In this material, we want to introduce you to one of the important aspects of inheritance. This is a testament refusal. Let us examine the meaning of the concept itself, its subject, the obligations that it assumes, and all other important information in this vein.
What is it?
Testamentary denial is the duty of the person in whose favor part of the inherited property is directed. This means that, together with the new property, this citizen receives new obligations.
The testament denial institution in Russia is regulated by Art. 1137, 1138 of the Civil Code. They contain a description of the content of such an obligation, the principles of its action.
Essence of the question
We have established that testamentary denial is an obligation (obligations) that the testator places on the heir (or circle of heirs). Let's reveal the essence of this:
- This refusal implies the fulfillment of an obligation at the expense of that share of the property that was received by the heir after the death of the testator.
- It is always the fulfillment of an obligation of a purely proprietary nature.
- The procedure includes the repayment by the heir of the testator's debts to the creditors (beneficiaries) of the latter. Moreover, their number may be different - this allows the Civil Code. The right of the consignee must necessarily be confirmed by title documents. Only a legitimate creditor can demand from the heir to repay the obligations on the debt transferred to him from the testator.
What is the conclusion? A testament refusal together with the property transfers to the heir the debts of the testator, which he is required by law to repay.
Legate subject
We continue the conversation. When narrating about a testament refusal and testamentary laying, you need to know what will be the subject of the legate - property, which should be deducted from the total inherited mass. These are the conditions:
- Transfer of some inherited objects into the ownership of the consignee.
- The transfer of any property in the possession of the lender.
- Provision of items, phenomena for use by the consignee (consignees).
- Performance of a number of works for the benefit of the declared creditor.
- Provision of specific services to the consignee.
- Implementation of a money transfer to a creditor - one-time or periodic.
- Fulfillment of any other obligations of a purely property nature specified in the will.
Probate
It is necessary to distinguish between a testament refusal and a testament. The latter refers to the official assignment of the testator to the heirs (one, some group or the whole mass) to take action of both a property and non-property plan aimed at realizing a generally useful goal.
This obligation can lie not only on the recipients of the inheritance, but also on the will of the will. Provided that under this document a certain share of property will be allocated for the implementation of the wishes.
An excellent example of a testamentary laying will be the order of the deceased regarding the maintenance of his pets, the care and supervision of them. This is regulated by paragraph 1 of Art. 1139 Russian Civil Code.
The following aspects are important here:
- Any of the interested parties (the executor of the will, other heirs) has the right to demand from the recipient of the inheritance the execution of the testamentary assignment prescribed to him in court, if other measures are unsuccessful.
- About the transfer of obligations. If the share of the property that is due to the heir, in accordance with the Civil Code, has been transferred to other recipients of the bequeathed property, then along with it to these persons will be transferred his duty - testamentary assignment.
Let's now decide on the difference in the subjects of conversation.
The difference between a testament and a denial
In order not to confuse these concepts, we denote their key differences:
- Testament refusal can only be called property actions. The assignment will be both property and non-property obligations.
- The denial is directed at a specific person or circle of creditors. The addressees of the testament are uncertain.
- Legate can only satisfy the legatee. All interested persons have the right to demand the execution of a testament.
But an important point. If, within the framework of a testamentary laying, it is necessary to complete the actions of the property plan in the direction of an indefinite circle of citizens, then in his actions the heir should be guided by the rules that are typical for refusal.
Laying on the legate
Talking about testament refusal and testamentary laying, we will now reveal the essence of the first. How to assign legates to an heir? It is enough to write such a condition in a document expressing the last will of the deceased - a will.
The form of this paper is allowed a different plan. These are special closed wills that are drawn up in extraordinary circumstances, and traditional documents certified by a notary.
The right of testamentary rejection also admits such a fact. A document with the last will can contain only the legate for the heirs.
The competent preparation of such a paper is very important. The will must clearly spell out the essence of the testament refusal. It is also necessary to identify the heir (s) to whom such a duty is entrusted. The will necessarily contains comprehensive information about the beneficiaries.
All documents with the announcement of the last will must be certified by a notary. This also applies to those that contain a testament refusal. The notary must sign this paper, leave an imprint of the personal official seal on it. Only this confirms the legitimacy of both the document itself and the requirements contained therein on the execution by the heirs of the legate.
Fulfillment of an obligation
The subject of a testament can be various property relations - transfer to ownership / possession, provision of services / performance of work, temporary provision for use, etc. However, only those heirs that are indicated by the testator in the will may execute them. No one else can realize these obligations!
Now, regarding the beneficiaries and the right to bequeath. There are the following features:
- The obligation is fulfilled by the heir only in relation to persons whom the testator personally mentioned in the document as consignee.
- The next moment. The testator has the right to prescribe the condition for the appointment of a different addressee of the debt, if the original beneficiary passes away simultaneously with the testator or before the opening of the inheritance.
- Another feature with regards to the person that can qualify for the legate. The testator is entitled to appoint another citizen as a receiver, if the original waives the right to legate, does not take this opportunity or is deprived of it due to the indicated conditions.
These are the subtleties of fulfilling this obligation.
Legacy
The right to a testament refusal shall apply to the creditor specified in the will for 3 years from the date of the death of the testator. That is, from the moment of opening the inheritance.
By default, such a right is not considered transitional - it cannot be redirected from one person to another. Unless, of course, the testator did not register such an opportunity.
Legate Volume
Another feature of how the right to a testament refusal acts. The heir to the creditor may fulfill his obligations only to the extent of the value of the property, which has passed to him under this will.
The valuation of this property is calculated taking into account the following expenses of the recipient of the hereditary share:
- Associated with the death of the testator - the organization of a funeral, other funeral services.
- Rastrat, aimed at protecting inherited property.
- All expenses that went to pay off the debts of the deceased.
Obligatory award to the heirs of the property shares assigned to them precedes the satisfaction of the rights of the consignees. And another nuance. The heirs in relation to each other will be joint debtors. This means that each of them is only responsible for their obligation. Unsatisfied with one recipient of the inheritance, the legate cannot cause claims to the other heirs.
Getting a relying legate
If you are interested, for example, in the use of residential premises by testament, then first of all you need to contact a notary public who conducts the testator’s hereditary business.
You must present to the authorized person documents that would confirm your status as a consignee. In addition, you must fill out an application where you indicate your desire to use your own right to receive a legate.
Use of premises within the framework of the legate
Additionally, consider this option for the fulfillment of obligations by the heir. The right of the consignee is governed by Art. 1137 of the Russian Civil Code. For the heir, this is due to the restriction of his rights to property received by will.
We turn now to Art. 33 Housing Code. This act gives the recipient legate a full right to use the premises during the period that is prescribed by the testator in the will. That is, the new owner (heir) does not have the authority to evict the consignee from the house, apartment, or obstruct his residence.
If the heir decides to sell the property received, this does not affect the position of the legate. That is, the contract of sale must include the condition that the new owner should not interfere with the rights of the borrower to live within the allotment of the property allocated to the testator. It prescribes all the same art. 1137 Civil Code.
As soon as the period indicated by the testator for the use of the legate expires, the recipient of the latter loses his rights to operate the premises. If such terms are not set, the consignee may thus be in the house or apartment for the rest of his life.
When a resident of a legate is a competent person, he is obliged to bear common responsibility with the owner for housing. What does it mean? These citizens share among themselves all the costs associated with the maintenance of property. The parties can also conclude an agreement between themselves, which will differently distribute their rights and obligations in relation to housing.
The legislation also provides a testament to residents living in an apartment the possibility of state registration of their right to use residential "squares".
Is it possible to evict from the inherited residential property of the consignee? Yes, the heir also has such an opportunity. It is regulated by Art. 35 Housing Code. Note that we need good reason for the court to put such a decision into practice.
Now you know about all aspects related to testamentary denial - its designation, the right to legate, performance. It is important to distinguish it from a similar concept - testamentary laying.