What does a closed will mean?
In Art. 1126 of the Civil Code of the Russian Federation defines the concept of such a will and establishes the procedure for its execution and publication.
A closed will is a document that is kept secret until the death of the testator.
In accordance with it, the transfer of property that belongs to the owner or will belong to him in the future to other persons after his death is determined.
A closed will must be written by the testator in his own hand. The document must bear his signature. Without compliance with the specified conditions, the transaction is considered invalid and the will is invalid.
The law calls a will a unilateral transaction. In accordance with it, rights and obligations are transferred to a new person - the heir - after the death of the testator.
Unlike a gift agreement, which clearly establishes the period for the transfer of ownership, a will cannot be opened before the death of the testator.
Why might you need a closed will?
The main requirement is that a closed will must be written and signed by the testator in his own hand. When compiling the text of the document, you cannot use a computer or other technical means. This, in turn, eliminates the possibility of forgery and falsification of the inheritance.
Neither the notary nor the witnesses in whose presence the document is transferred for certification can find out the contents of the will.
Since no one knows how the citizen disposed of his property at the time of death, this guarantees the secrecy of the document.
A clear procedure has been established for the publication of the text of the will in the presence of witnesses.
What property can be transferred
The law does not limit the possibility of transferring one or another type of property or property rights in a closed document. The objects specified in it may be:
- real estate, both residential and non-residential;
- funds, both cash and accounts in various credit institutions;
- securities;
- transport;
- any movable objects;
- other property, including not only property rights, but also other property rights.
It is prohibited to inherit rights that are inextricably linked to a person. For example, alimony, monetary compensation due personally to the testator, etc. Objects that require permission to own, for example, weapons, are transferred if the heir has the appropriate license. Otherwise, such things will be implemented and the funds will be transferred to the applicant.
The estate includes not only the rights, but also the obligations of the testator. Thus, loans that the deceased took out during his lifetime will be repaid by the heirs, but with some restrictions. The creditor cannot demand from the heir more than the value of the rights transferred to him.
Basic rules for drafting
The procedure for drawing up the will of the testator consists of two parts. Firstly, the drafting of the document itself. Secondly, transfer to the notary for certification and storage of a sealed envelope with the text of the will.
The legal requirements for the document are as follows:
- Handwritten writing.
- The presence of the signature of the initiator of the last expression of will.
- The document is placed in an envelope and sealed until it is handed over to the notary.
- The envelope is handed over to the notary in the presence of witnesses.
Since a closed will must be written and signed by the testator personally, the conclusion suggests itself that only a fully capable person who does not have vision or health problems can draw up such a document without the help of third parties.
If another person helps in composing the text, the meaning of secrecy and secrecy is lost.
The document on the disposal of property in the event of death must comply with the general rules for drawing up a will.
The text of the document must indicate:
- Full details of the testator (full name).
- Information about place and date of birth, passport details.
- List of property in respect of which the order is made.
- Distribution of all or part of the property among the heirs.
- Information about the recipients of the inheritance (in full, so that there are no difficulties with their identification).
- Date, place and time of making the will.
How does signing take place?
In addition to the person who has expressed a desire to dispose of his property, two witnesses sign the closed envelope.
Failure to comply with the form and rules of preparation entails the invalidity of the document and the procedure as a whole.
Certification procedure
The notary certifies not the text of the document, but the fact of the transfer of the sealed envelope by the testator. The envelope with the applicant's last will, which was received in the presence of witnesses, and if their signatures are present, the notary places in another envelope. An authorized person inscribes on it in the prescribed form:
- place of acceptance of the envelope (address);
- details of the notary who accepted it;
- information about witnesses present during the notarial act.
In addition to the specified information, the number according to which the information was entered into the register, a mark on payment of the state duty, the seal and signature of the notary are affixed.
After all notarial actions have been completed and the rules and requirements for drawing up a will are explained to the applicant, he is given a document confirming the fact that the notary accepted the closed will - a certificate.
Opportunity to challenge
To minimize the risk of challenging a dying order, you should know the procedure for carrying out such a procedure and its features:
- it is impossible to begin legal disputes regarding the expression of will before the death of the testator;
- this procedure is possible only in court after filing an appropriate statement of claim;
- the person with the right of challenge is the heir, who would have the right to receive the property in the absence of a posthumous disposition;
- if the expression of will is declared invalid, the document drawn up earlier (if any) automatically comes into force; in the absence of another order, the property passes to the heir of the first priority;
- In order to recognize the expression of the last will as invalid, it is necessary to present to the court compelling reasons, which do not include minor flaws in the document that do not change the overall essence.
Advice Before deciding to initiate legal proceedings to invalidate the last will of the deceased, you should carefully weigh all the arguments and soberly assess the chances of success.
Features of a closed will
In accordance with established practice, only a document written in one’s own hand can be considered correct, and therefore valid.
Since the person authorized to perform notarial acts does not see the text of the document, it is not possible to check the correctness of its execution and completion. Therefore, there is a risk that a written order for the redistribution of inheritance may be invalidated due to incorrectness, inadmissibility or incompleteness.
In this case, the inheritance will be distributed according to the law, in accordance with the general procedure. As with the execution of an open declaration of will, the testator has the right to transfer property after his death to third parties who are not his relatives or direct heirs (subject to the rules of compulsory share).
The notary to whom the inheritance document is transferred for storage records the fact of transfer.
Another important aspect is that when transferring a closed will to a notary, at least two witnesses must be present.
Who can be a witness
It is not allowed for the witnesses who are present during the transfer of the closed expression of the will of the testator to be interested persons, including his close relatives.
It is prohibited to involve incapacitated, illiterate or mentally disabled persons as witnesses.
As a rule, friends and acquaintances of the applicant are invited as witnesses. They may be persons who are not interested in the distribution of the inheritance and who have agreed to be witnesses.
Citizens present must present identification documents with a mandatory photo.
The witness, in the presence of the notary and the testator, puts his signature on the envelope with the text of the last expression of will.
Who is entitled to a mandatory share in a will?
Despite the right of the owner to dispose of the property belonging to him at the time of death at his own will, there is a portion established by law that cannot be transferred to anyone other than certain heirs. Therefore, before making a will, we recommend that you familiarize yourself in more detail with which persons can claim a part of the property without fail.
Obligatory heirs who cannot be deprived of the right to property include:
- minor child(ren), natural and/or adopted,
- disabled children, spouse,
- other dependents.
More detailed information about compulsory heirs can be found in the article “Compulsory share in a will.”
To whom can property be bequeathed?
The definition of a will includes clarification of the unilateral procedure for expressing the will. The owner of the property has the right to bequeath everything to a stranger who is not a relative or family member. You can also bequeath an inheritance to any organization, legal entity, or state. You can also deprive certain heirs of the right to own the property of the testator by your order. You can leave everything to the conceived child who has not yet been born and is in the womb.
It would also not hurt to indicate the designated heir. This is done in case the main heir dies before the will comes into force or for other reasons is unable to take possession of the inheritance. Property can be distributed in any way among the heirs designated in the will. Divide an apartment into shares, for example. Or give an apartment to one son, cash investments to another. Usually a will is drawn up for all property.
Do not forget that there is property acquired jointly during marriage. This includes movable and immovable property, securities, shares in capital, deposits in credit and commercial institutions and organizations. This also includes all income from any type of activity of the spouses, labor, intellectual, entrepreneurial, pensions, benefits, subsidies, amounts received as a result of compensation for damage.
In the possession of one of the spouses is only everything acquired before the marriage, or received during the marriage as a result of donations and other types of gratuitous transfer of property and valuables.
First, the personal property of the testator is inherited and only then his share of the property acquired jointly during the marriage.
How content is announced
After receiving the death certificate of the testator, the notary sends letters to the legal heirs notifying them of the date and time and place of proclamation of the will of the deceased relative.
The opening and reading of a closed will is carried out by a notary in the presence of two witnesses, not close relatives or possible heirs.
A note is made in the accounting book about the opening of a will, in accordance with the Rules of notarial office work, approved by Order of the Ministry of Justice of Russia dated April 16, 2014 No. 78.
A copy of the certificate remains in the notary's file.
Deadline for opening a will
No later than 15 days from the date on which the death certificate of the testator was provided, the closed will is opened by a notary in the presence of the specified persons.
At the moment the envelope is opened and the text of the will is read out, a protocol is drawn up, which is then stored in the materials of the inheritance case.
A copy of it may be issued to heirs upon request.
The protocol records the fact of opening the envelope and the announcement of the last will of the deceased, the contents of the will.
The protocol is signed by the notary and the witnesses present. The original copy of the protocol is kept by the notary.
Challenging
The heirs may not agree with the will of the deceased. The law allows them to try to challenge even a closed document, taking into account the specified number of features:
- a document drawn up by a person who is known to be legally incapacitated is considered void;
- an order may be declared invalid in court if it was drawn up under the influence of a threat, blackmail, abuse of trust, deception, etc.;
- the deceased can dispose of the property that belongs to him and such right is properly formalized. However, the absence of a right to the property specified in the will does not make the document invalid or void;
- the order is invalidated only by judicial procedure. The application can be submitted by heirs or other interested parties, for example, owners of disputed objects;
- if the deceased is under the influence of drugs, alcohol or other events at the time of drawing up and could not account for his actions, then the will may also be declared invalid.
This procedure can only be carried out through the courts. The applicant must prove his case based on documents, witness statements and other admissible evidence.
Each will is revoked separately; it is impossible to revoke all orders in one lawsuit without making reference to each one. If additional orders are later discovered, they must be canceled by filing a new application and by way of a new trial!
A closed document is revoked in the same way as a will executed in the usual manner. After the will of the deceased is announced, all heirs have access to the document and, if they do not agree with it, they can file a claim in court at the place where the will was announced or at the location of the defendants, that is, other claimants to the property.
Cancellation or modification of a will
If for any reason the testator wishes to change his will partially or completely, he has the right to do so. You can familiarize yourself with this procedure in advance and, if necessary, change the will in a legally correct form. Or cancel it altogether.
This possibility exists throughout the entire period while the testator is alive. If the will of the testator changes, the last recorded will is accepted for execution if it is properly executed.
The article “Cancelling a will, changing a will” will help you learn how to do this.
Registration cost
The costs incurred by the applicant can be calculated independently or by contacting a specialist. The calculation takes place in accordance with the tariffs that are regulated by the state and those determined by the notary himself.
The amount set by the notary may vary depending on the conditions of execution of the document and the place of its transfer.
Detailed information about the financial costs associated with registration is presented in the article “Cost of registering a will”.
