Inheritance by law is a transaction or rule: meaning and essence

Why was the inheritance agreement introduced at all?

The essence of the inheritance agreement is that the testator agrees with the heirs about the future of the inheritance after his death. This agreement may imply the obligation of the heirs to perform certain actions that are important to the testator (for example, to repair an item that will be inherited). That is, the heirs will receive the property of the deceased not just like that, but for certain activity on their part.

The concept of an inheritance contract was introduced in order to minimize disputes arising between heirs after the death of the testator. An agreement between them and the testator will relieve tension and dissatisfaction in the distribution of the inheritance.

Inheritance agreement and will

According to the law, the inheritance agreement will be executed as a primary agreement.
After the death of the testator, the heirs for whom the will was drawn up are required to submit documents to enter into inheritance rights and wait for the appropriate deadlines. The moment of implementation of the inheritance agreement occurs immediately after receiving the death certificate. In controversial issues, when the testator has drawn up and executed a will and an inheritance agreement describing the same inheritance, it is the heirs under the agreement who have the primary right to receive the inheritance.

Otherwise, the inheritance agreement repeats the procedure for drawing up a will.

What is inheritance by law, its features

The rules on inheritance are contained in the Civil Code, and this issue can only be understood based on it. The law assumes that the property is divided by the testator among his heirs.

He has the right to determine himself who will receive the property after him. The exception is heirs who have the right to an obligatory share, who almost always receive part of the property.

Inheritance by law is a situation when property is not transferred by will for several reasons:

• it wasn't written
• it was declared illegal by the court
• it does not apply to all property after the death of a person
• the heir noted in the will did not accept anything or died before the inheritance appeared

Inheritance by law is inheritance in order of priority. All relatives and other people are divided into 8 groups if no one from the previous group accepted, wrote a refusal, or was suspended.

Everyone gets an equal share. If, for example, a woman dies, a husband and a child remain, the remaining property is divided equally between them, and no one in subsequent lines receives anything.

A complete list of persons included in the queue is set out in Art. 1142-1145 GK.

Six lines are represented by relatives, the seventh represents those who are not relatives. The law provides for the right of inheritance for disabled persons whom the deceased supported:

• a person under 18 years of age or he has not reached the age of 23 and is studying at a university or has a disability on the day of death of the testator
• the person has reached the age to receive an old-age pension
• was in the custody of the deceased for at least a year before his death

The presence of these circumstances simultaneously gives the right to receive an inheritance on an equal basis with other established heirs, even if such a person initially could not expect to receive anything. For example, the inheritance went to the heirs of the second stage, and the dependent belongs to the fifth. Thanks to this position, he receives a share equally with others.

If the heir:

• lived with the testator at his expense for at least 12 months before his death
• was disabled at the time of death
• not included in any queue

The law equates him with the representatives of the line, the heirs who receive the inheritance.

Peculiarities of inheritance by adopted children. Adoption ends family relations with parents and his relatives, and accordingly the right of inheritance is lost.

If adoption presupposes the preservation of family ties, the right remains. The parent and his relatives also do not retain or retain the right to receive an inheritance, depending on what decision the court makes on the issue of preserving the relationship.

The law provides for replacement if the original heir dies before the testator or on the same day. This transfer of rights is called inheritance by right of representation.

It applies exclusively to persons listed by law:

• grandchildren and their descendants - in the case of the first priority
• nephews and nieces in the case of the second stage
• cousins ​​- in the case of the third stage

The right of representation does not apply if:

• the heir was left without inheritance under the will
• there is reason to believe that he would have been recognized as an unworthy heir (if he had not died)

Hereditary transmission occurs when the heir dies after the inheritance has appeared. It is considered open from the day reflected in the death certificate or court decision recognizing the fact of the person’s death.

Inheritance by law is an inheritance and a mandatory share transferred to the heirs, from the point of view of the state in additional assistance.

Recipients of the obligatory share:

• disabled son, daughter, spouse
• disabled dependents, discussed above

They receive an amount that is no less than half the amount that they would receive if the property was divided not by will, but by law. The obligatory share is allocated from the inheritance mass not covered by the will.

The calculation is based on the assessment of all property, for example, the right of use given by will is taken into account.

There is a risk of being left without a mandatory share:

• this will not harm the material well-being of the heir
• the other heir is deprived of his only home, tool workshop, which is a source of income, which the recipient of the obligatory share did not use before the inheritance

A municipality or regional government receives inherited property if:

• it was refused or not accepted
• a person was denied an inheritance

It is recognized as escheated, and upon claim it is transferred to a municipality or cities of federal significance, if the case concerns real estate (house, land, share in them).

All other property becomes the property of the state represented by federal bodies.

The law distributes heirs into queues; all heirs within one queue have equal opportunities. The law distributes property not covered by a will.

What happens to property after death

The testator dies. In this case, the heirs receive the property due under the contractual terms. Until the moment the owner dies, it is impossible to take away his property or funds based only on an inheritance document. But obligations are fulfilled after certification by a notary. If the document contains instructions that the heir needs to pay 5 thousand rubles monthly from the date of signing the transaction, expenses will occur now, but real estate or other valuables will be received now.

Read also: What is a penalty for alimony?

Death of the heir. The requirement to execute the inheritance document is fulfilled only by the surviving person. If the heir dies before the testator, and the inheritance has not been received, the rights to the property will not automatically pass to the direct heirs by law. For example, if a niece helped her aunt financially, relying on her house, but died earlier, the children of this niece will not inherit the apartment. But they can ask her, hoping for the kindness of the aunt.

Disadvantages of an inheritance agreement

An inheritance contract protects the rights of the testator, but in relation to heirs under the contract, legal protection is minimal.
Thus, the testator can terminate the agreement at any time. The alienator retains full right to dispose of his property, which became the subject of the agreement. If this is real estate, the testator can sell it or transfer it to third parties.

The conclusion of an inheritance agreement does not exclude claims to the inheritance of legal representatives who, according to the law, have the right to receive their share of the inheritance. For example, if the testator has dependents, minor children, disabled people, etc.

On a note! It is possible to challenge an inheritance agreement during the life of the testator at the suit of a person whose interests are infringed by the drawn up agreement.

A will, inheritance agreement, deed of gift and annuity agreement have their advantages and disadvantages. Depending on the specific situation, interested parties choose those legal relations that best suit their interests. An inheritance agreement allows you to quickly enter into inheritance rights, but does not guarantee the protection of the interests of the heir in controversial issues.

How to refuse or terminate a contract

The joint order loses its force in the following cases:

• husband and wife or one of the spouses themselves decided to cancel the contract;
• the marriage relationship was dissolved or declared invalid, even if this occurred after the death of one of the spouses;
• the contract is edited;
• During the consideration of the court case, the transaction is declared invalid.

Read also: Noise standards in the Altai Territory in 2021: the law on silence and fines for violation

A joint assignment is terminated in the same way as an individual assignment. If such a document is missing, the property will be distributed in accordance with current legislation and priority.

Termination by court order

The court recognizes the concluded transaction as invalid in the following cases:

• one of the drafters or both is incapacitated;
• the citizen drawing up the will did not give an account of his actions;
• a will was drawn up under deception, threats and other moral pressure;
• the will does not comply with legal requirements.

A transaction can be considered void if no legal consequences are expected. And also if the joint declaration of will was signed by only one spouse or it was not certified by a notary.

Inheritance by right of representation and hereditary transmission

Receiving an inheritance is a legal procedure governed by civil law.

In Russia, drawing up a will is not very common, so in most cases they adhere to legal acts.

Inheritance by right of representation and hereditary transmission, despite their similarities, are considered different concepts. In what cases is each of them used?

Inheritance by right of representation

The definition of this concept indicates that this is a special order of inheritance, which is regulated by Art.
1146 of the Civil Code of the Russian Federation. We can talk about it if the successor died before the testator or at the same time as him. This procedure applies subject to the following conditions:

• absence of a will in which a new heir is appointed;
• the date of death of the heir is the same as or earlier than that of the testator;
• the deceased person is part of the line called for inheritance.

In all these cases, the rights of the citizen are transferred to his relatives. The persons specified in Art. 1142-1144 Civil Code of the Russian Federation.

In accordance with this, the successors are:

• If the heirs were brothers and sisters, then their rights pass to their nephews and nieces.
• Deceased children are represented by grandchildren and great-grandchildren.
• Inheritance is passed on to cousins ​​and other relatives.

If there are several successors, then the property is divided between them in equal parts. As an example, we can take the following situation. The family has two children: a son and a daughter. The woman has her own children. Father and daughter die in a car accident; a will is not drawn up. Accordingly, the son of the head of the family is appointed successor. The daughter's share is divided among her children in equal parts.

Hereditary transmission

Hereditary transmission is a similar concept, but has its own characteristics.
It is regulated by Art. 1156 Civil Code. In essence, hereditary transmission is a transfer of the right to accept an inheritance. In this case, the successors do not receive a mandatory share. Reference! The property that remains from the heir himself does not fall under the transmission, and is accepted in accordance with the general procedure.

Civil law stipulates that this concept does not apply if the heir and testator died on the same day, regardless of the time of death.

The following conditions apply to hereditary transmission:

• an inheritance case was opened;
• the successor (transmitter) did not have time to enter into the inheritance.

If there is a will, then the property goes to the persons indicated in it. Transmission is possible if the document is missing. In this case, inheritance occurs according to the law in order of priority. In the case where there are no transmitters, shares are allocated only to direct heirs.

Thus, if the transmitter dies before entering into the inheritance, then it passes to the relatives.

In the case when he managed to register the property, it is considered his personal property and is accepted on a general basis.

The law specifies relatives who can claim property in order of priority. If a citizen has left a will, then it also applies to inheritance transmission.

The following conditions apply to the procedure:

• The transmitter can claim property only if, at the time of the transmitter’s death, he has opened an inheritance case.
• The successor will not be able to receive more than the heir was entitled to.
• If there are several transmitters, then the property is divided in equal parts.

It is necessary to visit a notary within six months after the death of the transmitter to register the share. If the deadline is missed, you will need to restore it in court and prove the existence of a good reason. The successor may renounce his part, but only in favor of the persons specified in the will or those who inherit by law (Article 1158 of the Civil Code of the Russian Federation).

Differences between legal concepts

Despite the similarity of concepts, there are significant differences between them.

How to formalize inheritance by right of representation?

The legislation provides for deadlines that are the same as for the general procedure for registering property left by deceased relatives. They do not exceed 6 months from the date of death of the testator (Article 1154 of the Civil Code of the Russian Federation). The successors need to collect the necessary documents and write an application to the notary.