance is provided for children under the age of 18 liters. These persons are recognized as successors, regardless of the fact of their employment or training.
Even if a minor is emancipated (for entrepreneurial activity or in connection with marriage), he will still be called to inherit.
If the child was adopted by another person before the death of the testator, he will retain the right to a part of the property of the deceased due to kinship.
Case Study
Consider a hypothetical example. The district court received an application for recognition of rights to a share in the inheritance. During his life, the owner of the property issued a will. In it, he indicated his two sisters as successors. He inherited a house in his inheritance.
In the course of the proceedings, the court found that the testator had no other property at the time of death. However, in addition to the sisters, the citizen had a wife of 59 years and a 23-year-old son.
As established in the Civil Code, children and spouses are included in the first place. When making a will, a citizen violated the interests of his wife and son. Due to the fact that the testator's child has reached the age of majority on the date of death, he is not recognized as a dependent. But the spouse of the deceased can count on an obligatory share.
According to the UK, property acquired together in a marriage is divided in half. The house, as the court found, was acquired during the period of marriage. Accordingly, the wife is entitled to half of the object.
The remaining part may be distributed among the successors indicated in the will, taking into account the mandatory share. Accordingly, the wife will receive another 1/4 of the house. The remaining 3/4 objects will go to the sisters of the testator. The son is excluded from the circle of heirs, since he is not indicated in the will, is an adult and able-bodied.
Protecting the interests of children
The legislation contains provisions aimed at protecting the interests of unborn children. According to article 1116 of the Civil Code, a child conceived during the life of a deceased owner becomes the heir by law.
The division of property is allowed after the birth of the heir. In this case, there may be two outcomes:
- A baby will be born alive. In this case, he is included in the circle of successors. This follows from the general principles of legal capacity of a citizen that arises at birth. It ceases only with the death of an individual.
- The baby will be stillborn. In such a situation, the property will be distributed among the heirs who were alive at the time of opening the inheritance business.
If the property will be distributed between the successors before the birth of the child, in court this procedure will be declared invalid, since it contradicts the requirements of the law.
Conclusion
It should be noted that the adoption of an obligatory share in an inheritance in a will entails consequences similar to those that arise when receiving an inheritance in accordance with general rules. A person to whom the right to a part of the property is transferred may dispose of it at his own discretion, bears the burden of its maintenance.
The legislation provides for the possibility of rejection of the mandatory share. To do this, the interested person contacts a notary and draws up a corresponding application. It is worth noting that the refusal is unconditional. This means that the subject will not succeed again. In addition, the law does not allow rejection in favor of other successors.
Upon the transfer of part of the property to ownership, the successors acquire obligations that the testator had to repay. It is, in particular, about various kinds of debts (including credit).
The peculiarity of the obligatory share is that it stands out from the non-promised part of the hereditary mass. If the property is not enough, then the successor will still receive material values. The procedure for the distribution of property in such cases is established by the court.
To avoid problems, testators making up the will must carefully weigh their decision. Persons included in the list of obligatory heirs will receive their share in any case. The only thing is that the procedure may be delayed, since it is likely that a person will have to assert his rights in court.