An apartment or other residential premises being inherited will be received by the heirs specified in the will or the heirs of the current order. Most often, shared inheritance : either a house or apartment is received by several successors, or the testator leaves a share of the joint property.
Residential real estate refers to objects that, if there are several applicants, are inherited as common shared ownership .
Property is considered joint if several people . For example, after the purchase of an apartment by spouses during marriage, after the privatization of housing by several family members. The testator, who owns a part of the common property, can only transfer this part to the heirs.
The procedure for registering an inherited apartment cannot be ignored. Only after receiving the relevant documents can the property be sold or passed on by inheritance without any problems.
Inheritance of a share in an apartment takes place on a general basis , that is, in the same way as the rest of the property in accordance with the Civil Code of the Russian Federation.
Concept and features of shared ownership
If indivisible property is taken into possession by several owners without a clear allocation of shares, it is considered common property (Article 1164 of the Civil Code of the Russian Federation). Such property may become shared property after the allocation of the shares of each heir or remain joint if the division does not occur (clause 2 of Article 244 of the Civil Code of the Russian Federation). Both options are legal.
Living space is an indivisible object , since division in kind will make it unsuitable for use. Therefore, it can only be in joint or shared ownership without physical allocation of shares.
The division of an apartment is possible only on paper, after which a regime for the common use of property for the heirs is established.
Regardless of the moment of obtaining the right to dispose of one’s share in the inheritance, the property is considered to belong to each of the heirs from the date of death of the testator (Clause 4 of Article 1152 of the Civil Code of the Russian Federation). This occurs provided that it is accepted by the heirs.
By share we mean the allocation of part of the inheritance in mathematical expression (fractions or percentages).
What is a share in an apartment or house
In accordance with Art. 244 of the Civil Code of the Russian Federation, property that is owned by several citizens is their shared ownership (in this case, the shares of each citizen must be determined, and if this is not possible, the property will belong to all owners in equal shares).
The Civil Code (clause 4 of Article 244) provides for the emergence of common property of several citizens, provided that this property is not divisible or by virtue of legislative norms. The rights to own shares in premises intended for residence are not prohibited by law. Therefore, shared ownership can arise on :
- residential property or part thereof;
- apartment or part thereof;
- room.
Citizens own such property on the right of common ownership and in accordance with the requirements of Art. 247 Civil Code of the Russian Federation.
Information
All owners of shares of residential premises have equally the right to live in residential premises, the right to move members of their families into it, to donate a share, to bequeath without obtaining any consent from other owners of shared ownership of this residential premises.
However, the owner of the share does not have the right to dispose of his property without the consent of all owners of shares in the residential premises (Article 246 of the Civil Code of the Russian Federation). So, for example, the owner of a share cannot, without consent:
- rent out residential space;
- settle citizens who are not members of their family;
- in some (individual) cases even alienate.
There are also nuances provided for in paragraph 2 of Art. 246 of the Civil Code of the Russian Federation, when selling a share, the owners of the remaining shares in this property have a pre-emptive right to purchase.
The emergence of shared ownership of an apartment or house
The heirs receive the right of common ownership of a residential property after the opening of the inheritance (clause 4 of Article 1152 of the Civil Code of the Russian Federation). They can continue to use it jointly without a legal division of shares, but they may wish to secure in the certificate of inheritance the parts due to each. Shared property will arise from the common property after the allocation of property to each of the heirs.
You can use a shared apartment after inheriting it without distributing shares. Then it will be considered that the living space is in joint ownership .
The allocation of shares from common property occurs by agreement of the parties on the basis of an agreement . If the heirs cannot reach a consensus in terms of the size of each share or the involvement of individual heirs in the process of dividing the apartment, interested parties should go to court .
The size of the shares of each heir is recorded in the certificate of inheritance.
Mandatory share in inheritance
Common ownership of a house or apartment may arise among several heirs , even if the housing was bequeathed to one of them. One of the reasons for this is the right of heirs to receive a mandatory share in the property left after the deceased person. Its size, recipients and other important points are enshrined in law, namely in Art. 1149 of the Civil Code of the Russian Federation.
A mandatory share is a part of the inheritance that will be received by close relatives of the testator in any case. Even if the inheritance occurs not by law, but by will, and they are not indicated in the document.
were under 18 years of age at the time of his death , or disabled adult children, as well as parents and spouses who are on an old-age pension or have received a disability.
The size of the obligatory share is established: it is no less than half of the property that the heir could claim as a legal share
If the testator bequeathed an apartment, but in addition to it there is other divisible property (bequeathed or not), the allocation of the obligatory share can occur from the latter.
The size of the share may be reduced or increased by agreement between successors or by a court decision. If one of the heirs lived in the apartment and used it, while not having other housing, the entire living space can be left to him (Clause 4 of Article 1149 of the Civil Code of the Russian Federation). The obligatory heir will receive a share of the remaining property in court, even if it is significantly less than what was originally due to him.
Example A. 87 years old, bequeathed an apartment to his ex-wife, from whom he divorced about 8 years ago. At the time of his death, A. was not married, his parents died long ago, his only daughter, 62 years old, is retired. According to the will, the heir has not lived in the apartment for a long time; there is no other property in the list of objects of inheritance. As a result of the fact that the daughter is a compulsory heir, common shared ownership of the bequeathed apartment will arise between the heir under the will (A.’s ex-wife) and the legal successor (his disabled daughter). By law, shares in real estate must be distributed as follows. Daughter A. is his only legal heir of the first turn; she would have received the apartment and all other property if there had been no will. According to the law, as a compulsory share, she is entitled to at least 1/2 of the housing, the second part of which will be received by ex-wife A. If the testator had been in a valid legal marriage with the second wife until the moment of death, the shares under the will would have been distributed slightly differently. The heirs of the first priority according to the law would be the wife and daughter from the first marriage, who, in the absence of a will, would claim equal shares in the apartment. Consequently, the obligatory heir could count on half of the legal share, that is, 1/4 of the home. The successor under the will would own 3/4 of the apartment.
Share in an apartment by inheritance
The most common form of inheritance is inheritance of a share in a privatized apartment. If there is a will, the procedure is simplified. However, citizens who have the right to an obligatory share in inheritance by law have the right to challenge a will. These include :
- citizens who are under 18 years of age and are children of the testator;
- citizens recognized as disabled and who are children of the testator;
- the testator's parents in cases where they are on disability or at retirement age;
- the spouse of the testator (even if the marriage was dissolved during the life of the testator) only if this citizen was dependent on the testator.
Such citizens have the right to the shares due to them by law, even if the deceased has made a will in respect of only one person.
Important
In addition to this list, citizens who were married to a deceased citizen have the right to half of all property (if any was acquired or acquired during the marriage).
How to inherit a share in an apartment
Like any inheritance, inheritance of a share in an apartment occurs within six months from the moment when the notary opened an inheritance case for the property of a deceased citizen. To enter into his rights, a citizen accepting an inheritance must submit the following package of documents :
- application for membership;
- a document confirming the fact and period of death of the testator;
- a certificate from the last place of residence of the citizen who left property after death;
- documents on the relationship of the heir and testator;
- documents for real estate;
- certificate from the management company;
- extracts (from the house register, personal account).
An apartment and a share in an apartment that was not privatized by are not included in the inheritance mass . However, to protect the rights and legitimate interests of the heir, the law provides for the inclusion of a non-privatized apartment or its share in the inherited property by decision of the court .
If the court refuses to include such property in the inheritance mass , only those citizens who are registered and living in it have the right to claim non-privatized real estate. These citizens can try to privatize the apartment as an inheritance in equal shares through the courts.
However, judicial practice in such cases leaves much to be desired. The fact is that the judicial authorities, applying the norms of the law, are very strict in disputes about the inclusion of non-privatized real estate in the inheritance.
Example
Citizen “L” filed a claim against citizen “D” and the Housing Fund. She asks the court to include an apartment in the inheritance estate that opened after the death of her sister. Also, the court asks to recognize the right of ownership by inheritance. Citizen “L” justifies her demands by the fact that she is the only heir. She informed the court that during her lifetime, her sister attempted to privatize the apartment, but she was refused for the reason that the housing was registered as official.
Citizen “L” believes that official status cannot be applied to this apartment, since on the basis of legislative norms the apartment could have been privatized by her sister, and by such refusal her sister’s rights were violated.
The court refuses to satisfy citizen “L” due to the fact that she did not provide evidence that her deceased sister expressed intentions to privatize the apartment or made a corresponding application. In addition, the court found that her deceased sister submitted an application for improvement of living conditions, which contradicts the statements of citizen “L” that her sister intended to privatize this housing.
Registration of a share in an apartment received by inheritance
The right to a share in an apartment transferred by inheritance must be registered with the appropriate authority. Only after this the heir becomes the full owner of the share and has the opportunity to dispose of it at his own discretion (but taking into account the requirements of the law).
State registration is carried out by the territorial branch of Rosreestr . To undergo this procedure, the new owner needs to prepare and submit the following documents :
- application for state registration;
- passport of the new share owner;
- certificate of inheritance;
- cadastral documents:
- a receipt confirming payment of the fee.
The government agency checks the documents, enters the relevant information into the register and registers the transfer of rights. Within the prescribed period, the new owner of the share in the apartment receives a corresponding certificate.
Tax on the share of an apartment received by inheritance
Currently, property that is transferred by inheritance is not subject to taxation.
For your information
Amendments to the Tax Code adopted by law (Article 217 of the Tax Code of the Russian Federation) abolish the tax on inherited property, regardless of who the heir is - relatives of the testator or strangers.
The law established that the income of citizens from receiving property by inheritance by law or by will is no longer subject to tax burdens .
The Ministry of Finance also commented on this norm by saying that changes have been made to the legislative framework and some previously existing norms have been declared invalid.
However, if a citizen who has received a share in the apartment decides to sell it, then this citizen will be required to pay tax on the sale of the share . It should be borne in mind that citizens are exempt from tax burdens on the alienation of property if this property has been in their ownership for more than three years.
Spouse's share of inheritance
The owner of an apartment can inherit only that part of it that belongs to him. If housing was acquired during a legal marriage, half of it is the property of the testator , and the other half is the property of the surviving spouse.
By default, it is considered that the spouses’ shares in the common apartment are equal. This is indicated by paragraph 1 of Art. 39 IC (Family Code) of the Russian Federation. Otherwise may be specified in the marriage agreement or other document. That is, in the general case, if there is a surviving spouse of the testator, the heirs of the deceased will receive the right to divide only half of the apartment .
The ownership of a part of the living space by a spouse not only does not deprive him of the opportunity to inherit, but also provides an advantage when dividing the apartment as a co-owner (clause 1 of Article 1168 of the Civil Code of the Russian Federation).
The surviving spouse can act as a first-priority heir by law, an heir by will, and claim an obligatory share if there are grounds for doing so.
Example After K.'s death, there was no will. She has a couple of legal heirs - a husband and an adult son. K.'s husband filed an application for inheritance, while their common son refused to take any action in this regard. In fact, the share in the apartment inherited from K. was not of interest to him. The notary refused to issue K.'s wife with a certificate of inheritance. He justified his refusal by the fact that the marital shares in the jointly acquired apartment were not allocated. After this, K. filed a lawsuit (he acted as a plaintiff) for the division of property jointly acquired with his wife, the son being the defendant. In the statement of claim, the man indicated that he and his wife never discussed aspects of owning joint property. The defendant (son) did not object to his father's demands. He really did not want to go through the procedure of renouncing his share from a notary, just as he did not accept the inheritance. The court satisfied the plaintiff’s demands, because on the basis of Art. 39 of the RF IC, the share of one of the spouses may be allocated from the common matrimonial property. Neither spouse had an advantage in owning the apartment, so each of them should own equal shares.
Only after a court decision on the division of shares in the joint matrimonial property was made, the plaintiff was able to submit an application to a notary to enter into an inheritance. He inherited his wife's allocated share as the only legal successor willing to accept the inherited property.
Receive real estate as an inheritance: nuances of inheritance - consultation with a notary
For some people, inheriting real estate is a joyful event, but for others it will cause a lot of trouble. The notary of the Vitebsk Notary District, Natalya Pristavko, helped us understand the questions received by the editor about the inheritance of housing.
“My father died in August. They were divorced from their mother for 30 years, but lived as one family, in the same house. My mother doesn’t want to leave me anything, although I am the only daughter, she says that everything will go to my 24-year-old son, that is, her grandson. Can I inherit the house after six months, so as not to aggravate the conflict with my mother? And is there a statute of limitations for this?”
– If the father is recorded as the owner of the house, then from the moment of his death the house became hereditary property, and you need to formalize your inheritance rights to it. Within the 6-month period established by law from the date of death of the testator, you must submit an application to the notary for acceptance of the inheritance. Only those heirs who actually accepted the inheritance, for example, lived together with the testator or in the inherited house, can not comply with this deadline.
In this case, you can take your time with the registration; you have the right to contact a notary even after the expiration of the 6-month period. If you do not actually accept the inheritance, then the application for acceptance of the inheritance should be submitted within 6 months, and you can receive a certificate of the right to inheritance at any time, even after several years.
If the owner of the house is the mother, then she has the right, at her own discretion, to determine the circle of her heirs and draw up a will for the house in the name of her grandson.
It is possible that the house belongs to the father, but is the common joint property of the father and mother. In this case, the mother, as the surviving ex-wife, is entitled to 1/2 of the share of the specified house, she has the right to allocate it and dispose of it at her own discretion.
“Two daughters-in-law inherited the house after the death of their husbands: one has a 5/6 share of the property, the other has a 1/6 share. The owner has lived in this house for the most part for over 45 years, fully maintains it and pays all expenses. The second one has never lived in the house and is not involved in any expenses. Is there a legal opportunity to take this 1/6th share from her?” Svetlana, Vitebsk
– First of all, the law establishes the obligation of the owner of a 1/6 share of a residential building to bear a proportionate share of the costs of its maintenance. If she did not do this and all expenses were paid by the owner of a 5/6 share, then the latter has the right to recover from her co-owner in court the corresponding part of the expenses incurred.
As for the possibility of taking away 1/6 of her share, that is, depriving her of ownership rights, this is a much more difficult question. It can be resolved out of court only if the co-owners agree among themselves on the purchase and sale (exchange, gift) of this share to each other.
In the absence of an agreement, it is possible to try to resolve this issue only in court. The law provides that if the owner's share in the property is insignificant, cannot be realistically allocated and he does not have a significant interest in its use, the court may, even in the absence of his consent, order the transfer of his share to the owner of the remaining part, who will have to pay compensation to the co-owner.
“In July, my father died, who lived in the same house with my sister (my mother died 7 years ago).
My sister and father privatized a house for two in equal shares. How much of the house can I claim as an heir? Is it necessary to inherit? If I register my share and my sister decides to sell the house, can I give her my share or should I sell it?” Elena, Vitebsk
- Since, as a result of privatization, your father became the owner of 1/2 share of the house, this particular share will be subject to inheritance. If the father did not make a will, then inheritance after his death will occur according to the law, according to which you and your sister are heirs in equal shares - 1/2 share each.
Thus, the 1/2 share of the house that belonged to your father will be divided in half between you, and you will become the owner of 1/4 share of the house.
If you need the specified share, then you must enter into an inheritance, otherwise you will miss the 6-month deadline established by law for accepting the inheritance and lose the right to inherit. Having registered your ownership of a share of the house, you yourself will decide how to dispose of it.
To sell a house, you do not have to give your share to your sister; you can simply act as the seller of 1/4 share of the house when selling it, while your sister will act as the seller of 3/4 share.
Elena Alimova, “Vitebsk News”, September 12, 20018
Determination of the size of shares of heirs
The size of the share of each heir in the apartment (house) depends on the characteristics of the inheritance, as well as the presence of other property in the list of inheritance. Ideally and by default, the parts that will go to each of the heirs are equal in size. They are reduced for compulsory heirs and those who have received the right of representation.
By agreement
An apartment or house that is in common shared ownership can be divided using an agreement - a civil law trail (Article 1165 of the Civil Code of the Russian Federation). This method is as legal as division by other means.
By agreement between the heirs, shares in the apartment and other bequeathed property may be established as different from equal shares. This is recognized as legal if it suits each of the heirs and does not violate the interests of minors and incapacitated close relatives.
The agreement is the fundamental document for registering property rights of heirs. Sometimes it is concluded after receiving a certificate of inheritance, and its points differ from the information specified in the state document. Then employees of Rosreestr (Federal Service for State Registration, Cadastre and Cartography), when drawing up a certificate of ownership of an apartment, are obliged to be guided by the agreement.
Judicially
It makes sense to go to a judicial authority if it is impossible to distribute shares in the ownership of an apartment on your own or if you miss the deadline for going to the notary.
It is worth contacting the district court at the location of the inherited property .
Since in fact an apartment is an indivisible object, the size of shares in controversial cases can be determined by the court to be significantly different from equal shares. If there is other property in the inheritance, housing may completely go to one of the heirs by right of preference (Article 1168 of the Civil Code of the Russian Federation), while others will receive everything else.
By decision of the court, a previously issued certificate of the right to inheritance may be annulled. It will be necessary to issue another one, reflecting the essence of the distribution of shares.
The court decision is registered in the regional Rosreestr . As a result, it replaces the certificate of inheritance. You no longer need to contact a notary office.
Registration of shared ownership rights to an apartment or house
After opening the inheritance, it is important to register ownership of the living space. To do this, it is important within 6 months from the date of death of the testator and declare your desire to receive a certificate of right to inherited property (Article 1153, Article 1154 of the Civil Code of the Russian Federation). Based on the issued document, Rosreestr re-registers ownership of real estate.
It makes sense to contact a notary office at the place where the inheritance is opened . That is, where the testator lived before his death, or in the area where the inherited apartment is located.
It is necessary to provide the employee with a death certificate of the testator, a testamentary document (if any), an extract from the last place of residence of the deceased person, and documents on ownership of the apartment. At the direction of the notary, it will be necessary to obtain an extract from the register of property rights and other specified documents.
The certificate is issued by a notary six months after the opening of the inheritance so that all heirs have time to declare their rights (Article 1163 of the Civil Code of the Russian Federation). The heirs pay the notary state fee.
The document is received by all heirs jointly; you can request a copy for each. Only the apartment or other parts of the inheritance fit into it, if the heirs so desire (Article 1162 of the Civil Code of the Russian Federation). The certificate indicates the shares of each person in the apartment and/or other real estate.
In another (actual) way, accepting an apartment as an inheritance is allowed . However, using this method you will not be able to complete any housing transactions.
After receiving the certificate, you must register it with Rosreestr, and you will again have to pay a state fee .
Refusal of share in inheritance
If one of the heirs wants his share in the apartment to be inherited by another heir, it is enough for him to renounce the property allotted to him in writing in favor of a specific person or without specifying him. Refusal is possible in cases of inheritance by law and by will within six months after the opening of the inheritance (Article 1157 of the Civil Code of the Russian Federation). To do this, the heir must submit an application to a notary (Article 1159 of the Civil Code of the Russian Federation).
When inheriting by law, you can only refuse in favor of the legal heir or not specifically specified persons . The same applies if there is a will.
A minor or incapacitated citizen is allowed to refuse the due part of the inheritance only with the consent of the guardianship authority , which is actually very difficult.
It is impossible to formalize a waiver of the obligatory share in the property left as an inheritance, or to give your share to an unworthy heir .
After one of the heirs refuses his part of the apartment, the rest have the right to an increase in their shares (Article 1161 of the Civil Code of the Russian Federation).
Grounds for the emergence of shared ownership in inheritance
If the testator has not drawn up a will, or if the document drawn up does not indicate which heir specifically receives what and in what amounts, then the property of the deceased person comes into the common (joint) possession of all persons from a certain line of inheritance, or those listed in the will document (Article 1164 of the Civil Code).
The successors by law automatically become co-owners of the property until (unless) each of them decides to allocate their share. The latter can be done by agreement or by court order.
The testator's young children and his dependents ) have the right to receive their part of the inheritance both by law and by will (even those not mentioned in the latter) . If by his will the testator bequeaths all the property to one specific person or organization, then if the deceased has such relatives, according to the law, shared ownership of the inheritance will also arise.
Also, the unborn child . The property is divided after his birth, he is entitled to his share.
Common shared ownership appears if the object of the inheritance is an indivisible thing (Article 133 of the Civil Code), and does not arise if the testator has assigned ownership of certain and divisible things to different persons.
