Is it possible to indicate a mortgaged apartment in a will: legislative norms, necessary documents

Is it possible to bequeath an apartment with a mortgage?

In Art.
1120 of the Civil Code of the Russian Federation states that any property can be bequeathed, including that which will be acquired in the future. In accordance with Art. 1112 of the Civil Code of the Russian Federation, the main condition is that the apartment must be owned by the testator. Real estate can be bequeathed after it is registered in the name of a citizen. Reference! The consent of the financial institution to include the apartment in the mortgage in the will is not required. A citizen has the right to bequeath real estate in accordance with Art. 37 of Law No. 102-FZ of February 16, 1998. If a credit institution includes clauses in an agreement prohibiting doing this, then they are declared void in court.

An apartment with an encumbrance can be inherited by:

  • relatives;
  • strangers indicated in the will;
  • legal entities, if at the time of inheritance they are listed in the Unified State Register of Legal Entities.

A citizen can indicate one or several legal successors. If there is no will, then the mortgaged apartment will be inherited by law.

Owner's rights under the law

In the Russian Federation, the law determines the list of rights of the owner of living space.

The Housing Code establishes the following list of actions:

  • possession, operation and disposal;
  • transfer to individuals;
  • transfer to legal entities.

Rights come with certain responsibilities:

  • incurring expenses for maintaining property;
  • maintaining order, careful handling of property at home, and respect for the rights of neighbors.

Conditions for bequeathing a mortgaged apartment

To include encumbered real estate in a will, the following nuances must be taken into account:

ConditionsThe legislative framework
Ownership rights are registered in RosreestrArt. 1112 Civil Code of the Russian Federation
The document is written of the free will of a competent adult citizenArt. 1118 Civil Code of the Russian Federation
The will is drawn up in writing and certified by a notaryArt. 1124 Civil Code of the Russian Federation
A citizen is not obliged to warn anyone about the preparation, changes or cancellation of a documentArt. 1119 Civil Code of the Russian Federation

A mortgaged apartment is included in the inheritance estate, like other types of property, therefore it is subject to the right to allocate a mandatory share. It can be claimed by minors or incapacitated citizens living in the property together with the testator, or persons who are his dependents.

Inheritance registration process

To arrange inheritance of the mortgage in the event of the death of the borrower, relatives have 6 months. During this time, they are required to come to the notary at the location of the property or the registration of the deceased and write a statement. There are two options: accepting the property or refusing it.

Important! Acceptance of an inheritance is a right, but not an obligation, of relatives or other persons under a will. A statement is written at the notary's office, and applicants for the inheritance open an inheritance case

Citizens must have the following documents with them:

A statement is written at the notary's office, and applicants for the inheritance open an inheritance case. Citizens must have the following documents with them:

  • passports;
  • death certificate of the testator;
  • extract from the house register;
  • mortgage agreement;
  • extract from the Unified State Register of Real Estate.

The deadline for accepting the property estate of the deceased cannot be missed. The law allows it to be restored in Art. 1155. The notary does not take part in this procedure. Only the court can resolve the issue with a missed deadline. He makes a positive decision regarding the person who missed the deadline if the latter indicates the presence of good reasons. A late claimant goes to court if the heirs who have accepted and are using the inheritance do not agree to share it with him. If they show a sound position, then it is necessary to conclude an amicable agreement regarding the disposal of the property already accepted.

There is the concept of actual acceptance of the mortgage inheritance. According to Art. 1153 of the Civil Code of the Russian Federation, a person is recognized as having actually accepted an inheritance if it turns out that he has taken all the necessary measures to maintain it, uses it, bears the costs of its maintenance, etc. Despite the existing actions, he is obliged to come to the notary and draw up all the documents.

When the mortgage debt is paid by the insurance company

According to Art. 1175 of the Civil Code of the Russian Federation, the heirs, accepting property from the deceased, are also responsible for his debts. A mortgage is a loan taken out by the testator during his lifetime. The man passed away, but the debt remained. The bank rightly expects its repayment, with interest.

But the assumption of a financial obligation by the heirs, which is imposed on them due to the loan of the deceased, is not an unconditional requirement. In most cases, banks require a potential borrower to enter into an insurance contract. The policy increases the cost of the loan, but for the bank it is money return insurance. Having a burning desire to buy an apartment with a mortgage, citizens usually agree to sign an insurance contract. The borrower receives a non-property (personal) insurance policy. Otherwise, if a person refuses to draw up an insurance contract, the bank will refuse to issue a mortgage loan.

The heirs, having learned from the notary that the deceased had an insurance policy in hand, are obliged to contact the insurance company. This is due to the fact that the insurance company is obliged to repay the mortgage debt to the bank. But only when the death of the testator falls under the insured event specified in the non-property insurance policy.

Important! The bank, in principle, does not care who pays its bills. Therefore, the credit institution will not look for an insurance organization and demand mortgage insurance coverage from it.

It is much easier to transfer the responsibility to the heirs. It is in the interests of the latter to find the organization specified in the insurance policy.

Features of the will of a mortgaged apartment

The main feature of the procedure is that along with the property, mortgage debts are also transferred to the heirs.
It is impossible to refuse to fulfill obligations and obtain ownership of the property. The exception is when the borrower purchased a life insurance policy when applying for a mortgage. Then the debt to the bank is repaid by the insurance company.

shares in the apartment

A citizen can appoint several legal successors. In this case, they will own the apartment as shared ownership. The legal successors are obliged to repay their obligations to the bank in proportion to the part they received as an inheritance.

to a minor child

A minor child may be indicated in the will if he does not receive a mandatory share in the apartment. His interests in the inheritance matter will be represented by a legal representative (parent, guardian, trustee).

A minor is exempt from paying state fees upon entering into an inheritance. If the apartment is encumbered, then the mortgage payments will have to be paid by the child’s legal representatives. In the absence of such an opportunity, adults can refuse the inheritance after receiving permission from the guardianship and trusteeship authorities. If the legal representatives have paid off the mortgage, then after the child reaches adulthood, they can file a lawsuit to recover the funds paid.

An apartment purchased with maternity capital is registered in the name of all family members, including minors. Parents can inherit only their part of the property to any successor.

Subject of the will

Testators, as a rule, mean by the subject of the will the apartment itself (square meters). In fact, all outstanding obligations under the mortgage are transferred to the heir. That is, when receiving a mortgaged apartment by will or law, the heir must pay not only the remaining amount of the loan, but also the debts of the testator. The mortgage agreement, accordingly, is re-registered to the heir.

As for the amount of the loan to be repaid, it may be different under the new agreement. The size of your mortgage depends on many factors. One of the determining factors is real estate insurance. Insurance increases the cost of the mortgage, but is a necessary condition for drawing up a mortgage loan agreement. The life of each borrower is accordingly insured. If the death of the testator falls within the definition of an insured event, the insured amount goes to repay the debt. The heir will only have to pay the remainder of the mortgage. As a rule, the debt is repaid in one payment, unless separate terms are specified in the mortgage agreement.

Making a will

The contents of the will are determined at the discretion of the testator. The law provides for his right to put forward conditions for the heir to receive ownership of the property. The status of the property does not matter (owned, pledged under a mortgage).

Professional lawyers will help you draw up a will correctly and take into account all possible pitfalls in the case of mortgaged real estate. Trusting specialists is a rational decision. They will help you draw up the document in such a way that the inheritance does not become a serious problem for the future.

What apartments can be bequeathed?

Probate of mortgaged apartments is a specific procedure. It is worth noting that there are no restrictions on the types of bequeathed real estate. You can bequeath an apartment:

  • just purchased with a mortgage;
  • partially paid;
  • the loan for which is practically repaid;
  • with mortgage debts.

Any mortgaged apartment received as an inheritance can theoretically be sold in order to pay off the debt for it. But practice shows that finding a buyer for such real estate is not easy.

How to make a will?

It is necessary to bequeath real estate in compliance with the norms of current legislation. The document must be notarized. It can be drawn up and signed either directly in the office or at home, in a clinic, etc.

When drawing up a will for a mortgaged apartment, consulting a lawyer will be useful. The specialist will study the mortgage agreement and related documents, and warn the testator about possible problems that the heir may encounter in the future.

Do you need qualified assistance in drawing up a will for a mortgaged property? We offer cooperation on favorable terms and guarantee to maintain the secrecy of the will, if there is a need for this.

Step-by-step instructions: how to bequeath a mortgaged apartment

To bequeath a mortgaged apartment, you must adhere to the following algorithm:

  1. Collect the necessary documents.
  2. Contact a notary.
  3. Pay the state fee.

A self-drafted will must be written personally by the citizen and certified by a notary (Article 1124 of the Civil Code of the Russian Federation). You can contact any office, but it is better to choose one at your place of residence, since this is where the inheritance case will be opened.

The notary can offer a standard will template. When drawing up a document, an official is allowed to use technical means (Article 1125 of the Civil Code of the Russian Federation).

The will can be drawn up either immediately after purchasing a home, or after a time when part of the loan is repaid.

List of documents

When visiting a notary, you must provide the following documents and their copies:

  • identification;
  • title documents for the apartment.

There is no need to provide the mortgage agreement to the notary.


When preparing a document, you must pay a state fee of 100 rubles. for its notarization (Article 333.24 of the Tax Code of the Russian Federation). If the will is closed, then you will need to pay 300 rubles for its reading by a notary.

Payment by insurance

Insurance payments in the event of the death of the owner of the mortgaged home pay off the remaining amount, that is, the insurance company assumes the obligation to pay off the remaining mortgage amount and additional compensation in the amount of 10%.

But not everything is so simple; when signing an insurance contract, a large list of situations is indicated that are not covered by insurance, that is, that are not subject to payment if they arise:
  • radiation;
  • deprivation of life by suicide, etc.

As a rule, payments are made if a citizen dies from illness or accident. In most of these cases, insurers try to find evidence of death due to chronic diseases that were hidden at the time the agreement was signed. You should always carefully study the agreement and you can always contact lawyers, and then go to court.

Inheritance of mortgaged property is a procedure that imposes obligations on the heir to repay the remaining amount, but do not be alarmed since in most cases the bulk of the debt has already been repaid by the deceased testator. As a rule, banks cooperate and make a number of concessions in relation to the heirs, thereby facilitating the repayment of the mortgage loan.

Questions from our readers

Can an heir refuse a mortgaged apartment?
The testator may choose one or more legal successors. New owners have the right to refuse their part if they do not want to take on debt obligations. In this case, the share of the real estate will become the property of the bank. When all the heirs do not want to take on obligations, the financial institution takes the entire apartment and sells it at auction. If the proceeds are not enough to pay off the debt, then the remaining portion is written off by the bank.

In accordance with Art. 1157 of the Civil Code of the Russian Federation, a refusal can be issued either in favor of someone else specified in the will, or without specifying a specific person. It is impossible not to accept only part of the inheritance.

To formalize the refusal, you must submit a corresponding application to the notary’s office where the inheritance case has been opened. A citizen may not accept an inheritance if he does not contact an official within months. If the notary has information about the place of residence or work of the heirs indicated in the last will, then he will have to notify them about the will.

What does the law say?

A will involves transferring to the heirs the rights to use property and all obligations that should not be associated with the person of the testator. Article 1120 of the Civil Code provides that the document may indicate any property, even one that will be acquired after some time.

Another article emphasizes that the main condition here is the fact that the property must belong to the testator.

Do these articles apply to mortgages? According to the law, the borrower (who in our context is the testator) is the owner of the mortgaged apartment, and therefore it belongs to him. In addition, this property will actually be purchased after a certain time (when the debt is repaid).

That is, all the conditions necessary for drawing up a will are satisfied here. Accordingly, the mortgaged apartment can be inherited.

However, until the loan is repaid, the heir will bear the burden of the mortgage.

It is also important for the borrower to know that the creditor bank does not have the right to prohibit him from transferring the collateral property by inheritance. Some unscrupulous credit organizations manage to include such a clause in the terms of the agreement. But this is against the law. In any case, any court will recognize such a decision of a credit organization as illegal.

If a will is not drawn up for the property, it will be divided among all legal successors of the borrower. Each of them will have to pay their proportionate share of the mortgage debt.

If the will of a mortgaged apartment is written in favor of one heir, then the rest are freed from the burden of repaying the debt. However, the heir has the right to refuse to repay the debt, then the bank will simply sell the mortgaged apartment at auction.

The borrower has the right to draw up such a document at any time. It is indefinite. It often happens that when the heir assumes his rights, the debt has already been fully repaid.

The borrower is not required to inform the creditor bank when making a will. This is his free will. If such a clause is specified in the contract, then it is void.

Underwater rocks

Citizens should consider the following nuances:

  1. Relatives who disagree with the last will of the testator have the right to challenge the will. The procedure is carried out through the court and only if there are compelling reasons, for example, doubts about the legal capacity or mental state of the testator. Therefore, when drawing up a document, it is recommended to provide the notary with a certificate from a psychiatrist.
  2. If spouses are planning a divorce, they must first divide their marital property. Each of them can only bequeath their share in the property.
  3. Not only relatives, but also other interested parties have the right to file a lawsuit regarding the invalidity of a document. The grounds may include violations of the form and procedure for authenticating the document, illegal actions against the testator by the heirs.
  4. If the will does not indicate relatives, then this cannot be a basis for challenging it. Dependents and minors must receive a mandatory share. The owner can dispose of the rest of the apartment at his own discretion.

How to avoid contesting a will

To prevent interested parties from challenging the will, it is necessary to provide the notary with a certificate of mental health.

When drawing up a document, you should take into account the interests of applicants who have the right to an obligatory share in the inheritance. If the untested share is not enough to satisfy their property rights, it is reimbursed from the bequeathed share.

In case the heir is recognized as unworthy (this is possible under Article 1117 of the Civil Code of the Russian Federation if he intentionally commits illegal actions against the owner of the apartment or other legal successors), an heir should be appointed.

Before signing, it is important to check the document for errors in the data and address of the property being inherited.

The owner of an apartment with a mortgage has the right to leave it to descendants or close people who are not relatives, taking advantage of the opportunity to draw up a will. The bank may indicate in the agreement that the borrower does not have the right to transfer the mortgage by will, but knowing the laws, this clause is easy to challenge.

When thinking about who to leave an inheritance to, do not forget that loan debts are part of the property, and by accepting a mortgaged apartment, the heir receives an encumbrance. The lawyers of the portal will tell you how to draw up a will without infringing on the rights of potential successors or burdening them with an unbearable burden.

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