Any person has the right to draw up a will through a notary. It contains instructions regarding the distribution of one's own property. It can go not only to relatives, but also to other people and companies that the testator deems necessary to mention. However, what to do if the heir under the will dies?
Mainly, the answer to this question depends on the moment of death of the person. If the person for whom the will is executed dies before the testator, different rules for the transfer of property apply.
When the claimant for the property passes away after submitting documents to the notary, there is another mechanism for inheriting the corresponding share. Therefore, all the important details will be revealed by the proposed material.
General principles of wills for property
Any capable citizen has the right to bequeath everything he has acquired after death to third parties. The equality of the parts may not be observed.
During his life, a person can write several versions of a will. In this case, only the last of them will have legal force.
Almost always the declaration of will is certified by a notary. The exception is cases when the document is written in conditions of direct threat to life.
These include:
- military operations;
- a sharp deterioration in health;
- dangerous injuries.
Here, the legislation allows for the usual written form of a will with the obligatory signature of at least two witnesses.
A declaration of will regarding property is always drawn up by only one person. If it is issued on behalf of two persons (for example, from mother and father), everything stated in the text is legally invalid.
Sub-designation of an heir in a will
So, we are coming close to the situation when the heir under the will meets his death before the testator.
In this case, a person can indicate in his will the person who will receive the relevant property due to the death of the main claimant to the property. In legal terminology, this mechanism is called sub-appointment of an heir.
Art. 1121 of the Civil Code of the Russian Federation allows such actions to be taken in a will even when a person dies after the testator, but without having time to contact a notary. The above applies to situations where a citizen refuses an inheritance or is declared unworthy of it.
The procedure for entering into inheritance under a will
As already emphasized above, the notary does not search for heirs, except in cases where the list of recipients of the inheritance is known to him.
If the notary is approached by people who lay claim to the property of the deceased, but it turns out that the legal heirs do not receive anything due to the fact that a will was left, the notary takes measures to inform the persons specified in the will, whose contacts could have been left by the testator himself (or communicated notary by other heirs).
The persons indicated in the posthumous order will have to appear at the notary's office and write a statement of readiness to accept the inheritance.
It is important to remember that the composition of the inheritance can include not only property, but also the debts of the testator. In order not to pay for them, the only way is to refuse the inheritance
The person specified in the will can take just such an action if he considers that the composition of the proposed inheritance leaves much to be desired.
An application for acceptance or refusal must be written within six months from the date of opening of the inheritance (death of the testator).
If the person indicated in the will is a minor (a person under 14 years of age), then his legal representatives write the application for him, but if the person is between the ages of 14 and 18, he writes it himself, but with the consent of his legal representatives.
According to Art. 1153 of the Civil Code of the Russian Federation, you can accept an inheritance not only through a notary, but also in fact. This means that a person who knows from an open will that the only heir is himself can do without a notary, beginning to own and use the property of the deceased as his own.
However, this method has one very significant flaw - without a certificate, which is issued by a notary based on the results of consideration of inheritance cases, it will be impossible to dispose of some property.
Own and use, please, but there will be a problem with the disposal of real estate and transport, since the ownership of them is registered with government bodies (Rosreestr and the State Traffic Safety Inspectorate), and the owner, according to records in the databases, is still listed as a deceased citizen.
If you have a certificate in hand, there will be no problems; the owner of it can be changed, but if you do not have such a document, the only way to legalize the status of ownership of property is to go to court to confirm the relevant facts.
At the same time, it will still be necessary to prove that the inheritance was actually accepted, and only then the court will issue a decision that will confirm the rights to the inherited property.
This decision will have the force of a notarial certificate and according to it the change of owner will be carried out by the State Traffic Safety Inspectorate and Rosreestr.
It should also be noted that a will can be not only open, when the notary knows about its contents, and other people may know, but also closed, the contents of which are known only to the drafter himself and no one else.
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The envelope with the closed will is kept by a notary, who opens it after the death of the testator.
The envelope can contain either a real will or just an empty sheet of paper - the testator can do as he wants, either actually register the circle of heirs, or simply confuse everyone with the presence of an empty envelope.
What to do if the heir dies
If a deceased heir is named in the will, who will get his share? In practice, many testators do not burden themselves with the question of a successor in the event of the death of the main candidate. And the law does not oblige them to do this.
Therefore, if the corresponding clause is not made in the will, entry into the inheritance occurs in a different order.
It depends on when the person designated in the written will of the testator died. Let's consider several options.
The heir dies before the death of the testator
In this course of events, the property specified in the will passes to the relatives of the testator within the framework of the order of inheritance according to the law, including acceptance of the inheritance by right of representation.
They will be able to submit documents to a notary in the general manner.
This is the position of the Supreme Court of the Russian Federation (ruling dated July 5, 2011 No. 84-B11-3). The main thesis is that the property remains intestate. Moreover, the disputed share is not redistributed among the remaining beneficiaries mentioned in the will.
Note! The heirs of the person who was indicated in the will do not claim to receive a share of the inheritance of the deceased person, except in cases where a will is drawn up with a sub-designation of an heir (Article 1121 of the Civil Code of the Russian Federation).
The heir dies after the death of the testator, without having time to submit documents to the notary
In this case, the mechanism of hereditary transmission is observed (clause 1 of Article 1156 of the Civil Code of the Russian Federation). Within the framework of it, the share described in the will is distributed among the close relatives of the deceased person, also according to the scheme of inheritance by law.
Redistribution of property between the relatives of the testator is not carried out here.
In this situation, the property of a deceased person is inherited. Accordingly, the notary opens two separate inheritance cases.
The heir under the will dies after the death of the testator, having managed to enter into the inheritance
Let's imagine a situation where the death of an heir under a will occurs after the death of the testator, but the citizen was able to go to a notary and write an application for the opening of an inheritance.
In this scenario, the property specified in the will is added to the deceased person's property and is legally distributed among his legal successors - the direct heirs.
If there are two heirs in the will, one dies, who inherits
Again, everything will depend on the moment of death of one of the heirs. If he died before the author of the will, the second heir receives everything due to him.
The share of the deceased is distributed among the relatives of the original testator. In this case, the order of inheritance according to the law provided for by the Civil Code of the Russian Federation must be observed.
Rights of the widow of a deceased heir to inheritance
If the husband indicated in the will dies after submitting the documents to the notary, the widow's share is increased by the property that would have belonged to him after 6 months.
In addition, the assets of the deceased spouse are inherited along with his share in joint property (Article 11150 of the Civil Code of the Russian Federation). Along with the widow, his children and parents have the right to claim such property.
The widow of the person specified in the will has no right to inherit directly. This is due to the fact that in relation to the initiator of the will, the woman is not included in the circle of legal heirs.
However, this does not deprive her of the right to an obligatory share in the inheritance, provided that at the time of death she was a dependent of the person who bequeathed the property to her spouse. In practice, such situations are rare.
Children's rights
There are several options here. So, if the deceased heir was the son (daughter) of the testator, the children register the property specified in the will by right of representation together with other legal claimants.
Let us repeat, what has been said concerns the situation with the death of an heir before the death of the testator.
If a citizen dies after the death of the maker of the will, but without having time to contact a notary, the children inherit the prescribed share as part of the first line of inheritance by law. The same applies to cases where a person managed to accept an inheritance.
Parents' rights
Since they are the closest relatives in relation to the deceased heir, everything said above applies to the mother (father).
In particular, in relation to children, that is, inheritance according to the law also occurs within the framework of the first stage.
In what cases do the rules on hereditary transmission not apply?
There are two such prohibitions. The first concerns the right to an obligatory share in the inheritance.
By leaving a will, the testator thereby expresses his will to transfer his property to a specific person or several persons, and it does not matter whether the testator is connected by blood ties with such heirs or not. However, there are categories of heirs by law who have the right to an obligatory share in the inheritance even in the presence of a will
However, there are categories of heirs by law who have the right to an obligatory share in the inheritance even in the presence of a will.
These include minor or disabled adult children of the testator, his disabled spouse, as well as.
But it should be remembered that the right to an obligatory share in the inheritance does not pass through transmission. In other words, if a deceased heir during his lifetime had the right to an obligatory share in the inheritance, in the event of his death this right will not pass to his heirs through hereditary transmission (Article 1149 of the Civil Code of the Russian Federation).
Also, the right of inheritance does not pass to the heirs of the deceased heir by way of hereditary transmission.
In other words, if the deceased heir himself had the right of inheritance by way of hereditary transmission, which was not exercised by him during his lifetime, this right is not transferred by way of hereditary transmission to his heirs, since it is not part of the inheritance that opens after his death (Article 1156 of the Civil Code of the Russian Federation ).
Thus, the following does not pass through the order of hereditary transmission:
- The right to an obligatory share in the inheritance
- Right of inheritance by hereditary transmission
How to divide correctly
There are different situations in life. It happens that the shares of each person are not initially determined. Then an agreement on the division of the inherited property is drawn up. When preparing its text, several factors are taken into account.
Thus, a person’s right to own and dispose of property may depend on the extent to which he took part in its maintenance, protection, and operation. In addition, when signing an agreement, professional interests are also taken into account.
For example, if a person is engaged in private transportation, then it is clear that he will need the car he inherited first of all.
Agreements between receivers may involve providing other candidates with certain monetary compensation in return. Its size and payment schedule are also fixed in the agreement between the heirs.
Restoration of rights
Restoration of rights may only be possible under the following conditions:
- If there are rights to receive an inheritance by will, or by law, in addition, the basis may be a preemptive right. This must be indicated at length in the lawsuit.
- The claim must be completed correctly. It would be better to seek help from a lawyer; if this is not possible, then study several of the same ones as an example. A lot depends on how competently you fill out the statement of claim.
- In order for a claim to be accepted at all, a valid reason is required: leaving for work, a business trip, treatment in a hospital. If there is none, then the judge will not accept the application at all.
- A valid reason must be documented, that is, either a certificate from the place of work, or a certificate from a clinic, a passport with a visa, a military ID, etc. In general, it must be confirmed.
The consequence of missing the main deadline may be exclusion from obtaining rights to property. Which can only be returned with a positive court decision.
Deadlines and documents
If the heir under the will died before the date of opening of the inheritance, the relatives of the testator have the right to claim the part that would have gone to the deceased under the will.
Within six months from the date of death of the testator, they must contact the notary office at the place of his permanent residence.
In addition to the standard application and death certificates of the testator and heir, you will need:
- will;
- evidence of the existence of a relationship with the testator;
- documents on the property that would be due to the deceased recipient by virtue of a written will.
When an inheritance is accepted as part of a transmission (the deceased heir did not have time to come to the notary), the deadlines are calculated as follows.
If at the time of submitting documents half of the allotted time has already expired, it is extended to 3 months.
During transmission, since two cases are being conducted, 2 sets of documents are submitted to the notary. One of them concerns the share indicated in the will, and the second concerns the property of the heir himself.
When he accepted an inheritance before his death, he should contact a notary at the place of residence of the already deceased citizen. Six months are also allotted for this. In exceptional cases, this period may be extended by virtue of a court decision.
How does hereditary transmission work?
Here we are talking about the transmission channel. The article helps the heirs of the previous appointee to claim the “freed” share. Moreover, these can be both beneficiaries under the will and legal successors. They claim a part of the inheritance on the same basis for all.
The specificity of the reassignment of a free share is its transfer to a single existing heir or several heirs. In the second case, the size of the share per person is reduced in proportion to the number of applicants. The exception to the transfer of such a part of the inheritance is the status of the share as mandatory (assigned to dependents regardless of the will).
In law
Legal order presupposes the existence of a sequence, that is, a sequence in which the relatives of the deceased line up to claim their share. The number of queues is 7. Those who are not included in any of these groups are considered to be outside the queue (if they have the right of inheritance). The movement from the beginning to the end of the sequence is parallel to the decrease in kinship with the deceased.
The obligatory share, the right of representation and the transmission line are reasons to consider a person out of turn. The difference lies, for example, in comparing the first candidate with the remaining two. The mandatory allocation of a share diminishes the scope of the rights of other participants in the inheritance case. And the remaining 2 points imply the replacement of one heir with another or several.
Distribution of property in accordance and in order
The specificity of the order of priority is that the transition to each of the categories of heirs occurs in the absence of representatives from the previous ones. That is, only candidates from one of the current queues can be called up for inheritance at a time. Within the boundaries of the first is the spouse of the deceased, his children or mother/father.
The second category includes brothers and sisters, then uncles and aunts, etc. Accordingly, applicants, through the right of representation or a transmission channel, acquire their status exclusively in the event of the death of an already called subject (and not in one of the categories to which the turn has not reached ).
By will
The current ways of replacing a person called to inherit and who has died untimely are transmission and sub-appointment. Replacements come from people who are either listed as such in the will or are not there. In the second case, the author of the will may, in principle, be unfamiliar with them.
Transfer of property to persons specified in the will
The right of representation within a will is prohibited. Of the remaining legal methods, subassignment becomes the more pressing here. It means the testator independently determines a replacement for the heir under the will if he dies earlier (without entering into the inheritance). Such a clause is added to the will at the request of the author.
Cancellation of a will with 1 heir after his death
If it is implied that there are no substitutes within any legal path after the death of the sole successor, then the inheritance becomes escheat. However, it cannot remain without an owner. In the absence of physical or legal applicants, it goes to the state represented by federal or municipal bodies.
Non-standard situations
Some objects are inherited in a separate order. This applies to corporate rights and other types of property.
Accordingly, the legislation prescribes some exceptions to the rules. Let's look at this in more detail.
Inheritance of business, shares in LLC
It occurs by including the heir(s) among the participants of a particular company.
However, other founders may not agree to accept new members into their ranks. Alternatively, the successors in interest are paid the value of the deceased member's contribution.
To do this, you should study the constituent documents, accounting and other reporting. An independent examination may also be needed to establish the actual value of the deposit at the time of registration of the inheritance.
Mandatory share
If there is a will, then it is assumed that there is a mandatory share in the inheritance. Disabled relatives and dependents of the author of the will can claim it.
In a situation where one of the heirs dies before the opening of the inheritance case, the property due to him does not participate in determining the obligatory share.
Escheat
It refers to the property that has been transferred to the municipality.
Property acquires the status of escheat if there are no heirs at all or all of them have refused to formalize their rights. Then the apartment, house, and other assets are transferred to the balance sheet of the administration of the corresponding locality.
When the receiver has missed the time to enter into a real estate inheritance, it is recommended to pre-order an extract from the Rosreestr for the property. It is possible that it is already under the jurisdiction of a city or town.
Lawyer's recommendations
The death of an heir who did not have time to declare his rights often confuses relatives who do not know how to divide the inherited property. Therefore, in such a situation, the best solution would be to contact a lawyer. He will be able to quickly sort out the problem and advise what should be done so that the law is not broken.
Not every citizen can quickly understand all the subtleties and nuances of inheritance after the death of the first applicant; in addition, one has to deal with claims from other relatives who also lay claim to part of the property of the deceased. An agency specialist will help you quickly resolve all legal issues and protect your rights.
Typical questions on the topic
For many fellow citizens, entering into an inheritance causes some difficulties. Therefore, below we have collected answers to the most pressing questions related to the topic of this article.
My mother died, who was included in the will of my still living grandmother. Can I inherit now?
In your case, you will be one of the heirs to your mother’s share prescribed in the will. However, all necessary actions should begin after the death of the grandmother.
As for the mother’s personal property, you can begin to arrange it now.
How to check whether a relative has drawn up a will
Many people today do not include their surroundings in their property plans. Therefore, the existence of a will may come as a surprise.
To ensure the availability of a document after the death of a relative, it is enough to make a request to the notary chamber of the region where the deceased person was registered. There is also a Register of Inheritance Cases, which contains the necessary information.
It contains information about all actions performed by notaries (including certification of wills).
Rules of inheritance upon death of an heir
If an heir under a will dies, then his part goes to close people. But the forms of redistribution of shares depend on the time and circumstances of the death of the successor:
- died before the death of the testator;
- died on the same day as the testator;
- died after opening the will without accepting the inheritance;
- entered into an inheritance before his death.
In Russia, inheritance is transferred in two ways - by will and by law. The documented will of the deceased takes precedence. Its exact execution is violated only by the presence of obligatory heirs, whose interests were not taken into account.
When there is no will or is declared invalid, a law comes into force requiring that the inheritance be distributed among legal successors of the same degree of kinship. Direct heirs are parents, spouse and children (also adopted children).
If an heir under a will dies before the testator, then the testator has the right to indicate in the document another candidate to whom the rights of the deceased will be transferred (Article 1121 of the Civil Code of the Russian Federation). Then the second candidate turns to the notary and inherits according to the usual procedure. But not everyone does this.
Example: Elena Vasilievna bequeathed a house and land to her nephew and appointed her own sister in the event of his death. And so it happened - the sister inherited the property.
The day of opening of the inheritance of the Civil Code of the Russian Federation determines the date of death of a citizen or recognition of such a fact by the court. From now on, candidates for possession of his property have the right to apply in writing to the notary's office near the last address of the deceased and declare rights.
In the expression of will, the author has the right to indicate those persons whom he does not want to see among the legal successors under any circumstances. If a court decision recognizes a person as an unworthy heir, then he is also excluded from the list of applicants for the inheritance (Article 1117 of the Civil Code of the Russian Federation).
The heir dies before the testator
If an heir under a will dies before the testator, then his share is not transferred to those who are also included in it. This part of the inheritance is considered intestate and, by law, goes to representatives of the first stage or subsequent degrees of kinship (Articles 1142-1145 of the Civil Code of the Russian Federation).
Example. Vera Petrovna died, bequeathing her apartment and car to her husband and his son from his first marriage. The husband died shortly before his wife and her will remained unchanged. Vera Petrovna's closest relatives are her mother and father. They will share among themselves the share that their son-in-law would receive. The second part goes to the husband's son.
After the death of the son or daughter of the testator, the inheritance mass is transferred to the grandchildren by right of representation (Article 1146 of the Civil Code of the Russian Federation). For example, Zakhar Pavlovich died before the death of his father Pavel Vasilyevich, who bequeathed all his property to him and his brother. Zakhar Pavlovich is survived by a son and daughter, who are the deceased’s grandchildren. They receive the inheritance instead of their father, along with their uncle.
The heir died without making a will
The citizen died soon after the person who included him in the will, but did not have time to enter into an inheritance after 6 months allotted by law. Then the hereditary transmission begins to operate (Article 1156 of the Civil Code of the Russian Federation).
The rights to the property of the deceased are transferred to legal successors both by will and by law. When death overtakes a citizen less than 3 months before receiving an inheritance, then for his legal successors the period is increased by another 3 months, then by a court decision (Article 1155 of the Civil Code of the Russian Federation). The paperwork is completed as usual.
Example. Pavel Stepanovich planned to leave the house and car to his brother Oleg Stepanovich. But he died 4 months after him. Oleg Stepanovich was left with two sons, to whom he, in turn, bequeathed his property in his will. His children turn to a notary and open two inheritance cases.
The obligatory heirs of the deceased are not owed anything (Article 1149 of the Civil Code of the Russian Federation).
When a person has managed to enter into an inheritance, having received a notarial certificate, the acquired property is inherited by the successors in the manner provided for by Russian legislation.
The heir died at the same time as the testator
When a person written in a will passes away on the same day as the testator (death on the same day is considered simultaneous), then they do not transfer the inheritance from one to the other. Close people open separate inheritance cases with a notary and receive what is due to them by law or included in the wills of the deceased (Clause 2 of Article 1114 of the Civil Code of the Russian Federation).
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Example. A childless husband and wife crashed in the mountains. Each wrote into each other's will. Then the wife's inheritance will be received by her parents, and the husband's - his.
