Wills equivalent to notarized wills: who can certify wills besides a notary

Author of the article: Yulia Kaysina Last modified: January 2021 5648

Registration of inheritance is an extremely complex legal procedure, which begins with drawing up a will. Wills can be open or closed. In order for the testator’s order to have a legal basis, you should contact a notary to carry out a procedure such as certification of wills.

According to the Civil Code of the Russian Federation, this testamentary act must be drawn up according to the following rules:

the testator must write the will in his own hand;
In the act, he can indicate all the necessary nuances regarding the disposal of property;
the administrative act should not be drawn up under pressure on the testator, otherwise the law will be violated;
The document must contain the signature of the testator, and the will must also be certified by a notary.

Expert commentary

Potapova Svetlana

Lawyer

An important nuance should be taken into account. The heir does not have the right to be present when the order is certified by a notary, since these actions are contrary to the law.

Types of wills

A will is a unilateral transaction that provides for the legal consequences arising in connection with the death of the testator. The order must be made only in writing.

Wills are divided into two types, presented:

a special form approved by law;
in a simple written form, which must include all the main points of the testamentary act.

The special form of the document must be certified by a notary. A simple order is certified by the presence of two witnesses and the signature of the testator. This method is used only in emergency situations, when the life of the testator is at risk and he cannot create a will as required by law.

The main feature of such a document is that two witnesses must be present when writing it. The will is written by hand in free form. However, its text must set out all the nuances of disposing of property in the event of the death of the testator.

This document is of a temporary nature. It will lose force if the testator does not draw up an official testamentary act within a month.

44. Certification of wills

According to the Civil Code of the Russian Federation, property can be disposed of in the event of death only by making a will.

A will is
a unilateral transaction
that creates rights and obligations after the opening of the inheritance. It is committed only personally, individually and only by a citizen who at the time of its commission has full legal capacity.

The Civil Code of the Russian Federation establishes freedom of will. The testator has the right to make a will containing a disposition of any property, including that which he may acquire in the future. It should be taken into account that when certifying wills, testators are not required to provide evidence confirming their rights to the bequeathed property.

The testator can make a will in favor of one or more persons, both included and not included in the circle of heirs by law. Before the opening of the inheritance, the notary has no right to disclose information concerning the contents of the will, its execution, modification or cancellation.

A notarized will must be written by the testator or recorded from his words by a notary. When writing or recording a will, technical means (computer, typewriter, etc.) can be used. A will written down by a notary from the words of the testator must be fully read by the testator in the presence of the notary before it is signed. The will must be personally signed by the testator.

If the testator, due to physical disabilities, serious illness or illiteracy, cannot sign the will with his own hand, it, at his request, can be signed by another citizen in the presence of a notary. When drawing up and notarizing a will, a witness may be present at the request of the testator.

The Civil Code of the Russian Federation provides for the possibility of drawing up a closed will.

In this case, when making a will, the testator does not provide other persons, including the notary, with the opportunity to familiarize themselves with its contents. A closed will must be personally written and signed by the testator. In a sealed envelope, it is transferred by the testator to the notary in the presence of two witnesses, who put their signatures on the envelope. The envelope signed by the witnesses is sealed in their presence by a notary in another envelope, on which the notary makes an inscription containing information about the testator from whom the notary accepted the closed will, the place and date of its acceptance, the last name, first name, patronymic and place of residence of each witness in accordance with the identity document.

Certification of a testamentary document: Procedure

The procedure for certifying a will by a notary includes the following steps:

at the beginning of the procedure, the identity of the testator is clarified, and his legal capacity is also checked;
an employee of a notary office finds out the will of the testator and takes all necessary measures to ensure that he is not influenced by other people;
If the testator provides the notary with a ready-made order, then he must check it for legality and correctness of preparation. It is also worth considering that if the will is written by hand, then a pen should be used for this purpose, but not a pencil;
The will must be signed by the testator.

Expert commentary

Shadrin Alexey

Lawyer

Once the notary has certified the will, it comes into force and is considered valid. However, document information can only be made public after the death of the originator.

Article 1125 of the Civil Code of the Russian Federation. Notarized will

[Civil Code of the Russian Federation] [Art. 1125 Civil Code of the Russian Federation]

Table of contents:

Article 1125 of the Civil Code of the Russian Federation. Notarized will

Commentary on Article 1125 of the Civil Code of the Russian Federation

Judicial practice under Article 1125 of the Civil Code of the Russian Federation

Article 1125 of the Civil Code of the Russian Federation.

1. A notarized will must be written by the testator or recorded from his words by a notary. When writing or recording a will, technical means (electronic computer, typewriter and others) can be used.

2. A will, written down by a notary from the words of the testator, must be fully read by the testator in the presence of the notary before it is signed. If the testator is unable to personally read the will, its text is read out to him by a notary, about which a corresponding inscription is made on the will indicating the reasons why the testator was unable to personally read the will.

3. The will must be signed by the testator himself. If the testator, due to physical disabilities, serious illness or illiteracy, cannot sign the will with his own hand, it, at his request, can be signed by another citizen in the presence of a notary. The will must indicate the reasons why the testator could not sign the will with his own hand, as well as the last name, first name, patronymic and place of residence of the citizen who signed the will at the request of the testator, in accordance with the identity document of this citizen.

4. When drawing up and notarizing a will, a witness may be present at the request of the testator. If a will is drawn up and certified in the presence of a witness, it must be signed by him and the last name, first name, patronymic and place of residence of the witness must be indicated on the will in accordance with the document proving his identity.

5. The notary is obliged to warn the witness, as well as the citizen signing the will instead of the testator, about the need to maintain the secrecy of the will (Article 1123).

6. When certifying a will, the notary is obliged to explain to the testator the content of Article 1149 of this Code and make an appropriate inscription about this on the will.

7. In cases where the right to perform notarial acts is granted by law to officials of local government bodies and officials of consular offices of the Russian Federation, the will may be certified instead of a notary by the appropriate official in compliance with the rules of this Code on the form of the will, the procedure for its notarization and the secrecy of the will .

Article 1124 of the Civil Code of the Russian Federation | Article 1125 | Article 1126 of the Civil Code of the Russian Federation

Civil Code of the Russian Federation

Commentary on Article 1125 of the Civil Code of the Russian Federation

Article 1125 of the Civil Code of the Russian Federation regulates the notarization of a will.

The testator's will must be written by himself or drawn up from his words by a notary. When drawing up a will, technical means can be used, most often a computer or printer.

Article 45 “Fundamentals of the legislation of the Russian Federation on notaries” establishes certain requirements for writing a will. It is not allowed to have erasures or additions in a will, you cannot cross out words in a will or make unspecified corrections, or write the text of the will in pencil.

A will written by a notary must be read by the testator in the presence of the notary. If the testator cannot read it for some reason, then the will is read by the notary himself, indicating on this will the reasons why the testator could not read it. The most common reasons are: illiteracy, vision problems. Recognizing a citizen as incompetent is not such a reason; it forms the basis for canceling a will.

The will must be signed by the testator. If the testator cannot sign a will, another citizen who is an adult and fully capable does this for him. This signature is put by the specified citizen in the presence of a notary; the will itself indicates the reason why the testator could not personally put it, the data of the citizen who signed instead of the testator: his last name, first name, patronymic, place of residence. Among the reasons why a signature is made by a third party, instead of the testator, the commented article indicates the following: illiteracy, physical disabilities, illness of the testator.

The testator, when drawing up a will, may require the presence of a witness; the witness’s data is entered into the will itself. So the will must indicate: last name, first name, patronymic, place of residence of the specified person, all this data is not entered from the words of the witness, but is taken from his identification document, most often this is a passport. The witness himself also signs the will. The person who acts as a witness must have full legal capacity and reach the age of majority at the time of witnessing.

The witness, as well as the citizen who signed the will instead of the testator, are warned by the notary about maintaining the secrecy of the will until the opening of the inheritance.

If the testator does not speak the state language, and the notary does not know the language of the testator, then a translator is hired to translate the text of the will to the testator orally or in writing. If the text is translated in writing, then its translation must be reflected in the will itself to the right of the text of the state language and signed by the translator. The translator, like a witness or a person who signed the will instead of the testator, is obliged to maintain the secrecy of the will.

When certifying a will, the notary is obliged to explain to the testator the right of the heirs to an obligatory share in the inheritance. The translator's details: his name, surname, patronymic, place of residence are entered in the will. The specified information is taken from the identity document.

If a will is certified by an official of a local government body or by officials of consular offices of the Russian Federation outside its borders, it must be drawn up in accordance with the rules specified in the commented article and in compliance with the requirements for the form of a will and the secrecy of a will.

The will has legal force from the moment the testator signs, and in addition to the signature, he writes his last name, first name, and patronymic in words. This requirement is established in paragraph 41 “Methodological recommendations for the certification of wills, acceptance of a closed will by a notary, opening and reading of a closed will.”

Judicial practice under Article 1125 of the Civil Code of the Russian Federation

2-4905/2015 Decision of the Korolevsky City Court of the Moscow Region

2-5167/2014 ~ M-5106/2014 Decision of the Nizhnekamsk City Court of the Republic of Tatarstan

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Closed Will: Certification Procedure

This form of registration and confirmation of a testamentary act has nuances by which the document is certified:

The order is written by hand, without the intervention of unauthorized persons.
A closed testamentary document is handed over to the notary in a sealed envelope or paper folder.
The document is certified by a notary by affixing a signature on the envelope, as well as by making notes about informing the testator.
The notary, without opening the envelope, moves the order to another.
During this procedure, 2 witnesses who are not interested in the process must be present. In addition to their presence, they will also be required to sign.

Important! If all the above requirements are not met, the document is considered invalid. The envelope can only be opened after fifteen days from the date of death of the testator. The heirs and two witnesses must be present at the autopsy.

Sample of a notarized will

In order for a document certified by an employee of a notary office to be drawn up in accordance with all the rules applied to it, its structure should be studied before drawing up. The order must first be filled out by the preparer, that is, the testator must indicate to whom and what property will go after his death.

Once completed, the information is verified and confirmed by a notary in printed or written form. In his conclusion, the lawyer indicates that the will was drawn up correctly and does not have any violations in accordance with the legislation of the Russian Federation.

At the end of the verification, the notary signs the document and announces the amount of payment for his services.

Documents equivalent to a certified testamentary instrument

In legal practice, there are sometimes situations when, for a number of specific reasons, the testator cannot draw up a will with a notary. Russian legislation provides for a number of solutions to this issue in this case.

According to the law, these cases may be as follows:

a document certified by an official can be considered a notarized testamentary instrument;
if the testator is in a nursing home or hospital, then the heads of these institutions have the right to certify the document;
if the testator is on a ship flying the flags of his state, then the will can be certified by the captain of the ship;
if the testator is on an expedition, the head of the expedition can confirm the order;
if the testator is in military service, then his will is certified by the unit commander;
If the testator is serving a prison sentence in a colony, then the right to notarize the document is transferred to the head of the prison.

Expert commentary

Gorbunova Olga

Lawyer

When drawing up this order, a witness and a citizen must be present who will confirm the legality of the procedure being carried out.

Protection of freedom of will during notarization

The fundamental principle of inheritance law is freedom of expression (Article 1119 of the Civil Code of the Russian Federation “Freedom of a Will”). It will allow a citizen to dispose of acquired property as he pleases, with virtually no restrictions (the only obstacle is Article 1149 of the Civil Code of the Russian Federation “The right to an obligatory share in the inheritance”).

The testator cannot be subject to outside influence when writing a will, because it must reflect his personal conscious choice. Therefore, one of the areas of inheritance law and an additional act to ensure freedom of expression is the secret of posthumous injunction.

Reference. Information on the general principle of secrecy in the production of notarial acts is contained in Art. 5 of the Legislation of the Russian Federation on notaries “Guarantees of notarial activities.”

In Art. 1123 of the Civil Code of the Russian Federation “Secrecy of a Will”, citizens are obliged to remain silent about the essence of the will until the testator dies. These include:

notary certifying a document;
citizens who have been given the opportunity by law to certify orders;
executor of the will;
translator (if his participation was required);
assaulter;
witness to probate proceedings.

In the event that one of the participants violated the secrecy of a posthumous disposition during his lifetime, the testator may demand compensation from the violator for moral damage or resort to other methods of protecting his rights (change or termination of legal relations, receiving a penalty).

Art. 1123 of the Civil Code of the Russian Federation not only provides freedom of will. It also protects the inviolability of a person’s personal, family life and his own secrets. A citizen can freely create and express his will, which is reflected in a testamentary injunction, and be confident in its full implementation without outside influence.

Attested Will: The Contestation Process

There are often situations when, for certain reasons, it is necessary to start challenging a will. This procedure, carried out with a notarized document, is permitted in case of legal violations or errors. The process is usually lengthy and can take up to three years or more.

Proceedings regarding the challenge are carried out in court. The court will decide whether the testamentary act is legal or whether it should be recognized as illegitimate. The will is certified by a notary in accordance with the law. In this case, all established rules and procedures are observed. Knowing and taking into account these nuances, you can protect yourself from possible disputes regarding the procedure for obtaining an inheritance.