Testamentary refusal: what is it, what can be the subject of the document, whether the heir executes it, whether the use of the residential premises is real, and also for how long the right to receive it is valid

The concept of testamentary refusal

The legacy of a will or the so-called legacy dates back to the times of Roman law. Translated from Latin, “legate” is an order or purpose established by the testator in the will. In civil law, testamentary refusal means the will of the testator, by which he imposes on the heirs the obligation to perform certain actions in the interests of third parties.

This order is a unilateral transaction, the main purpose of which is to establish specific obligations to the heirs. At the same time, there is no talk of depriving heirs of the right to inherit.

The current Civil Code allows for the possibility of assigning a legacy to both the legal heirs and those appointed by the will, as well as to other citizens not included in the circle of heirs.

What is a testamentary refusal?

There are concepts that appear quite often in jurisprudence. The frequency of use of terminology is characterized by the frequency of cases to which it is directly related. That is why testamentary refusal is rather a particularity. Firstly, because few people make a will. Of course, thinking about what will happen after you is not the most joyful thought; many try to avoid the possibility of premature departure, so they often simply do not have time to draw up this important document.

Others, on the contrary, leave all their acquired goods to chance. However, after the opening of an inheritance, real wars often arise between relatives, which develop into conflicts, sometimes ending in litigation. If people who can stand up for themselves experience similar difficulties, what can we say about the socially unprotected layer of society?

In this case, if there are relatives who need to be taken care of, it is necessary to write a will, which also includes a testamentary refusal. Drawing up testamentary documents is not any kind of bad omen; it is a simple legal procedure that is ordered by people who care about what happens to their property after them. In this case, a testamentary refusal is a guarantor of decent provision for relatives in need of additional care.

The nature of a testamentary refusal is regulated by Article 1137 of the Civil Code of the Russian Federation.

Understanding in more detail what a testamentary refusal is, it can be noted that these are certain responsibilities that are assigned to the heir in favor of other people - legatees. These responsibilities are assigned for a period of three years, after which they are completely removed.

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The ornateness of the term is actually not difficult to understand. For example, there is an heir who could theoretically inherit all existing assets. However, the testator wants to give a certain share of his property to another person who, in his opinion, needs this share. However, for certain reasons, this person cannot independently manage the inheritance. If the inheritance were passed simply by law, the closest relative (the obvious recipient of the assets) would receive everything, but he receives the property with the caveat that a certain share will subsequently pass to another person. Thus, the will obliges the heir not to take part of the property, but the second person, in whose favor the legacy is made, to accept this property. That is why such a person is called a legatee.

The amount of the legacy is calculated taking into account the obligatory share of the testator's inheritance. Cost calculation is directly related to the application process. Expenses are calculated, expenses for the legatee, for ensuring the safety of assets that make up the main part of the refusal, expenses that must be spent on repaying the debt obligations of the testator. Several heirs carrying out the refusal are called joint and several debtors, that is, if there are no special instructions, the costs are divided equally.

The essence of testamentary refusal

The essence of a legacy is the right of the testator to impose a certain obligation on his heirs. The right of a person to a posthumous order is established and guaranteed by Art. 1137 Civil Code of the Russian Federation. This norm describes in detail the principles of operation of the subinstitution, as well as its content, subject, period, sample and procedure for execution.

According to the law, the fulfillment of the assigned obligation is carried out at the expense of the inherited property, the right to which passes to the heirs after the death of the testator.

A legacy can only be established in a will, the form of which must comply with the requirements of the law. Failure to comply with these instructions entails the invalidity of the transaction and, accordingly, the application of all the consequences of its invalidity.

The third party in whose interests the legacy is drawn up is called the legatee (legatee).

Testamentary refusal: what is it and how is it formalized?

A testamentary refusal and a testamentary assignment differ in that a legacy implies the transfer of a certain part of the entire inheritance mass, while an assignment is the execution of any other orders , including those of a non-property nature. As a rule, this is a condition for accepting the inheritance.

For example, this could be taking care of a pet. However, a system of control over this kind of order is not yet provided for by law; therefore, prosecution for non-fulfillment is possible only if the fact of cruelty to animals is revealed, entailing criminal punishment.

The subject of a legacy means various actions aimed at its satisfaction. All of them are listed in the relevant legislative article. Some of them are:

transfer of any property into ownership;
transfer of property into possession;
transfer of property for temporary or indefinite use;
payment of funds;

as objects :

performing any services or work;
providing care;
execution of any other instructions.

The legatee has the right to refuse the legacy. 3 years to make a decision , and if not accepted, the heir is legally released from fulfilling this inheritance obligation.

The heir may appoint another person as recipient, who will receive the right to claim the legacy if the first person refuses it. In addition, it is possible to deprive him of this right if he is found unworthy by the court.

The testator has the right to assign a refusal or assignment exclusively by will , which will indicate the heirs, the subject of the assignment and the persons in whose favor it is assigned. Oral instructions are unacceptable.

Moreover, they can be assigned to either one or several heirs.

If the will does not indicate specific names, then this disposition of a property nature must be implemented by each heir, in proportion to the share of the inheritance they receive.

If the heir fails to fulfill the obligations assumed by accepting the inheritance, interested parties have the right to demand their fulfillment through the court .

Reference! If the will is limited only by testamentary refusal, the legal heirs who received the inheritance are obliged to execute it.

There are situations in which the heirs are exempt from fulfilling these obligations, for example:

death of the legatee;
absence of inherited property due to the repayment of the debts of the testator;
The claim has expired.

MIP Encyclopedia » Inheritance » Inheritance by will » Testamentary refusal

A testamentary refusal means an obligation imposed on the heir or several recipients of the testator's property.

This order is a unilateral transaction, the main purpose of which is to establish specific obligations to the heirs. At the same time, there is no talk of depriving heirs of the right to inherit.

The current Civil Code allows for the possibility of assigning a legacy to both the legal heirs and those appointed by the will, as well as to other citizens not included in the circle of heirs.

Legislative regulation of legal relations arising during the implementation of a legacy

Legal relations between heirs and legatees are regulated by the section of the Civil Code of the Russian Federation devoted to the proper fulfillment of obligations between creditors and debtors. Only the person who has legal grounds to do so has the right to demand from the heirs the transfer of certain benefits.

The legatee has the right to receive a waiver only after the heirs have entered into the right of inheritance. An heir who has not accepted the inheritance is not obliged to implement the legacy established by the testator.

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Subject of testamentary refusal

A complete list of material and intangible benefits that may be the subject of a testamentary refusal is provided in paragraph 2 of Art. 1137 Civil Code of the Russian Federation. It should be noted that the subject of a legacy can be both the transfer of ownership and the right to possess certain property, as well as the performance of certain services or the transfer of property rights.

The transfer of the right to own a thing to the recipient does not provide for the possibility of disposing of it. Property can be disposed of only in the event of a transfer of ownership, which is provided for in the will, which contains a legacy.

So, the subject of a testamentary encumbrance can be:

1. The obligation established by the legate to make periodic or one-time cash payments in favor of a third party (legatee);

2. Transfer to the legatee of the right to own property;

3. Providing the recipient of the refusal with services specified by the legate;

4. Carrying out a number of works in the interests of the legatee;

5. Transfer of ownership of movable and immovable property to the legatee;

6. Transfer to the legatee of the right to use a certain thing. Use refers to the right to own a thing and extract useful properties from it;

7. Implementation of other obligations imposed by the testator on the heirs of the legate.

If the subject of the legacy is the transfer to the legatee of the testator's obligations to creditors, the fulfillment of the waiver is carried out at the expense of the inheritance. The recipient of the refusal is not liable for the debts of the testator, which is fundamentally different from the heirs, since the latter, along with the rights of the testator, also receive his obligations.

How to transfer real estate: will or deed of gift

The legate can act exclusively in relation to those persons listed in this document. No person other than the heirs named in the will can act as executor of the will of the testator in fulfilling the requirements of the legacy.

To receive a legate, the legatee must go to a notary . At the same time, it is worth remembering that you need to go only to the notary who was directly involved in the execution of this testamentary document. During this process, the notary must receive from the successor an application for receipt of the legacy, as well as a package of documents that establish his right to do so.

Based on a will, the testator has the right to oblige his heirs to perform any actions in favor of other persons (legatees) not named in the will. These actions are performed at the expense of the inherited property; the heir does not invest personal funds. Legatees can be any person not included in the circle of relatives.

Under a testamentary refusal (TA), the heir is obliged to take actions at the choice and desire of the testator himself. All of them are listed in Art. 1137 Civil Code of the Russian Federation. Generally speaking, the following groups are distinguished:

transfer of an item from the estate. The heir undertakes to transfer it into ownership, for temporary possession or use, or as specified in the order;
transfer of rights;
the purchase and transfer of a specific thing, the performance of work or the provision of a service.

In practice, ZO is often expressed in the transfer of any things from the apartment: furniture, dishes, interior details, books or objects of value - to a museum or other similar institution, payment of money in the specified amount, permission to use a dacha or library, live in the apartment until at some point.

A testamentary refusal is drawn up only in the form of a will, certified by any method provided by law. The following types of wills are distinguished:

notarial. It can be certified by any notary, regardless of the place of residence of the testator;
equivalent to notarial;
closed;
committed in emergency circumstances.

Legate form

Since the legacy is established in the will, the requirements for the form of its preparation are similar to those put forward in relation to the will itself.

A will with a testamentary disclaimer is drawn up in writing, therefore the oral form of expressing the posthumous order of the testator is not the basis for legal consequences. In addition, a mandatory condition for the validity of a document is its notarization.

When making a will equivalent to a notarized will, which contains a legacy, officials have the right to certify the will of the testator.

A testamentary refusal must be established in the will. A legacy established in a will that is not certified by either a notary or an authorized official has no legal force, as does the entire transaction.

Contents of the testamentary refusal

Since the mandatory appointment of heirs is not required to establish an encumbrance, the contents of the will can only constitute a testamentary refusal. In this case, inheritance is carried out according to the law, and the obligation to fulfill the posthumous order of the testator falls on the heirs who have entered into the right of inheritance.

Recently, cases of establishing a legacy have become more frequent, the subject of which is to assign to a person who is not an heir the responsibility for organizing funeral services related to the death of the testator. Although the list of items of testamentary refusal established by Art. 1137 of the Civil Code of the Russian Federation, obligations of this kind are not included; they do not contradict the requirements of the law, and therefore are permissible.

When certifying a will, the contents of which provide for the fulfillment of any obligation that does not contradict the law, the notary is obliged to explain to the testator that the provision of the service will be carried out at the expense of funds from the estate, and also, if possible, provide a sample of such an encumbrance.

The procedure for executing a testamentary refusal

The testamentary refusal is designed for a certain share, which is allocated in the general testamentary property. In order for the share to be described correctly, an inventory of all assets is usually made with the help of a notary. If there are several heirs under the will, the shares are divided either equally, the refusal is also divided equally, or certain shares and the degree of the assigned refusals are prescribed.

This regulation is prescribed by Article 1138 of the Civil Code.

In short, the obligation to fulfill testamentary conditions is assigned to citizens who are directly related to the receipt of the assets declared by the testator. Testators should understand that the execution of a legacy lasts for some time, and not constantly.

According to Article 1137, a will may consist entirely of a testamentary disclaimer, or contain a disclaimer in parallel with the main will.

To receive a legacy, the legatee must visit the notary in charge of the inheritance case, write a corresponding statement, certified by a notary, and tell you what title documents must additionally be provided.

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Testamentary refusal and testamentary assignment: similarities and differences

Testamentary refusal and testamentary assignment are the burdens of the testator established in the will. They are aimed at carrying out certain actions. Despite the general nature of these two concepts, there are a number of differences between them, including:

The concept of “testamentary assignment” presupposes non-property encumbrances. For example, when the testator assigns responsibility for caring for a pet;
the person to whom the assignment is intended is not specified. The obligation falls on all heirs who have entered into the right of inheritance, in proportion to their shares in the inheritance. In turn, the right to receive a testamentary refusal applies to certain persons, the list of whom is established by the will.

What are testamentary refusal and testamentary assignment?

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A document not duly certified cannot be considered a valid will, in which:

the property and/or property rights that are bequeathed to the heirs are not indicated;
the persons whom the testator identified as heirs are not indicated;
the place and date of its certification are not indicated (with the exception of a closed will, when the place and date of its adoption are indicated on the envelope of documents).

A testamentary refusal, as it is also called a legacy in jurisprudence, is represented only by property claims. These may be demands aimed at repaying debt obligations. In this case, the recipient of debts can be one creditor or several. And one heir may be responsible for repaying debts to several creditors.

Conditions may be associated with property that is inherited. In any case, at the stage of opening the inheritance case, the notary checks the legality of the will, as well as the legality of the specified legacy. If the condition violates the interests of other participants in legal relations, then the notary is authorized to revoke the will partially or completely.

Example:

Citizen Ikaeva made a will, by which she transfers her apartment to her official husband Ikaev S. A bank deposit in the amount of 500,000 rubles, accumulated before registering the marriage, is transferred by citizen Ikaeva to her minor daughter. The will specifies the obligation of the official husband to provide his minor daughter with the opportunity to live in an apartment until she reaches 30 years of age. If the daughter has children, they also have the opportunity to live on the property and use it for its intended purpose.

Deadline for receiving the legate

Within 3 years after the death of the testator who left the legacy, third parties in whose favor it was drawn up have the right to use the benefits provided by him. When the three-year period has expired, the testamentary refusal loses its legal force, as a result of which the legatee, who did not declare his right in time, will no longer be able to use it. Accordingly, the heir is released from the obligation to fulfill the legacy (clause 3, article 1138 of the Civil Code of the Russian Federation).

To avoid this, the testator can indicate another legatee in the will, that is, sub-designate the beneficiary of the refusal. The sub-appointment is carried out so that the second legatee can take advantage of the testamentary refusal in the following cases:

in the event of the death of the legatee before the opening of the inheritance;
death of the legatee at the same time as the testator;
renunciation of the legatee's right to receive a legate;
if the recipient of the refusal was unable to take advantage of the benefits provided to him as a result of missing the three-year period established by law;
recognition of the legate as an unworthy heir.

Article 1138 of the Civil Code of the Russian Federation. Execution of a will (current version)

1. According to paragraph 1 of the commented article, the heir to whom the testator has entrusted a testamentary refusal, if he accepts the inheritance, must fulfill it within the limits of the value of the inheritance passed to him minus the debts of the testator attributable to him. If the heir to whom the testamentary refusal is entrusted has the right to an obligatory share in the inheritance, his obligation to fulfill the refusal is limited to the value of the inheritance transferred to him, which exceeds the size of his obligatory share. Thus, under no circumstances should he be liable with his own property for the obligation arising from the testamentary refusal.

In addition, if the amount of debts turns out to be equal to the amount of property that must be transferred by virtue of the testamentary refusal, the execution of the testamentary refusal will also become impossible. In this case, the heir, who is entrusted by the testator with the execution of the testamentary refusal, must fulfill it only within the limits of the actual value of the inherited property transferred to him, which exceeds the size of his obligatory share.

Thus, the law establishes a limited scope of execution of a testamentary refusal.

Situations are possible when the legatee and the heir are the same person. In this case, the right to accept a testamentary refusal does not depend on the right to accept an inheritance and it is possible to accept an inheritance without accepting an obligation arising from a testamentary refusal.

2. Situations are possible when a testamentary refusal is assigned to several heirs. In this case, a shared liability arises for each of the heirs who are entrusted with such responsibility.

3. Clause 3 of the commented article lists cases when the right to bequeath a will, although provided for in the will, does not arise and, accordingly, the heir is released from the obligation to execute it.

These can be either objective reasons (the death of the legatee before the opening of the inheritance or at the same time as the testator), or subjective reasons - deprivation of the right to receive a testamentary refusal on grounds of recognition as unworthy or if the legatee does not confirm the desire to acquire this right within three years from the date of opening of the inheritance .

By establishing a legacy in a will, the testator, as a rule, wants to provide some material security to a strictly defined person. It should also be noted that granting the legatee the right to transfer the right he has acquired to a third party would violate the requirements of Art. 383 of the Civil Code of the Russian Federation, which established the impossibility of transferring to another person rights that are inextricably linked with the personality of the creditor, as is the case in this case.

The exception is when another legatee is assigned to the legatee.

As correctly noted, in relation to a sub-designated legatee, the same rules apply as those established for the main legatee (Articles 1137 and 1138), with the exception of the start of the three-year period for exercising the right to a legacy. This period should be calculated not from the moment the inheritance is opened, but from the day the designated heir acquires the right to bequeath a will (see paragraph 2 of Article 1154, which should be applied by analogy).

———————————

Commentary on Part Three of the Civil Code of the Russian Federation (article-by-article) / Ed. A.L. Makovsky, E.A. Sukhanov. Lawyer, 2002. P. 92.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO PART THREE OF THE CIVIL CODE OF THE RUSSIAN FEDERATION”

S.P. Grishaev, 2018

Grounds for a legatee’s refusal to receive a legate

The right of a legatee to refuse to accept a legacy is guaranteed by Art. 1160 Civil Code of the Russian Federation. This standard provides:

inadmissibility of using coercive measures against the legatee;
free disposal by the legatee of his subjective rights.

A refusal in favor of another citizen or subject to prohibition by law may be declared invalid by the court at the request of interested parties. If the legatee refuses to accept the legacy, the obligation of the heirs to fulfill it ceases.

The exception is cases when the testator has appointed in the will another legatee, in whose favor the testamentary refusal is executed.

The right to use residential premises by testamentary refusal

The most popular subject of testamentary encumbrance is the transfer to the legatee of the right to use residential premises or a separate part thereof.

Features of the right to use housing on the basis of a legacy:

the use of residential premises provided by testamentary refusal is established both for the entire life period of the legatee, and for a certain period, regardless of the change of owner of this housing;
the Housing Code of the Russian Federation states that the legatee bears joint and several liability with the legal owner for obligations related to the use of housing arising during the validity of the legate;
the legatee may require state registration of his right. It should be noted that due to the lack of an appropriate mechanism, registration of the legatee’s right to use property often raises many questions.

An example of such an encumbrance: the testator bequeaths a house or apartment to a minor child, but at the same time establishes a legacy in the will.

The subject of the legacy is to grant the testator's wife the right to lifelong use of this property. Proper execution of a will provides housing for both the child and the wife of the testator, excluding the possibility of an unfavorable development of the situation after the death of the latter.

Problems arising when implementing a testamentary refusal

After the death of the testator, the legatee, subject to the presence of a refusal in the will, receives from the notary the relevant title documents confirming his right to material or intangible benefits defined in the text of the will.

According to notarial regulations, such a title document may be a certificate of the rights of the legatee.

However, in practice, many legatees are faced with the problem of notaries refusing to issue such a document, who justify their actions by the presence of relevant information in the certificate of inheritance.

This state of affairs is often an obstacle for the recipient of the refusal to exercise his right, since its use depends entirely on the heir and on whether he will enter into the right of inheritance or not.

In cases of controversial situations regarding such an encumbrance, namely its non-fulfillment or improper fulfillment, the recipient of the refusal has the right to defend his rights in court.

Also, the person appointed as the recipient of the refusal may demand compensation from the heirs for losses incurred by him. Moreover, the amount of claims does not depend on the value of the inheritance. The statute of limitations within which a claim can be filed is 3 years.

Testamentary disclaimer or will