Sample statement of claim to establish the fact of kinship, restore the term for accepting an inheritance, recognize property rights by inheritance - Lawyer in Samara and Moscow

Which is correct: recognition or declaration of death

Article 45 of the Civil Code of the Russian Federation talks specifically about declaring a citizen dead:

A citizen may be declared dead by a court if at his place of residence there is no information about his whereabouts for five years, and if he went missing under circumstances that threatened death or giving reason to assume his death from a certain accident - within six months .

Similarly, Article 276 of the Code of Civil Procedure of the Russian Federation speaks of declaring a citizen dead and recognizing him as missing.

Therefore, it would be correct to submit an application to the court to declare the citizen dead; at the same time, the application to declare the citizen dead will also be accepted by the court.

Note!

Application for recognition as missing

Grounds for declaring a citizen dead

Regardless of the subject of the litigation, the applicant must provide evidence of the stated claims. In addition, there must be grounds for starting a court hearing.

Circumstances for declaring a citizen dead

No.	Circumstance	A comment	Process initiation time
1	There is no information about the location of the individual	A prerequisite is to be placed on the federal wanted list.	5 years after receiving the last information about the citizen
2	Subject has gone missing	The fact occurred when there was a threat to the life of a citizen or circumstances suggesting that he died from an accident	You can file a claim after 6 months
3	Death of a serviceman or other citizens during hostilities	Relevant only for those in the combat zone	At least 2 years after the end of the war

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The date of death of a person is considered the day when the court decision is given legal force. An exception may be the recognition of the subject as deceased due to circumstances threatening death. The estimated date of death of the citizen can be indicated here.

Grounds for declaring a citizen dead

To declare a citizen dead, it is necessary that there is no information about him at his place of residence for more than five years. An exception is if a citizen disappeared under life-threatening circumstances. In such a case, there must be reasonable grounds to believe that he died from a specific accident. For example, fire, flood, etc. Then the application can be submitted six months after the incident.

The absence of information at the place of residence means that the citizen did not perform any legally significant actions at that time. He did not apply to government agencies, did not register or deregister, did not receive documents, did not use a bank card, etc. In addition, at this time, no one should see the citizen at his place of residence. Usually, for convenience, the period is calculated from the date of application to the internal affairs bodies with a search statement.

Life-threatening circumstances refer to situations where it is obvious that a person is likely to die. However, his body was not found. Such cases include earthquakes, landslides, mountain collapses, shipwrecks, plane crashes and similar situations that really threaten death.

If the period of 5 years has not yet passed, the interested person may consider applying to the court to be declared missing.

Conditions for declaring a citizen dead. Day of death

The day of death of a citizen declared dead is the day the court decision to declare him dead comes into force.

If a citizen who has gone missing under circumstances threatening death or giving reason to assume his death from a certain accident is declared dead, the court may recognize the day of death of this citizen as the day of his alleged death.

How to draw up an application to declare a citizen dead

A feature of the application for declaring deceased is the need to indicate the purpose of going to court (see comments to Article 277 of the Code of Civil Procedure of the Russian Federation). The applicant can be not only close relatives, but also persons who have a legal interest in declaring the citizen dead. And in the text of the application, the applicant clearly indicates for what purpose the citizen should be declared dead. For example, divorce, deregistration, registration of inheritance.

The application for declaring a citizen dead must set out the circumstances of his long absence or presumed death. These circumstances should be stated in as much detail as possible, citing references to the documents received and indicating the search measures taken. As a rule, before a citizen is declared dead, search activities are carried out, certificates and documents are collected. Absence from the place of residence is confirmed by witnesses, who may be neighbors and relatives.

Application to declare a citizen dead. Approximate sample. Submitted to the district (city) court

An application to declare a citizen dead is submitted to the court at the place of residence or location of the interested person. The procedure for declaring a citizen dead and the requirements for an application to declare a citizen dead are determined by Chapter 30 (Articles 276 - 280) of the Civil Procedure Code of the Russian Federation. In accordance with Part 3 of Article 278 of the Code of Civil Procedure of the Russian Federation, cases of declaring a citizen dead are considered with the participation of the prosecutor.

Example (sample) of an application to declare a citizen dead:

To the Petrogradsky District Court

St. Petersburg

Applicant: Dmitriev Sergey Ivanovich, living at the address: 197110, St. Petersburg, Levashovsky Ave., building 41, apt. 7.

Interested person: Civil Registry Office Department of the Petrogradsky District of St. Petersburg, address: 197101, B. Monetnaya St., 17.

Interested person: Department of the Federal Migration Service of Russia for St. Petersburg and the Leningrad Region in the Petrograd region, address: 197101, Bolshaya Monetnaya st., building 27.

Prosecutor of the Petrogradsky district of St. Petersburg, address: 197101, St. Petersburg, Bolshaya Monetnaya, building 27A.

State duty 200 rubles

APPLICATION to declare a citizen dead

I, Sergey Ivanovich Dmitriev, am the son of citizen Olga Ivanovna Dmitrieva, born November 12, 1935, a native of the Dmitrovka farmstead, Rostov region, registered at the address: St. Petersburg, Engels Ave., house 187, bldg. 2, apt. 134, passport of citizen of the USSR III OK No. 765271, issued by the Leninsky District Department of Internal Affairs of Grozny on June 18, 1978.

At the end of July 2005, my mother Dmitrieva O.I. went to visit my now deceased sister Ivanova (Dmitrieva) Maria Ivanovna and her now deceased husband Alexander Grigorievich Ivanov in Chelyabinsk. In 2007, Ivanov A.G. he told me by phone that his wife (my sister) Ivanova M.I. died. About a year before her death, my mother, after staying with them, went back to St. Petersburg. He could not give the exact date. From that time on, I know nothing about my mother’s fate. In order to establish the whereabouts of my mother, I repeatedly submitted applications to the police to search for her. The whereabouts of my mother were not identified by the police, her fate is unknown. I have been searching for more than five years, but they have not yielded any results. All of the above can be confirmed by the following witnesses: 1. Full name, residing at the address: St. Petersburg, Yuzhny pr., building 151, apt. 78; 2. Full name, residing at the address: St. Petersburg, Stakhanovtsev St., building 34, building 3, apt. 19.

I need the declaration of the mother of the deceased to register the right to her 1/2 share in the ownership of the apartment at the address: St. Petersburg, Levashovsky Prospect, building 41, apt. 7, registration of the right to a deposit opened in her name in Sberbank of Russia, and deregistration at her place of residence, which will allow me to reduce the amount of utility bills. Based on the above and in accordance with Art. 45 of the Civil Code of the Russian Federation and Art. 276 Code of Civil Procedure of the Russian Federation,

Ask:

Announce my mother, Olga Ivanovna Dmitrieva, born November 12, 1935, a native of the Dmitrovka village, Rostov region, registered at the address: St. Petersburg, Engels Ave., house 187, bldg. 2, apt. 134, deceased. Appendix: 1. Copies of the application for the interested person; 2. Receipt for payment of state duty; 3. Copy of birth certificate; 4. Certificate Form 9; 5. Certificate Form 7; 6. Resolution to refuse to initiate a criminal case; 7. Responses to requests regarding missing location information; 8. Certificate from the registry office confirming the absence of a death certificate;

August 30, 2013 ____signature___ Dmitriev S.I.

Note: In accordance with Part 2 of Article 46 of the Civil Code of the Russian Federation, a citizen declared dead, regardless of the time of appearance, has the right to demand from any person the return of his remaining property, which was transferred to him free of charge after the citizen was declared dead.

Filing an application for declaration of death in court

An application to the court for recognition (declaration) of death is submitted by any person who has an interest in this issue. The case will be considered by the court at the applicant’s place of residence (Article 276 of the Code of Civil Procedure of the Russian Federation). The applicant must provide the court with evidence confirming the absence of information about the citizen at the place of residence for 5 years or the circumstances of the presence of a threat of death.

The state fee is 300 rubles. Interested parties are citizens whose rights and legitimate interests may be affected by a court decision, for example, heirs. If there are none, you can indicate as an interested party the body to which the court decision will then be presented, for example, the Civil Registry Office or the Pension Fund of the Russian Federation.

The procedure for declaring a citizen dead

The procedure for declaring a citizen dead is similar to that for declaring a missing person.

Thus, the regulation of the procedure is carried out on the basis of Articles 276-280 of the Code of Civil Procedure of the Russian Federation. The regulations establish the following procedure for carrying out actions:

interested citizens submit a written application to declare the citizen dead to the court at their place of residence;
the petition for the court indicates the purposes for which the trial procedure is launched, as well as the circumstances that entail the assumption of the biological death of the missing person from an accident or other causes with a high probability of death;
if a petition to declare a person dead is filed in relation to a military serviceman and other citizens injured as a result of military operations, the document for the court must indicate the date of the end of military operations;
the application is accepted by the court and a hearing is scheduled;
the court identifies persons and organizations that allegedly have information about the missing person;
in the presence of appropriate circumstances and after the expiration of the deadlines established for recognition as deceased, a decision is made;
the court instructs the territorial guardianship authority to establish a trustee for the property of the missing person;
on the basis of the decision, the local registry office enters information about death into the civil registration book;
When the whereabouts of a missing citizen are discovered, one of the consequences will be the issuance of a new decision, canceling the previously made one, as well as the cancellation of the entry in the above-mentioned book.

Sample application for declaring a citizen dead

When filling out an application, it is recommended to follow the rules established when filing claims. We offer a general example when a citizen is declared dead due to the period of absence from his place of residence.

In _______________________ (name of the court) Applicant: _______________________________ (full name, residential address,

telephone, e-mail) Interested person: ____________________ (full name, address of residence,

if known: date and place of birth, place of work,

one of the identifiers - SNILS, INN, series and passport number,

driver's license, car license, telephone, e-mail)

Declaring a citizen dead in 2021: main features of the procedure

In accordance with the provisions of Art. 45 of the Civil Code of the Russian Federation, a person may be declared dead by the court if at his place of residence there is no information about his place of stay:

Within six months - if he went missing under circumstances that threatened death or gave reason to assume his death from a certain accident;

Within five years - in all other cases.

The following must be kept in mind:

An application to recognize a citizen as deceased can be submitted by any interested person - relative, spouse, employer, creditor, etc.;

As a general rule, such an application is submitted to the district court at the place of residence or location of the interested person;

Evidence must be attached to the application. For example: a certificate from the citizen’s place of residence, a certificate from the police about the results of the search; testimony of relatives, co-workers, friends, neighbors, certificates from the place of work about the citizen’s absence from the workplace, etc.;

Cases on declaring a citizen dead are considered with the participation of a prosecutor - to protect the rights and interests of the citizen in respect of whom a request to declare him dead has been made;

The day of death of a citizen declared dead will be considered the day the corresponding court decision enters into legal force;

Based on a court decision, civil registry authorities issue a death certificate to a citizen.

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What are the conditions for recognition?

Very often, citizens file lawsuits before the missing person is declared dead.

This is done in some cases:

A situation when a missing person needs to be deregistered at his place of registration.
If it is necessary to register an inheritance of property that belongs to the missing person.
If you need to apply for survivor benefits.

This issue is regulated by Article 45 of the Civil Code for 2021 of our country.

IMPORTANT !!! A person who is not at the place of registration can be considered missing, and any information has been missing for 5 years.

The period of loss can be reduced to a minimum of six months in the following situations:

The citizen disappeared during natural disasters or cataclysms and is considered missing.
A person disappeared during an accident or disaster.
The person disappeared under other circumstances that are associated with a threat to human life and health.

If it is impossible to determine exactly the time when a person disappeared, then the countdown begins from the month that follows the month of disappearance. If the month cannot be determined, then the countdown will begin from the beginning of the year following the year of loss.

An example would be a situation where a citizen disappeared in February of the current year, then filing an application with the court can only be done from March 1, 2024.

If suddenly we are talking about hostilities, then the disappearance of a person will be considered death 2 years after the end of hostilities.