Mom (father died) wants to bequeath the apartment to me (daughter), but I have a brother for whom my parents built a house. Can a brother challenge the will and have a share of the apartment?
Answers:
Mom has the right to bequeath her property to any person. The fact that your mother bequeaths an apartment to you is not in itself grounds for challenging the will. How did mom buy the apartment?
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The will was made for one child
The testator has the right, at his own discretion, to bequeath property to any persons, to determine the shares of heirs in the inheritance in any way, to deprive one, several or all heirs of the inheritance by law, without specifying the reasons for such deprivation.
The testator has the right to cancel or change the completed will. The testator is not obliged to inform anyone about the contents, execution, amendment or cancellation of the will.
Freedom of testament is limited by the rules on compulsory share in inheritance.
The testator's minor or disabled children, his disabled spouse and parents, as well as the testator's disabled dependents (at the time of death), inherit, regardless of the contents of the will, at least half of the share that would be due to each of them upon inheritance by law (mandatory share).
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A will may be declared invalid by a court upon the claim of a person whose rights or legitimate interests are violated by this will.
Challenging before the opening of the inheritance is not allowed.
Misprints and other minor violations of the procedure for its preparation, signing or certification cannot serve as grounds for the invalidity of a will if the court has established that they do not affect the understanding of the will of the testator.
Both the whole and individual testamentary dispositions contained therein may be invalid.
The invalidity of individual instructions contained in the will does not affect the rest of the will, if it can be assumed that it would have been included in the will in the absence of instructions that are invalid.
Who has the right to inherit by law in the presence of a will?
In the absence of a will, the inheritance goes to the family members of the deceased citizen. The basis for determining the circle of heirs is family ties. Inheritance rights arise in order of priority. Claimants in the same line share the property of the deceased in equal shares.
The circle of recipients of the 1st stage is parents, natural/adopted children, spouse (Article 1142 of the Civil Code of the Russian Federation). If such persons are absent or have renounced their rights, then the relatives of the next line take over the property.
Simultaneously with the relatives of the corresponding line, the testator's dependents enter into inheritance (Article 1148 of the Civil Code of the Russian Federation). Their share is the same as that of legal successors.
In the presence of a will, the manner in which assets are distributed is radically different. The testator independently determines the recipient.
An heir under a will can be:
- relative;
- outsider;
- legal entity (organization or charitable foundation);
- inheritance fund;
- state.
The circle of possible heirs is practically unlimited. A citizen is not obliged to include relatives at his disposal. In addition, he is not required to explain his choice.
The law provides for the secrecy of a will (Article 1123 of the Civil Code of the Russian Federation). This means that the data from the written will of the deceased is known only to the persons who are present during its preparation. But they have no right to disseminate information.
The will can indicate the shares of legal successors and the type of property that will pass to them after the death of the testator.
Will for one of the children
To reduce the number of fraudulent schemes with microshares in apartments, it is necessary to prohibit the division of property passed by inheritance into several owners.
This norm existed in the USSR and may return to modern Russia.
On March 20, 2021, a new edition of the third part of the Civil Code of the Russian Federation came into force. The right of heirs to receive an increased amount of funds to organize a decent funeral for their deceased relative is established by law.
The Social Insurance Fund of Russia reminded that if the insured person did not receive temporary disability benefits during his lifetime, the employer is obliged to pay it to the relatives of the deceased.
The procedure for such payment is explained separately.
The review of legally significant documents that come into force from February 21 to February 28, 2021 includes a new procedure for submitting annual reports by non-credit financial institutions, clarification of fines for violation of currency laws and a clarified procedure for refusal of inheritance.
Education: higher, graduated from Moscow State University named after M.V. Lomonosov in 1981 with a degree in History. Area of interest: labor law, judicial practice in labor disputes. I specialize in the field of labor law and social security. I have over 15 years of experience in the field of labor law; in my professional activities I have constantly encountered the protection of the rights of both employees and employers.
Therefore, I can tell you about the most important labor rights, which...
Graduated from the Faculty of Law of St. Petersburg State University. I live in St. Petersburg. Private practicing lawyer.
I specialize in the field of inheritance, housing, and family law.
If there is a will for specific persons, who else can claim the property?
However, the obligatory share of a pensioner in the inheritance under a will is allocated only to persons who have reached the appropriate age, and not to those who retired on preferential terms. To receive an inheritance, in any of the above cases, you will need confirmation of your incapacity.
How is the inheritance divided if there is a will?
The procedure for dividing property is determined by order.
There may be two options here:
- The testator made a general disposition for all property. In such circumstances, the property is divided equally among all heirs under the will.
The final composition of applicants is determined after the expiration of a 6-month period . Wording for a general disposition: I will bequeath all my property that will be in my possession at the time of death, whatever it may be, in equal shares to the heirs (full name of the recipients).
Example. Citizen K. made a general will in the event of his death. When drawing up the document, the testator only had an apartment in a residential area of the city. However, a year before his death, the man bought a car and managed to open a deposit in the bank. The heirs are his ex-wife and two children. Parents were not mentioned in the order. After the death of the testator, the applicants turned to the notary. The identified property was divided in equal parts. Each heir received 1/3 of the property of the head of the family. The mandatory share rule did not apply. The testator's parents were of working age. The deceased man had no dependents.
- The testator indicated the type of property and the size of the share of each legal successor. Here the problems disappear by themselves. The testator decided the fate of the property at the stage of drawing up the administrative document. The heirs can only accept the property in accordance with the last will of the owner of the assets.
Example. Citizen N. made an order in case of his death. The inheritance consists of an apartment in the city center, a Gazelle car, and a cash deposit in a bank. The property was divided among the heirs at the discretion of the testator. The apartment went to the wife and two children in equal shares. Each heir became the owner of 1/3 of the property. The man gave the car to his brother. The monetary contribution went to the young daughter. The condition for its removal was the age of 18. The testator's parents were not mentioned in the order. However, on the day of death they reached retirement age. Therefore, they could declare their rights to part of the property. But the old people refused the inheritance due to them.
Allocation of spousal share
According to the law, any property that was acquired by the spouses during the marriage is their joint property (Article 34 of the RF IC). As for assets that were acquired before marriage, they belong to one of the spouses.
A similar rule applies to gifted or inherited property. Spouses can change the property regime by concluding a marriage contract.
Let's look at what jointly acquired property means. The husband and wife are co-owners of an apartment, house, car or cash deposit in a bank, as well as other property acquired during the marriage with joint money.
Each spouse has the right to ½ share of the common property. When inheriting, the spouse must initiate the allocation of his share of the joint property. A notary oversees the allocation of the marital share. However, in order to obtain a certificate of ownership, the co-owner must submit a corresponding application (Article 75 of the Notary Law).
The remainder of the property is divided among successors in accordance with the will. Moreover, the husband/wife also participates in the inheritance of the property of the deceased spouse.
The allocation of the spousal share is not affected by whether the spouse is included in the heirs or not. A citizen must submit an application to a notary so that his property is not transferred to his heirs.
Size of the share of mandatory applicants
The only restriction regarding freedom of expression is the rule on compulsory heirs. Obligatory heirs are understood as individuals who have the right to a share of the deceased’s property, regardless of the terms of the will.
Persons entitled to a mandatory share
| No. | Category of citizens | Comments |
| 1 | The testator's parents are deprived of their ability to work | The right to receive a share of the inheritance arises after retirement due to old age or as a result of disability |
| 2 | Young children | The rule applies until they reach the age of 18 |
| 3 | Disabled spouse | The obligatory share of property is due to the husband or wife in addition to the spousal share |
| 4 | Disabled dependents | This category of legal successors may include both relatives and strangers. If there is a family connection between the deceased and the dependent, it is enough for the recipient to be supported by the owner. Applicants for property who are not relatives must be supported by the deceased citizen and live with him for at least a year before his death. |
The rule on the obligatory part of the inheritance is valid only if there is an order (Article 1149 of the Civil Code of the Russian Federation). The minimum that is due to obligatory heirs is ½ share of the property that is due to them upon inheritance by law.
Important! If the order was issued before March 1, 2002, the rules of the old legislation apply. Mandatory heirs were provided with 2/3 of the share due by law.
Let's look at how to calculate the share of the inheritance. The actual volume of property can be determined only after the expiration of the period for accepting the inheritance. By then the full list of applicants will be known.
Example. Citizen S. transferred all his property to his wife and 2 children. Elderly parents were not included in the will. But they decided to enter into the inheritance. All heirs declared their rights. The market value of the property was 5,000,000 rubles. 5 recipients (wife, 2 children, father and mother) would legally receive 1/5 of the property. The inheritance was carried out by will, so the parents receive only the obligatory share. Since the obligatory share is ½ share of the inheritance according to the law, they were entitled to 500,000 rubles. the rest of the property is divided between the wife and children.
Let us consider from what property the share of the obligatory applicant is allocated. Initially, the notary checks to see if there is any additional property that is not reflected in the will.
Expert opinion
Stanislav Evseev
Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.
If there is no such property, then the allocation of the share occurs from the assigned inheritance. The shares of legal successors under a will are subject to reduction.
If the testator did not include a share for a mandatory heir, then the potential recipient must contact a notary. The notary notifies other heirs of the mandatory applicant.
If the heirs agree with the allocation of the share, the notary issues a certificate. If the recipients refuse the will, the obligatory heir must protect his interests in court.
Legacy fund
In 2021, changes were made to the Civil Code. One of the recipients of an inheritance under a will may be an inheritance fund (Article 1116 of the Civil Code of the Russian Federation).
An inheritance fund is a method of disposing of property in the event of the death of the owner. The method is suitable for citizens with large capital. The main reason for the impossibility of using the inheritance fund by a wide range of people is the high cost of registering the fund.
With the help of an inheritance fund, a citizen can provide for payments to charity, maintenance of minors and disabled relatives, investments and other orders.
Basic information about the inheritance fund:
- the testator must include a requirement to register the foundation in the will;
- the order must include the amount of property that is transferred to the fund;
- the will must include data on the expenditure of the funds of the fund;
- the notary registers the foundation immediately after the opening of the will;
- funds allocated to the fund are immediately transferred to its accounts;
- the testator must provide for payments to charming heirs.
Important! The obligatory heir must choose either the obligatory share or payments from the inheritance fund. Moreover, if a citizen chooses a mandatory share, then it is reduced to reasonable limits.
If a will is made for one of the children, can the other children challenge it?
Answer from a lawyer. Yes, you can challenge, but you will challenge not the will itself, but the moral and ethical side - the deal that the parent left everything to one child.
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If the will has some elements of contestability, or the nullity of the transaction, then you can challenge it as a transaction. In this situation, it may be a mistake by the testator, writing a will under threats, etc.
If a will is made for one of the children, can the other children challenge it?
Question. If a will is made for one of the children, can the other children challenge it?
Answer from a lawyer. Yes, you can challenge, but you will challenge not the will itself, but the moral and ethical side - the deal that the parent left everything to one child. If the will has some elements of contestability, or the nullity of the transaction, then you can challenge it as a transaction. In this situation, it may be a mistake by the testator, writing a will under threats, etc. If the procedure for drawing up a will is not violated, you will not be able to challenge it.
Question. Our mother has three children. In the will to inherit the apartment, she indicated only my two sisters and their children, and did not indicate me, as the eldest son. Can I challenge a will?
Answer from a lawyer. From a moral point of view, you will not be able to challenge this will, but according to the law, if you assume that the will was drawn up in violation of the law - misleading the mother, threats, or something else, you can challenge the deal. If your mother wrote such a will for moral and ethical reasons, then challenging the will is useless.
Inheritance, will. Part 3. Legal assistance, consultation. Transfer of Legal Assistance. Broadcast 09/15/2013. First educational channel.
Lawyer Yaroslav Yuryevich Mukhin answers questions from viewers.
Attention! Please pay attention to the publication date; the relevance of the information may have changed. Consult an attorney for the correct answers at this time.
