Execution of a will: cancellation, modification, interpretation, execution

Executor of the will

By appointing an executor, the testator guarantees that all conditions, orders and requirements specified in the will will be fulfilled. This concerns the factual and legal aspects of the entry procedure. Execution of a will is the carrying out of the above exactly as stated in the document. That is, the executor is a “controller” who makes sure that the will of the testator is truly the decisive factor in the distribution of the inheritance.

The execution of a will concerns the formal and material aspects of the procedure for accepting an inheritance. By formal we mean notarial acts of calling all persons whom the owner appointed as successors during his lifetime. They need to clarify their rights by providing probate documentation for their review. The material aspect concerns the fulfillment of special conditions and reimbursement of expenses, including if such a development of events is provided for by the content of the document.

Execution is understood as a set of measures, actions, activities aimed at transferring inherited values to those indicated in the written expression of will. The manager accepts more responsibilities than rights, and for this he receives a monetary reward (fee), which is taken from the funds of the deceased.

Execution of debt obligations

Every potential testator needs to understand what may constitute his or her estate. In addition to material benefits, the heirs of the testator assume the burden of his credit obligations.

Regarding the debts left by the deceased, the situation is somewhat different.

The executor is not obliged to deal with settlements with the testator's creditors. This responsibility is fully assigned by law to the heirs who have entered into inheritance rights and declared their rights. In accordance with the law, the heirs are jointly and severally liable for the debts of the testator.

Individuals and legal entities who provided lending services to the testator during his lifetime by law have the right to present their claims to the executor before accepting the inheritance.

In relation to heirs, claims are made within the limitation period.

Procedure for executing a will

In modern legal practice in Russia, the execution of a will as an institution has been forgotten in vain. It includes:

Cost-reimbursable inheritance management.
Collection of receivables from debtors.
Guaranteed transfer of inheritance to recipients.
Payment of debts of the testator for obligatory payments.
Ensuring unquestioning execution of refusals and assignments.

That is, the execution of a will is a set of measures aimed at implementing the will of the testator while preserving the interests, rights and freedoms of the successors.

Testamentary refusal and testamentary assignment

In the literal sense, denial of inheritance is not provided. The so-called legacy is a unilateral transaction, under the terms of which property assets are transferred to the heirs under certain conditions expressed by the will-maker in the will. Execution entails the implementation of actions; otherwise, the rights of inheritance become void. Indirectly, a legacy can be considered a refusal, since the execution of the will automatically deprives relatives of property if they are not indicated as successors.

By assignment it is necessary to understand the procedure for executing a will, when the successor undertakes to perform certain actions that fall into the category of generally beneficial ones. From this perspective, the will of the owner may be to impose obligations:

take care of pets;
care for dependents;
do not rent out the apartment;
organize a museum in the house;
make information available, etc.

In any case, we are talking about lifetime orders that must be strictly executed in order to become the owner of the property listed in the will. And the performer monitors the correctness of their implementation.

Testamentary disposition

The value of this document is limited to the subject of inheritance. This could be a deposit or a savings deposit. The concept and meaning of the execution of a will in this vein involves the transfer of funds to the heirs if the amounts are kept in bank accounts. However, the text of the will and the actual amount may differ. At the time of execution, the account may be reset to zero, although at the moment when the document was drawn up, there was a lot of money on it.

In any case, the remaining funds are distributed in accordance with the requirements of the testator. But do not forget that jointly acquired property belongs to both spouses. Each subject of the execution of the will disposes of his own share, i.e. half. Also applicants may be:

minor children;
disabled parents;
dependents who are not physically able to work.

These categories of subjects are obligatory heirs, and for them the execution of the will is carried out primarily, regardless of the conditions specified in the text.

Reimbursement of expenses for the execution of a will

Compensation for execution costs is not the first payment. First, you need to pay for the funeral, and if the deceased was sick, then the costs of staying in a medical institution. The performer will receive the money only after completing the assigned mission. Depending on the method and procedure for executing the will, expenses associated with the need are distinguished:

trust management;
protection of inherited property;
payment of the performer's fee;
implementation of a testamentary refusal;
implementation of the testamentary assignment.

Since the inheritance case lasts six months, it is required that the valuables are safe. Security involves the transfer of funds, which is also taken into account when calculating costs. In this case, payments should not exceed the value of the property received until the accounts payable are repaid.

First of all, money is taken from the deceased’s accounts (savings, deposit). But access to them is possible only on the basis of an appropriate certificate or testamentary disposition.

Reimbursement of the executor's expenses incurred in connection with the disposal of property

When considering the issue of mutual settlements, the consideration or gratuitousness of the executor’s activities is decided directly with the testator. This applies specifically to the remuneration due to the executor of the will. In addition, this also implies possible waste on his part when carrying out legal and other actions to ensure the will of the deceased.

Reward for work done

Remuneration to the executor may also be paid from the estate if such a condition appears in the text of the will. Taking into account the composition of the inheritance, this includes both property and various assets (bank deposits, accounts, shares, etc.). Mutual settlements outside of a will are decided mutually at the request of the parties to the legal relationship (oral or written agreement).

What does it mean to execute a will?

The law defining this concept is the Civil Code. In particular, Article 1133 stipulates that the execution of a correctly drawn up will is the natural duty of the heirs specified in the document. This refers to the need to take ownership. However, the obligation is not such in its pure form, because you can refuse property left after death at your own request without giving reasons.

The same article states that third parties – executors – can be engaged to carry out the necessary actions under the will. The importance of the manager is to exercise control over the unconditional fulfillment of the conditions specified in the document with absolute accuracy.

Interpretation of the will

Interpretation of the will, according to Art. 1132 of the Civil Code of the Russian Federation, implies a literal understanding of the testator’s instructions left in the document. A notary, court or executor of a will must also focus on the general meaning of the document and the meaning of its individual parts. If there are several possible interpretations of individual paragraphs, they are considered in conjunction with other sections of the document . Execution of the will of the deceased is possible only after the essence of his orders has been determined.

Who is the executor of a will?

The legislation imposes minimal restrictions on the circle of persons entitled to become a manager. The main thing is that the recommended person is:

Adult . Those who were under 18 years of age at the time of death cannot use the rights acquired.
Capable . Even temporary deprivation of this status does not allow you to perform the functions of an executor.

An incompetent citizen is a person suffering from mental or nervous disorders, which does not allow him to objectively perceive reality and adequately respond to what is happening.

The method and procedure for entering into inheritance do not matter. The bailiff can be a person from the list of heirs, relatives, as well as a third-party citizen. Moreover, the will must specify the data and powers within the framework of the execution of the will. And in the event of the death of the performer or refusal of the assigned powers, you can play it safe by indicating a sub-appointed manager.

Rights and obligations of the executor

The laws do not establish specific restrictions. The full list is large, and can be obtained from lawyers as part of a free consultation. But Article 1135 of the Civil Code of the Russian Federation states that the executor must:

Personally control or even carry out the execution of a testamentary refusal/assignment.
Include all objects (including rights of claim) in the inheritance account, if this is provided for by the contents of the will.
Transfer all due material benefits to the heirs upon expiration of the inheritance matter.
Ensure the safety of the inherited estate during the period of notarial proceedings on the distribution of inheritance.
Manage the property of the deceased within the framework of execution until the re-registration of ownership.
Receive due payments not included in the will in order to transfer them to legal successors.
Participate in legal proceedings if a conflict of interest arises among successors in law and will.

It is important to understand that performance is not an obligation in its pure form. The procedure is carried out voluntarily, although the reward for the performer is assigned and cannot be challenged.

Is it possible to specify conditions in a will?

The legislator has provided for the possibility of drawing up a will with a condition.

Condition options:

testamentary refusal (fulfillment of a property-related obligation);
testamentary assignment (fulfillment of a property or non-property obligation aimed at generally beneficial purposes).

Providing a room in the testator's apartment for his mother to live in is a testamentary refusal, and taking in his animals is an assignment.

Important! The testator's demands must not go beyond the law. Otherwise, such an order may be declared invalid.

Example. Citizen K. made a will. The document stated that his son was entitled to a share of the property if he turned 18 years old at the time of opening the inheritance. If the child does not reach the age of majority on the day of the father’s death, then the property goes to his mother.

As you can see, the testator’s condition is related to objective events. There are no grounds for challenging such a will.

Example. Citizen K. made an order. The property was to go to his daughter. The condition for entering into an inheritance is obtaining a higher education. The condition is suspensive. Several years may pass between the opening of an inheritance and receiving a diploma. Therefore, the testator can appoint an executor of the will, who will ensure the safety of the property until the specified event occurs. The executor may be a wife, brother, or legal entity.

Certificate of authority

The most important condition for execution is the determination of the terms of reference. For this purpose, a notarized certificate is issued, which stipulates:

The basis for the emergence of the rights and obligations of the manager.
List of inherited property specified in the will.
List of heirs indicating their shares and special conditions.

In this case, it is not necessary to list those points that are prescribed in the articles of the Civil Code. If the list of powers is incomplete or absent, the legislative act is the main one in determining the procedure for executing the testamentary will of the deceased.

Procedure and deadlines for execution of orders

After the death of the testator, the notary opens an inheritance case, within the framework of which:

The contents of the will are announced.
A hereditary mass is formed.
Successors are called.
Inheritance items are distributed.
Heir certificates are issued.

From the day the inheritance is opened, the actual administrator is not the notary, but the executor. But this is only if you submit the appropriate application. 30 days are allotted to perform this function. During the same period, you can refuse to perform. Ignoring it leads to the same consequences. Then the employees of the notary office become responsible for preserving the will of the deceased.

Do not confuse the one-month period for filing an executor's application with the six-month period for execution when the will comes into force in a probate case.

Cancellation of a closed will

Cancellation of a will is a transaction aimed at terminating the legal force of a completed will.

There are 2 equivalent methods (Article 1130 of the Civil Code of the Russian Federation):

execution of a new declaration of will, replacing the old one and terminating its effect. If this is also cancelled, the previous one cannot be restored. The principle of fungibility applies if the second will covers property mentioned in the old one;
writing an order to cancel in whole or in part.

The new document is certified at any notary office. If the testator indicates a part of the property from the volume of the inheritance mass of the previous will, one should speak of an amendment, not an annulment.

The notary claims that the canceled deed cannot be opened and returned for the following reasons:

the document is part of the notarial office work;
possibility of use in the future by the court or in the inheritance process.

The notary's refusal to return the envelope can be appealed in court.

Certain types of orders

Testamentary disposition is one of the types of posthumous dispositions. This is a way to oblige the heir to make payments. The difference with assumed debts is that this obligation was imposed by the testator. The legislation specifies the following implementation features:

A citizen called to inheritance accepts the refusal only in the amount specified in the will.
In addition to property assets, obligations are also transferred in favor of a third party.
When the legatee dies, the successor is not obliged to carry out the terms of the legatee unless another arrangement is made.
In case of hereditary transmission as part of the execution of a will, the disclaimer conditions are not transferred.

If the recipient decides to refuse execution, the money can be claimed in court by filing a corresponding statement of claim.

A separate document is a testamentary disposition. Its execution concerns the amounts of money in the accounts of the deceased. After presenting papers proving the right to transfer values under a will, they can be used for your own interests. In this case, the manager will control that the will of the testator is preserved in full, and for this he is entitled to a reward, and the costs are compensated.

Reimbursement

Everything that is spent as part of the execution is reimbursed from the funds forming the estate under the will. In this case, the costs of funerals, management and preservation of property are borne by the successors in an amount proportional to their shares. There is a clear sequence:

Payment for funeral services and other expenses related to burial. The limit on the amount is up to 100 thousand rubles.
Repayment of storage costs. No more than 3% of the value of the inheritance is allocated to ensure the integrity and security of the inherited property.
Payments for performance. This includes all fees paid when completing the paperwork to implement the will.

The executor's remuneration is also included. All this is paid off first. Then the interests of creditors come into play. Ideally, the services of the administrator are paid from the money in the accounts of the deceased. But, if there are not enough of them, you will have to bear the costs out of your own pocket. The heirs pay the amount due, even if this means selling part of the property received under the will.

Refusal of duties as executor of a will

There is no mandatory enforcement procedure. If you do not write an application within a month and do not submit the document to the notary’s office, it becomes clear that the executor does not want to perform the functions assigned to him. Otherwise, the executor is vested with all the powers, rights and responsibilities that accompany the acquired status.

Reluctance to manage execution may be due to the presence of illness, remoteness of residence and other personal reasons. Even the court cannot force it.

But there is a procedure that allows you to refuse execution, even when the will is open and the statement is written. In this case, you need to submit another paper, indicating in the text the objective reasons for the refusal. We'll have to go through court. Only a court ruling removes accepted obligations. And the manager himself or the heirs under the will/by law can demand cancellation of the execution.

Procedure and conditions for reimbursement of material costs

Modern legislation of the Russian Federation and the norms of the current Civil Code of the Russian Federation do not establish an exact list of expenses that, without fail, will be subject to subsequent reimbursement. As legal practice shows, it is this point that often leads to disputes between the executor and the heirs of the testator, as well as other interested parties.

It is conventionally assumed that during the various expenses associated with the procedure for executing a will, an individual acting as an executor must show maximum conscientiousness and reasonableness.

Reimbursement of all material costs of the executor must be carried out exclusively from the property that belonged to the testator during his lifetime. Any demands aimed at compensation for waste of money at the expense of the heirs of the testator or other persons will be considered unlawful.

Any financial waste of the person who is the executor must be recorded and proven. The current conditions of the Civil Code of the Russian Federation suggest that in order to receive compensation, the executor must submit all documents confirming the expenses incurred. This may include:

receipts for payment of state duties;
travel tickets;
checks;
money orders.

Only in this way will the executor be able to legally demand compensation payments for the implementation of all necessary procedures related to the execution of the will.

If one of the relatives of the testator or other interested parties does not agree with this fact or believes that these expenses could have been avoided, he has the right to appeal to a judicial authority.

The statement of claim will need to indicate that the actions of the executor are wasteful and that the situation itself did not require the implementation of such costly measures to execute the testamentary document.

In addition, the subject of the claim may also indicate the fact that the actions of the executor did not represent the interests of relatives, but his own. But this statement will also be subject to mandatory proof, otherwise the court will not be able to defend the plaintiff and satisfy the demands presented by him.

Author of the article

How is a will executed?

If an executor is not named in the will, the heirs themselves are responsible for execution. They submit applications, receive certificates and re-register valuables. It is a different matter if the owner appointed a responsible person during his lifetime. Then the step-by-step instructions look like this:

If there is no corresponding handwritten entry in the will, an application is submitted to the notary office in charge of the inheritance case.
When the application was not attached to the expression of will, it is enough to begin the execution procedure, for example, pay for utilities and provide a receipt.

If there are circumstances that do not allow execution, the heirs or manager go to court. The terms of the will remain in force.

What is the procedure for making a will?

There is no need to explain the reasons for the decision to deviate from the procedure of execution according to the law, giving preference to a will. It is enough to appear in person to the notary. The presence of successors is optional. The deal is one-sided. The appearance of the executor is also not considered a requirement. But this can simplify the execution procedure after the terms of the will are announced.

The state fee is paid according to the tariff established by the notary. It is important that the text is written in your own hand. The items of the inherited mass and the contenders are listed. The shares must be clearly defined. In case the successor dies or does not consider it necessary to enter into the inheritance, sub-appointment is allowed. All conditions for the transfer of property that are binding are also indicated.

An incorrectly drawn up document loses its legal force. This means that it can be declared invalid (void). Challenging involves litigation.

The will is signed and notarized. Before this, the text is read out in front of two witnesses. The document is packed in an envelope, a copy is given to the testator. Subsequently, you can change the requirements if you make another will. When conditions intersect, the latter cancels the previous one. It is also important to clearly express the requirements so that there are no discrepancies in interpretation.

What does it mean to interpret a will?

This term refers to bringing clarity to the terms of a will if misunderstandings or ambiguities arise during execution. The interpreter can be a notary, administrator or lawyer. When opinions differ and the heirs cannot come to a common decision, you should go to the court at the place where the case was disclosed. It’s difficult to figure it out on your own, but a hired lawyer will bring clarity and help defend your interests.

The opinions and arguments of the successors have no legal significance. In most cases, minimal intervention from an attorney is required. For example, if the declaration of will contains insufficient details to identify the legal successor, you will have to provide evidence that the property has been assigned to this person. Here, the role of the executor is to confirm that the deceased wanted exactly this development of events.

Subjects of execution of a will

Even though the testator is already dead, protecting his interests is key. This is how the right to dispose of property at will is exercised. Therefore, a will is undeniable if drawn up in accordance with the law, which means the mandatory fulfillment of all the listed requirements and conditions. A separate category of subjects is heirs.

These are the persons to whom the inheritance is expected to be transferred (in whole or in part). Their rights are to accept or refuse property. The manager is an independent subject of inheritance law, although he may be one of the applicants under the will. This does not prevent you from receiving your due portion in addition to the remuneration during the execution process. The executor is responsible for ensuring that the will of the deceased is fully implemented.

Minor successors will not be able to personally inherit under a will. Instead, the subjects are parents or guardians.

Subjects of a special kind are obligatory heirs. These are minor children, disabled parents and dependents who support the deceased in the last year of life. They are allocated a share regardless of the presence of a will. The executor cannot ignore this fact in the execution procedure. To begin the property acquisition procedure, you must write a corresponding application.

Features of a closed will

Distinctive features characterizing the closed form of the document:

handwritten method of writing text, the use of technical means is unacceptable;
placing the paper in a prepared envelope and sealing it;
presence of signatures of 2 witnesses certifying the fact of transfer and sealing of the envelope;
The notary has no right to familiarize himself with the contents of the testamentary act.

Direct responsibilities of a notary:

inserting an envelope with the testator's order into another;
sealing;
indication of information about the testator, witnesses, time and place of execution;
clarification of the legal rights of participants in the procedure;
preparation of a receipt for acceptance of a closed will for storage;
issuance of a certificate to the testator.

The advantage of the document is its confidentiality. The transfer of the will is carried out in a sealed envelope, the information contained is hidden.

Notifying relatives about the preparation of the document is not the responsibility of the property owner. The notary maintains professional confidentiality; disclosure of any data is prohibited.

However, the inability to verify the contents of the document is the reason for making mistakes that lead to the nullity of the testamentary disposition.

A citizen with physical disabilities who is unable to express his will independently is limited in drawing up a closed type of act.