The execution of a will is carried out by specially appointed people

Legal characteristics of the institution of execution of a will

Unlike other institutions of inheritance law, the execution of the last will expressed by the testator is not widespread and cases when an executor is involved in its implementation are extremely rare. This state of affairs is justified by the fact that until recently legal relations arising in the implementation of property rights were not given due importance, which negatively affected the development of this entire area.

In Soviet times, the making of a will implied an order left by the testator in the event of his death in relation to the property, the ownership of which arises only after state registration. The subjects of the bulk of certificates of the right to inherited property were real estate, vehicles and cash deposits. If the order was drawn up by the testator in relation to a certain thing, it, as a rule, was its subject.

In addition, there was no need to appoint an executor of the last will expressed by the testator due to the following reasons:

the estate did not include property that required additional protection and management;
the order in case of death did not concern objects of special significance and value;
controversial issues regarding the division of property between heirs, as a rule, did not go beyond the limits of peace agreements;
Issues regarding the inheritance left by the testator were extremely rarely considered through judicial proceedings.

The concept of execution of a will

The concept of execution of a will is expressed in the implementation of certain actions of an actual and legal plan aimed at fulfilling the testator’s orders in relation to his property and property rights in the event of death. At the same time, in order to carry out the order left, it is allowed to use both actions provided for by the will and those not specified in it.

This concept is subject to interpretation from the formal and material side. The formal aspect is expressed in the notarial actions of the certifying person, such as calling heirs to enter into an inheritance, explaining to them their rights, providing title documents for inherited property, and the like. The material side of the issue lies in the actions of specific individuals aimed at executing the will in accordance with its contents and reimbursement of expenses.

Testamentary disposition

The testator has the right to dispose of his deposit in a bank or funds located in another account in any bank by drawing up a document separate from the will - a testamentary disposition (Article 1128 of the Civil Code of the Russian Federation).

This procedure is carried out in any bank, the order has the force of a notarized will, subject to the following conditions :

Signing by the testator in the bank with his own hand, indicating the date of its preparation.
Certification by a bank employee entitled to such certification in accordance with his official duties.

All rights to funds in respect of which the testator has made a disposition are included in the estate and are inherited on a general basis .

Funds are issued to heirs solely on the basis of the certificate of inheritance and in accordance with it, with the exception of expenses for the funeral of the testator.

Methods and procedure for executing a will

The testator's disposition is carried out in accordance with the rules set out in Art. 1133 Civil Code of the Russian Federation. However, according to the Plenum of the Supreme Court of the Russian Federation, these rules lose their relevance in the following cases:

invalidity of the will;
refusal of all heirs to enter into the inheritance;
death of all heirs and lack of hereditary transmission;
if the will of the testator is implemented by the executor.

Methods and procedure for executing a will:

ensuring the protection and management of inherited property with subsequent reimbursement of expenses;
collection of debts from the debtors of the testator;
ensuring the transfer of inherited property to the heirs with satisfaction of their rights and interests;
repayment of the testator's accounts payable, if any;
ensuring the execution of testamentary refusals and assignments.

When appointing several executors, the testator must determine their powers regarding the implementation of each clause of the will, as well as establish the procedure for reimbursement of expenses. If this has not been done before the opening of the inheritance, the executors have the right to distribute among themselves the responsibilities assigned to them independently. In the second case, the activities of the executors, aimed at implementing one or another point of the order, will be regulated by Art. 321 Civil Code of the Russian Federation.

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.

The meaning of executing a will

With the development of a market economy, the level of legal awareness of citizens has rapidly increased, as a result of which the importance of this institution has acquired particular relevance. Thus, when making a will, the subject of which is property of significant value that requires protection and management, more and more testators are thinking about how and by whom their disposition will be implemented after the opening of the inheritance. In addition, problems may arise if the circle of heirs includes persons who do not have the necessary legal capacity to implement the will of the testator. It could be:

1. A citizen recognized by a court as having limited legal capacity.

2. Incapacitated citizen.

3. Minors. An exception to this rule is for minors who have acquired full legal capacity through marriage or emancipation.

Since the main purpose of a will is its execution, the legality of such an action and its compliance with the contents of the will play a decisive role in acquiring rights to inheritance. The testator's disposal of his property through the execution of a will is carried out for the purpose of its implementation after the death of the latter.

Basic requirements and procedure for appointing an executor of a will

The rules established by Art. 1133 of the Civil Code of the Russian Federation, they say that every citizen can entrust the execution of his order in the event of death:

heir under a will;
to the executor.

If in the first case there are no problems with identifying the persons to whom the testator entrusted the execution of his order, then with regard to the executor, the requirements that a given citizen must meet, and the procedure for his appointment, a lot of questions often arise.

The executor of the testator's last will rightfully occupies a fundamental position in the entire institution of execution of a will, while being the guarantor of the implementation of each of its clauses.

The person who can be entrusted with executing a will must have the necessary legal capacity.

According to Art. 1134 of the Civil Code of the Russian Federation, the executor of the last will of the testator can be any citizen, both included in the circle of heirs and not, appointed to carry out his will directly by the testator himself. In addition, one of the main conditions for the appointment of an executor is his consent to perform this function. Lack of consent releases a person from the duties assigned to him. A citizen appointed as an executor can express his will both during the life of the testator and after his death.

According to the Civil Code of the Russian Federation, the release of the executor from the implementation of the order after the death of the testator, as well as other problems arising during the execution of the will, is carried out in court and on the basis of valid reasons from the point of view of the law. The applicant can be either the potential executor himself or one of the heirs.

The rules of the Civil Code of the Russian Federation state that a person’s consent to become an executor can be expressed as follows:

handwritten entry of the appropriate inscription into the contents of the will;
providing a corresponding statement along with the will;
confirmation of consent to fulfill the will of the testator by filing an application no more than a month after the death of the testator;
actual execution by the executor of actions to implement the testator’s order within one month from the date of the testator’s death.

The consent of the person to execute the will is mandatory.

In accordance with Art. 1135 of the Civil Code of the Russian Federation, the executor of the last will of the testator is endowed with a number of powers, the presence of which is certified by a special certificate. The document is issued to the executor by the notary who certified the will.

Testamentary refusal and testamentary assignment

The testator may oblige the heirs to fulfill in favor of one or more persons - legatees - any obligation of a property nature (Article 1137 of the Civil Code of the Russian Federation).

Legatees have the right to demand that the heirs or/the executor fulfill the obligations expressed in the will. A testamentary refusal must be expressed in a will.

The subject of a testamentary refusal may be:

Transfer of ownership of any property to the legatee.
Transferring ownership of any property right to the legatee.
Acquisition for the legatee and transfer to him of property that is not part of the inheritance mass.
Performing any work for the legatee, providing any type of service.
Making periodic or one-time cash payments in favor of the legatee.

Example

The testator has the right to oblige the heir to whom the property (house, apartment) is transferred to provide housing to the legatee for a certain period or without a period and on certain conditions (indicating the area occupied by the legatee, floor, compensation or gratuitous provision).

When selling or otherwise transferring ownership of real estate, the rights of use of the legatee are retained to the same extent.

The property right to receive a testamentary refusal has a period of three years from the date of opening of the inheritance . This right belongs exclusively to the legatee named by the testator and cannot be transferred to third parties.

The testator has the right to provide for the possibility of replacing the legatee with another in the following cases:

The death of the first legatee simultaneously with the testator or before the opening of the inheritance.
Refusal of the legatee from the inheritance.
If within three years from the date of opening of the inheritance the legatee does not exercise his right to receive a testamentary refusal.
If the legatee loses the right to receive a legacy.

It is possible to lose the right to receive a testamentary refusal if the subject of the refusal was the performance of any work or provision of a service in favor of an unworthy legatee. If the work has already been completed or the service has been provided, the unworthy legatee is obliged to compensate the heir for the cost of the work performed or service provided (Article 1117 of the Civil Code of the Russian Federation).

Information

An unworthy legatee is a person who, by his deliberate, illegal actions directed against the testator and/or heirs or against the implementation of the last will of the testator, contributed or attempted to encourage themselves or other persons to be appointed as a legatee.

These circumstances must be confirmed in court, i.e. there must be a court decision or sentence that has entered into legal force.

If the testator did not provide for a replacement legatee, and the above circumstances occurred, then the heir obligated to fulfill the legacy is released from his obligation .

The heir executes the legacy within the value of the property received under the will minus the debt obligations of the testator. If a will is entrusted to several heirs, then each of them executes the legacy in proportion to his share in the received property.

The testator may oblige the heirs and/or the executor to perform any public action - a testamentary assignment (Article 1139 of the Civil Code of the Russian Federation). It can be of a property or non-property nature. Such actions must be aimed at achieving a generally beneficial goal.

Such an obligation is assigned to the executor of the will if a mandatory condition is met - the allocation of part of the property from the inheritance mass for its execution.

The purpose of a testamentary assignment may be the maintenance of domestic animals, supervision and care of them in the manner and under the conditions determined by the will.

Important

The heirs or/the executor of the will have the right to demand execution of the testamentary assignment in court . It is mandatory for execution along with other expressed will of the testator.

In the event of the death of the original heir, the obligation to fulfill the testamentary refusal or testamentary assignment passes to the other heirs along with the share of the original heir (Article 1140 of the Civil Code of the Russian Federation).

Executor's rights

The list of rights and obligations of the executor of a will is regulated by the contents of the will and the Civil Code of the Russian Federation.

In accordance with Art. 1136 of the Civil Code of the Russian Federation, the performer has the right:

for reimbursement of expenses incurred in connection with the fulfillment of the obligations assigned to him. Such expenses include payment for the services of the BTI, appraisers, work of the manager and other payments;
in order to carry out the testator’s order, apply on one’s own behalf to government departments of the executive branch, government agencies and judicial authorities;
receive remuneration for your work, if provided for in the will. In addition, attention should be paid to the fact that a citizen who has executed the order of the testator cannot demand remuneration that exceeds the estimated value of the inherited property. The same rule is used when reimbursing expenses associated with the execution of the last will of the testator.

Reimbursement of expenses is carried out through inheritance.

Remuneration (Article 1136 of the Civil Code of the Russian Federation)

The work of the executor is paid by the heirs. The testator must understand this when drawing up the text of the will. It is advisable to include an executor in the process of distributing the inheritance when the inheritance requires constant care that the successors will not be able to provide.

The role of executor of the will must be paid, even if someone from among the heirs was invited to play this role. The size and amount of the remuneration is indicated by the testator (most often it is a percentage of the price of the inheritance or some valuable thing. The fixed amount specified when drawing up the will may become irrelevant by the time of the author’s death).

If the testator has not specified the amount and form of payment of the fee, the executor can only demand compensation for damages.

Execution of a will: problems of implementation

The main problems with the execution of a will that arise after the death of the testator:

disputes regarding the distribution of inherited property between heirs. To avoid this problem, the execution of the will is carried out in accordance with the court decision. An executor of the will may be appointed as a judge if this was not done by the testator before the opening of the inheritance;
the demand of the heirs to release the executor appointed by the testator from performing the duties assigned to him;
reimbursement of the executor's expenses related to the execution of the will;
if the citizen appointed as executor of the will refuses to execute it.

The problems presented are not exhaustive.

Controversial issues regarding the execution of a will made by the testator, as well as reimbursement of expenses, are considered in court.

This can be avoided by drawing up peace agreements.

According to the Civil Code of the Russian Federation, the number of persons who have the right to control the execution of a will and reimbursement of expenses includes the heirs and the executor of the will. If a citizen does not have the necessary powers to exercise his right, his interests are represented by his parents, guardians or trustees.

Author of the article

Who are executors

The executor is the executor of all the points listed in the will. He is appointed by the author of the will in the text. However, when making an appointment, the following rules must be taken into account:

Only an adult person with legal capacity can be appointed as an executor;
He must be aware of the appointment and express his consent by signing the will. If there is no such signature, within a month from the date of promulgation of the will, the potential executor must submit written consent to the notary;
Officially, a person becomes an executor after receiving a document from a notary public documenting the assigned responsibility.

Usually, either a citizen from among the legal heirs, relatives, or a very close friend, or a professional lawyer is invited to this role. If the person designated as executor in the will does not want to fulfill the obligations, only the court can revoke this will. The reasons for leaving the role of executor must be compelling.