Joint will of spouses to each other and not only: sample, pros and cons of a family document, and has it come into force in Russia, how to draw it up between husband and wife?

The transfer of inheritance can be carried out both by law and with the help of a testamentary document. Starting in 2021, citizens are given the opportunity to draw up a joint will between spouses. Thus, one document will indicate the inheritance of all acquired property, as well as personal property.

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How is it different from usual?

Unlike an ordinary will of a citizen of the Russian Federation, the SZS has the following features:

A husband and wife can bequeath common property, as well as property belonging to each of them separately.
The document may stipulate several options for the order of inheritance: after the death of one of the testators; after the death of the second spouse who survived the first; upon the simultaneous death of husband and wife.
A joint document is subject to mandatory notarization in the presence of both testators (clauses 1 and 2 of Article 1125 of the Civil Code of the Russian Federation). During certification, video recording should be used, unless the spouses object to this (clause 5.1 of Article 1125 of the Civil Code of the Russian Federation).
The SZS cannot be closed (Clause 5 of Article 1126 of the Civil Code of the Russian Federation) or drawn up in special circumstances without a notary (Clause 4 of Article 1129 of the Civil Code of the Russian Federation), and also drawn up by persons equated to a notary (Clause 1127 of the Civil Code of the Russian Federation).

In the document, spouses can distribute shares of joint property among themselves at their own discretion.

What is a joint will of spouses?

The Civil Code provides for two ways of transferring property by inheritance:

based on legal priority;
by making a testamentary disposition.

A will is an official document, drawn up in accordance with the requirements of the law, defining the procedure for dividing property between relatives and third parties after the death of the testator. The advantage is the distribution of values in any shares, independent regulation of the list of heirs.

It is possible to attract an executor who controls the fulfillment of all conditions for a fixed fee.

From June 1, 2021, spouses can draw up a joint will. Required conditions:

Marriage registration;
the presence of common, shared ownership;
absence of disputes;
reciprocity of conditions of division satisfying husband and wife.

The concept of jointness implies that partners draw up a document together, agreeing on the terms and supporting each other at every stage of the procedure.

Substance of the document

A joint will of spouses (JW) is a voluntary expression of the will of citizens between whom an officially registered marriage was concluded at the time of its registration, regarding the inheritance of property (clause 4 of Article 1118 of the Civil Code of the Russian Federation). All norms of Part 3 of the Civil Code of the Russian Federation apply to the persons who compiled this document.

Who can make a joint will?

A joint will can only be drawn up by spouses whose relationship is sealed by an official marriage (there is a marriage certificate). The joint property of the spouses is subject to inheritance:

Property acquired by spouses during marriage, including real estate, vehicles, securities, land shares, other movable and immovable property. It does not matter which spouse has the title to the property. The key criterion for classifying property as joint is the fact of acquisition of property during marriage (after its official conclusion).
Income of spouses in cash, including wages received from work, income from business activities, pensions, benefits, interest on cash deposits, and other income.

The income and property of spouses is recognized as joint and assumes equal ownership and division, including in cases where one of the spouses did not have independent income for good reasons (child care, housekeeping, etc.).

Mandatory share

Spouses in a joint will have the right to leave an inheritance to any citizen or several citizens, regardless of the degree of relationship. In this case, the heirs of the first priority by law may be deprived of priority.

At the same time, the SZS cannot circumvent the provision on a compulsory share in the inheritance and compulsory heirs. This applies to:

disabled close relatives;
minor children (clause 1 of article 1149 of the Civil Code of the Russian Federation);
disabled dependents (Article 1148 of the Civil Code of the Russian Federation).

The ban on unworthy heirs cannot be circumvented (Article 1117 of the Civil Code of the Russian Federation).

Who can be the heir?

Testators can bequeath their property to a relative or a stranger. The degree of relationship plays a role only when entering into an inheritance, when there is no will (by law). As in the standard inheritance procedure, there are categories of citizens who are entitled to a mandatory share of the inheritance. This fact must be taken into account when drawing up a joint will. These include:

minor or incompetent children of testators;
disabled parents;
other dependents who were in the care of the testators.

However, if the heir is officially recognized as “unworthy,” then even if he belongs to the category of obligatory heirs, he will not receive the property.

Advantages and disadvantages

The following advantages of SZS are highlighted:

Eliminating the need to divide property into shares.
The possibility of equal distribution of inheritance between potential heirs, regardless of their relationship with one of the testators, taking into account the interests of children born in another marriage.
Preventing many fraudulent schemes used by “marriage scammers”.
Impossibility of changing the order of inheritance after the death of one of the spouses.

The disadvantages of SZS include:

Most often, all property under the SSA after the death of one of the spouses is completely transferred to the second. The direct heirs under the same will cannot receive their share until his death. This circumstance often leads to litigation, and sometimes to criminal acts.
The possibility of selling property by the second spouse after taking full ownership remains controversial. For example, he receives the right to real estate, but cannot sell it without the consent of the direct heirs specified in the SZS. Legal proceedings also arise when such property is pledged.

The second spouse cannot change the will after the death of one of the testators. This rule forces the will of the deceased person to be fully satisfied.

The problem arises due to a change in life situation. For example, the second spouse from a subsequent marriage has other children, but they are not included in the SZS. Change would require litigation.

Settlement of legal conflicts

After the annexation of the Republic of Crimea from the Russian Federation, a legal conflict arose in inheritance law. On the territory of Ukraine, there is a provision on drawing up joint declarations of will by spouses.

In Russia, this norm does not exist. Consequently, the procedure for exercising civil rights is significantly different. Some of the problems were resolved by adopting Federal Law No. 201-FZ dated July 26, 2017.

If the joint will of the spouses was drawn up before March 18, 2014, then the provisions of the law previously in force in the territory of Crimea apply to it. Consequently, the testator's share passes by inheritance to the living spouse.

After the death of the successor, all property goes to the persons specified in the order. You can only cancel your will during your lifetime. The process can be initiated by one of the parties to the transaction.

If the spouses divorce, the order automatically becomes invalid. After the death of one of the spouses, the will cannot be revoked. Inheritance of escheated property is carried out in accordance with the provisions of Russian legislation.

How to apply for SZS?

A joint will is made by a legally married couple. The document takes into account common property:

property (real estate, vehicles, securities, land, etc.) acquired during the period of cohabitation (how to write a will for an apartment, as well as for a house and land?);
monetary savings in the form of income from labor, business or other activities carried out during this period.

The document may also concern the individual property of the spouses.

Algorithm of actions

Registration of SZS implies the following algorithm of actions:

Preparation of documentation. Determination of a list of joint and individual property, a list of potential heirs. The procedure for determining ownership is regulated by Article 256 of the Civil Code of the Russian Federation. Copies are made of documents.
Drawing up a will. It is carried out by a notary.
The document is written in a free style, but must meet certain requirements. A separate list of joint property, and, if necessary, individual property of each spouse, subject to inheritance under the SZS, is provided. The list of heirs must clearly define their identity, i.e. include as much information as possible. The share distribution of the inheritance is determined. The document is drawn up in 3 copies.
Decor. Both spouses carefully read the text of the document, after which the notary reads it out loud. The provisions of the Civil Code of the Russian Federation are explained (clause 2 of Article 1118, clause 2 of Article 1119, clause 2 of Article 1149). With mutual consent, the testators sign the document. The will is certified by a notary.

Spouses receive one copy of the document, and the third remains in the notary's office.

Expenses

The cost of issuing an SZS consists of the state fee for certifying the document and the cost of notary services. The state duty is set at 100 rubles.

The amount of payment for notary services is determined annually by regional notary chambers and may vary for different regions of the country. So in 2021, for Moscow, the tariff for SZS is set at 4,000 rubles, and for registration of an inheritance agreement – 11,000 rubles.

Attached documents

The following documents are required to register the SZS:

Identity card of both spouses (passports).
Marriage certificate.
Documents confirming the rights to the property and the date of its acquisition:
PTS for a car;
agreement on maintaining a deposit;
certificate of title to a land plot;
payment documents confirming the purchase of valuable property, etc.

To establish the fact of joint property, all documentation must be dated.

How to compose: required points

Despite the fact that the will is drawn up in a free style, it must include the following points:

Name: Joint will of spouses.
Full information about both testators, incl. date of birth, passport details, place of residence.
The basis is data from the marriage certificate.
List of bequeathed property. Joint and individual property is indicated separately.
Conditions of inheritance. It should be noted that with the execution of this SZS, all previously executed individual wills are canceled. As a rule, this order of inheritance is determined. After the death of one spouse, all property is transferred to the second spouse. All other heirs receive the right of inheritance only after his death (find out how to write a will for all property).
List of heirs and their shares in the inherited property. It is necessary to indicate not just your full name, but also passport details, dates of birth and place of residence.
Date and place of registration.

The document should indicate that the testators are familiar with the provisions of the Civil Code of the Russian Federation and the rights of compulsory heirs. It should be especially emphasized that after the death of one of the spouses, the document cannot be revoked or changed. The number of copies and the location of their storage are indicated.

Innovations in inheritance law

Most lawyers consider the expansion of opportunities to dispose of property after death a positive change in the law.
Previously, there were only two options. Everyone could leave a testamentary disposition in relation to personal property, or leave nothing - then inheritance took place in turn by force of law. Now a will of both spouses, written jointly during their lifetime, eliminates the need to allocate a marital share. It unites the desire of marriage partners to leave an inheritance to a successor chosen by them by mutual consent. A joint will differs from an inheritance agreement in that it does not contain any conditions for the heir. He may not even know that the property is intended for him to inherit.

About the new law

In Russia, on June 1, 2019, Federal Law No. 217 of July 19, 2018 on joint wills of spouses in a registered marriage came into force. Previously, the will was drawn up individually, because The principle of secrecy of the contents of the last will of the deceased was in effect. With the advent of a new legislative act, this restriction has been removed, as a result of which spouses can draw up a joint will.

Such changes in the law of inheritance are caused by judicial practice: an increasing number of Russians leave a will, and therefore the number of lawsuits began to grow exponentially. Most often they concern the second half of the living space, which is subject to division between the heirs.

After all, after the death of one of the members of a married couple, the heirs immediately begin to claim half of the living space that belonged to the deceased, as a result of which the surviving member of the marriage union finds himself infringed on his rights. And relatives cannot always agree among themselves.

The second point that legislators paid attention to is that the other member of the couple (most often the wife) does not always agree with how the testator disposed of the property. A compromise can always be found in a joint will, especially in families where there are children from other marriages.

Another problem is eliminated: when a family dies at the same time, for example, in a car accident, it is important, down to the minute, who died first. This is what the notary will proceed from when distributing the inheritance (we wrote about how it happens in the usual way here). Practice shows that in such cases, relatives do not come out of court.

Another important innovation: the emergence of a new type of document in inheritance law - an inheritance contract. It stipulates the transaction between the spouses regarding the inheritance estate. There is almost no practice in using the document, but lawyers outline the range of issues that may be contained in it. For example, a surviving spouse transfers the deceased's inheritance to his son only if he gets married.

Is it possible to challenge?

A joint will can be challenged in court if there are compelling reasons. This right is possessed by any of the spouses during their lifetime, the spouse after the death of the second testator, as well as heirs whose rights are illegally infringed. The court accepts for consideration claims for contestable and void documents drawn up in violation of the Law (Articles 166-168, paragraph 2 of Article 1131 of the Civil Code of the Russian Federation). Mandatory heirs have special rights.

How to correctly draw up a will so that it is not contested is discussed in a separate article.

Procedure for certification by a notary

The spouses must present the document to the notary together, or dictate it for recording
A document drawn up by one of the spouses must be read by the other in the presence of a notary (it is read out loud if the spouse cannot read it, for example, due to blindness).
Witnesses can be invited to sign, then they also sign the document indicating their passport details.
The notary warns both parties about the need to maintain secrecy in relation to the document drawn up and video records the event.

The law prohibits the preparation of closed joint wills. That is, presenting them to the notary in a sealed envelope. This document cannot be written in emergency circumstances, which implies a simple written form. It must be notarized.

Possible alternatives

In inheriting joint property of spouses, there are 2 main options (in addition to the SZS): an individual will and an overlap will.

In the first case, each spouse himself disposes of his half of the acquired property. It is for this that he has the right to make a will, attaching documents proving the fact of acquisition during the period of cohabitation.
In the second option, everyone draws up an individual will, but according to it, everything goes to the second spouse. The document may leave further inheritance at the discretion of the spouse or may set out special conditions indicating specific second-order heirs. This option is suitable if there is complete trust in each other and agreement between husband and wife.

A joint will has long been used abroad and allows you to streamline the inheritance process, excluding marriage scams. In Russia, this method began to actively develop after the adoption of the Law. Despite certain disadvantages, the SZS allows for a civilized transfer of property and takes into account the will of both spouses.

A will is extremely difficult to change after the death of one of the testators, which ensures equal rights for the heirs. At the same time, if there are violations in the preparation of the document, it can be challenged in court