How To Inherit Property

Table of contents:

How To Inherit Property
How To Inherit Property

Video: How To Inherit Property

Video: How To Inherit Property
Video: CSS how to inherit property values from parent elements 2024, March
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  • Accept inheritance

    Declaration of acceptance of inheritance

  • Refuse inheritance
  • Obtaining a certificate of the right to inheritance
  • Terms of acceptance of inheritance
  • Testamentary waiver. What it is
  • Documents

    • If the apartment is inherited
    • If the dacha is inherited
    • If a land plot is inherited
  • Grounds for inheritance
  • Disputes between heirs
  • Inheritance of an apartment with encumbrances
  • Inheritance of a rented apartment
  • Inheritance of an apartment purchased under a mortgage
  • How to divide an inheritance
  • To heirs about taxes and payments
  • Features of inheritance of a land plot
How to inherit property
How to inherit property

Perhaps right now, having lived a long and happy life, quietly, in a dream, your distant relative, who owned a dozen apartments or a hundred hectares of land not far from Rublevskoye Highway, during her lifetime. And you are the only heir!

Sometimes it happens. But is it always beneficial to receive an inheritance? Will it not bring more problems than wealth? And in general, how does this happen? What are the procedures for inheriting real estate? Where and how is the right to inheritance formalized? What "pitfalls" are hidden along the way? We will tell you about this in this article.

Accept inheritance

To acquire inherited real estate, first of all, you will have to accept it. The rules for accepting real estate in inheritance basically correspond to the rules for accepting inheritance of property of a different kind.

To accept real estate as inheritance means to agree that by declaring it your property, you, in addition to the right to own, dispose and use this real estate, undertake to fulfill all obligations arising from this right. That is, if you inherit real estate, then not only all rights to it, but also all obligations of the testator pass to you. For example, all debts for utility bills, rent and others.

If there are several heirs, then they bear the burden of these debts, in proportion to the shares of the inheritance received by them. Even considering that the heirs are not obliged to pay off the debts associated with the acquired real estate in an amount exceeding its market value, the amount can be impressive. Given this moment, the heir is not at all obliged to accept the inheritance. He can refuse it.

If there are several heirs, then the acceptance of the inheritance by one or more of them does not mean acceptance of the inheritance by all the others. The legislation defines two options for accepting the inheritance after its opening.

The first is to submit an application to a notary body for the acceptance of the inheritance.

The second is to submit an application to a notarial body with the requirement to issue a certificate of the right to inheritance, upon actual entry into possession of the inherited real estate.

Declaration of acceptance of inheritance

The heir (s) submits an application at the place of opening of the inheritance. Such place is the place of permanent residence of the testator, or the place where he lived for a long time and was registered at the time of death.

If the place of residence of the testator who owned real estate in the Russian Federation is unknown, or is located abroad, then the place of opening of the inheritance should be considered the location of the real estate, and if there are several real estate objects, then the place where the most expensive object is located.

The application is submitted to a notary or an official authorized to issue certificates of the right to inheritance.

Refuse inheritance
Refuse inheritance

As mentioned above, to apply for the acceptance of the inheritance, you should contact a notary authorized to conduct inheritance affairs at the place of opening of the inheritance. But there may be several notaries in this area. Therefore, find the one who deals with the affairs of the testators, with certain surnames. The fact is that letters from A to Z are distributed among notaries. Each of them deals with the affairs of the dead, whose surname begins with the letter "subordinate" to him.

An inheritance (apartment, house, land plot) is considered to be accepted by the heir automatically if the heir at the time of the death of the testator lived there legally, since this residential property is actually already in his possession.

Refuse inheritance

There are times when the heir does not want to accept the inheritance. This can happen due to the large debts of the testator associated with this real estate, with some kind of family situation, or in the case when the real estate is so illiquid that the time and money spent on its registration will not be justified by its acquisition.

In order not to accept the inheritance, you need to give it up within the period allowed by law to accept the inheritance. If the heir missed this period, then at his request, the court may recognize the heir as having refused to inherit the immovable property even after the expiration of this period.

If the heir to the immovable property is a minor or incapacitated (partially capable), then such a refusal is possible only upon obtaining the consent of the guardianship and guardianship authorities.

Terms of acceptance of inheritance
Terms of acceptance of inheritance

An application for refusal to accept the inheritance is submitted to the same territorial notary bodies.

Gentlemen "refuseniks", remember that having abandoned the inheritance under the influence of emotions, or having made such a decision in the heat of the moment, you will never be able to claim it again. This action is irreversible.

Obtaining a certificate of the right to inheritance

Even if the heir has already actually accepted the inheritance, that is, he disposes of and uses it, repairs the inherited real estate, pays real estate tax and performs all the necessary actions arising from his right to this property, he needs to contact a notary to obtain a certificate of the right to inherit …

He can do this both personally and through his representative. The power of attorney, which is issued to the representative, must clearly stipulate all his powers, limited only to obtaining a certificate. A more expanded interpretation of the powers of a trustee, especially if it is an outsider, can lead to unforeseen consequences.

When checking the certificate of the right to inheritance upon receipt, pay attention to what should be indicated there. First of all, this is the date of issue of the certificate, the full name of the notary, the full name of the testator and heir (heirs), the degree of their relationship with the testator, or an indication that they receive this property as inheritance on the basis of a will, place of residence of the heir (heirs). In addition, there must be a description of the inherited property. Its location, assessment and share due to each of the heirs, the amount of state duty paid to the notary, his signature and official stamp with the name, initials and license number.

If among the persons who received the certificate of inheritance there is a minor, incapacitated or partially incapacitated, the certificate must be submitted to the guardianship and guardianship authority, about which an entry is made on the certificate.

Terms of acceptance of inheritance

For the acceptance of the inheritance, the law defines a period of six months. During this time, all interested parties must apply for the acceptance of the inheritance.

The six-month period is calculated from the date of death of the testator.

If the owner of the inherited property has been absent for a long time, and there is no information that he is alive, the court may, by its decision, declare him dead. In this case, the date of the opening of the inheritance, and the beginning of the six-month period, is the date of entry into force of such a decision.

It often happens that the heir misses the deadline for submitting an application for acceptance of the inheritance. He may simply not know about the death of the testator, who was his distant relative. In this case, the heir, through the court, can restore this period and recognize the heir as having accepted the inheritance. However, for this, the heir will have to provide convincing evidence that he did not know or should not have known about the discovery of the inheritance. You can also apply to the court with such a statement only within six months from the date when the heir actually learned about the opening of the inheritance, or should have learned about it.

It is possible that by the time the court made such a decision in favor of this heir, other persons had already entered the inheritance rights on legal grounds. In this case, the certificates of the right to inheritance they received are recognized by the court as invalid, and the entire registration procedure is repeated anew, taking into account the newly arisen circumstances.

Testamentary waiver
Testamentary waiver

If persons who have previously received certificates of the right to inherit this immovable property give written consent, certified by a notary, to accept the inheritance by the newly announced heir, then there is no need to go to court.

The notary shall annul the certificates of inheritance previously issued by him, and issue new ones to all heirs, taking into account the newly discovered circumstances.

If the certificates of the right to inherit real estate have already been registered with the local authorities for registration of rights to real estate and transactions with it, then this registration is also reissued.

It should be remembered that if an application for the acceptance of the inheritance must be submitted to the notary authorities within six months from the date of opening the inheritance, then the certificate of the right to inheritance can be issued no earlier than after this period.

The six-month "moratorium" on the issuance of a certificate of the right to inheritance is a measure by which the State protects the interests of all probable heirs. However, in exceptional cases, when there are no other heirs, except for those who have already submitted the application, it is obvious that this period can be reduced.

But the six-month period can be extended. This happens by a court decision when, at the time of the death of the testator, a child was already conceived, who, by law or by will, will also have the right to inheritance. After all, the interests of the newborn should be taken into account, especially if it concerns his future home.

Immediately after the birth of the child, the countdown of the six-month period resumes.

Immovable property accepted by inheritance belongs to the heir from the moment of opening the inheritance, and this right does not depend on the terms of its state registration.

The heir who has inherited real estate is obliged to pay tax on this property. To do this, the tax authority located at the location of the real estate sends him a notification with the amount of tax and payment details.

Before paying this tax, even a person who has entered into inheritance rights is not entitled to conclude transactions for the alienation of this property, that is, to sell, donate or exchange it. When making this type of transaction, it is required to provide a statement from the tax authorities on the payment of property tax. (This property tax should not be confused with inheritance tax, which has been abolished.)

Testamentary waiver. What it is

Often, the testator has reason to take care of the interests of some persons in advance who do not have the right to inherit by law. In this case, he makes a so-called "testamentary waiver" in the will.

A testamentary refusal is the requirement of the testator to the legal heirs to allocate parts of the inheritance in favor of the persons (persons) designated by him. Such persons are called consignees.

If we are talking about immovable property, in particular, about a dwelling, then the legacy may contain a requirement of the testator to grant these persons (person) the right to reside in this room until the end of life or for the period specified in the will.

If the heir decides to sell the property, then the testamentary will become an encumbrance that prevents this transaction. And the situation can be resolved only by mutual agreement of the heir and the consignee, on the provision of the latter with an equivalent living space, or the amount of money sufficient to acquire it.

The consignee has the right to exercise his right within three years from the date of the will. At the same time, the right to use the testamentary refusal cannot be transferred by it to other persons.

Grounds for inheritance
Grounds for inheritance

An exception is the situation when, in the will of the legatee, another, specific, legatee is assigned by the testator.

And now everything is the same, but in human language.

Anticipating his death, one person wants to provide housing for another, dear to him, who is not his direct heir. To do this, in his will, he instructs the heir (heirs) to allocate a place in the apartment or house for this person to live. In addition, the deceased, foreseeing the possible death of this person close to him, which may occur before his own death or simultaneously with his death, “appoints”, adds another person to his will who can use this right to a part of the real estate. This second consignee may also exercise this right in the event of a refusal by the first consignee.

This is a humane item, as if it was specially created in order to provide housing and property for illegitimate children of citizens who are inclined to have connections "on the side".

However, "the law is the law." And we have no right to comment on it.

The consignee may waive the testamentary waiver. But the refusal can only be complete. Either everything or nothing. No terms and conditions are allowed.

Documents

If you are an heir by law or by will, then in order to open an inheritance case, you should collect the following documents:

  1. Death certificate of the owner of the property (original and copy).
  2. Extract from the house book at the place of residence of the testator.
  3. Documents proving the identity of the heir and the degree of his relationship with the deceased:

    • heir's passport (original and copy);
    • birth certificate of the heir (original and copy);
    • marriage certificate of the heir (original and copy);

If it is known that a will exists, then it is imperative to find it or its notarized copy. When it is found, the notary who previously certified it will have to make a note on it that during his lifetime the testator did not make any changes to it, and that it was not canceled as a whole.

A list of other heirs mentioned in the will (addresses, phone numbers, degree of kinship) should be provided to the notary conducting the inheritance case.

All these documents are submitted to the notary authorities for verification.

In addition to documents confirming your right to inheritance, you need to collect documents for the inherited real estate, namely:

If the apartment is inherited

  1. Documents of title, which can be:

    • apartment transfer agreement and Certificate of ownership of it;
    • an investment agreement for the construction of an apartment (if any);
    • for apartments in new buildings, an agreement on the assignment of rights of claim;
    • a contract of purchase and sale of an apartment or an agreement of donation, exchange;
    • certificate from the housing cooperative about the full payment of the share;
    • if the testator himself previously inherited the apartment, his certificate of the right to inheritance;
    • if the testator received this apartment by a court decision, then a copy of this decision;
    • a copy of the certificate of registration of ownership of the apartment;
    • apartment acceptance certificate.
  2. From the BTI you should obtain documents valid throughout the year:

    • a document on the book value of an apartment or part of an apartment, as of the day of the death of the testator;
    • a photocopy of the floor plan of the apartment certified by the BTI;
    • a photocopy of the apartment explication certified by the BTI;
  3. In the housing office (DEZ, REU, the board of housing cooperatives and their analogs) at the last place of residence of the testator, you need to get an extract from the house book, which indicates who lived with him, and an extract from the personal account. Both documents are valid for one month.

If at the time of the death of the testator, his heirs lived with him, and the apartment belonged to them as common property, then these heirs will have to sign an agreement on the distribution of shares between them.

If the dacha is inherited

  • documents of title to the dacha;
  • assessment of the cottage on the day of the death of the testator;
  • explication of the BTI;
  • BTI floor plan;
  • extract from the building passport.

By the way, there are situations when title documents are available only for a land plot. And the house and other buildings are not decorated.

In this case, it is recommended to first formalize the inheritance right to the land plot, and then the heir will be able to calmly formalize the buildings on it.

If a land plot is inherited

  • certificate of registration of ownership of a land plot (old forms of blue, pink and white colors are still valid);
  • cadastral plan of the site;
  • a certificate from the USRR on the absence of arrests and prohibitions on the land plot;
  • the duly registered contract of sale (exchange or donation), on the basis of which this site was acquired.

By the way, about the cadastral plan. It is almost impossible for the heir to legally obtain the cadastral passport of the plot. After all, he is not yet its owner. But the notary persists. He has his own instructions, which contradict those available in the Federal Service for State Registration, Cadastre and Cartography. In this case, remind the notary of another instruction, according to which he must independently send a request to the Federal Service for State Registration, Cadastre and Cartography and receive the document he needs there.

  • assessment of this land plot on the day of the death of the testator;
  • certificate from local tax authorities about the absence of debt.

The above documents are submitted for examination to the notary body for verification of the ownership of the real estate by the testator and the possibility of transferring this property to the heir. The notary compares the technical characteristics of the inherited property, its address, and other data, with the information contained in the documents provided. If the documents contain correct information and are authentic, the notary informs the heir (s) of the date of receipt of the certificate of the right to inheritance.

Grounds for inheritance

In accordance with the Civil Code of the Russian Federation, there are only two grounds for inheriting real estate. This is, first of all, inheritance by law, when the inheritors are the relatives of the testator. And inheritance by will.

The first ground applies whenever the deceased left no will.

If a person wants to independently dispose of the distribution of his inheritance, and intends to amend the principle of "inheritance by law", he can write a will and certify it with a notary.

Inheritance of an apartment with encumbrances
Inheritance of an apartment with encumbrances

Any citizen who survived the testator can be an heir, as well as children conceived during the testator’s life (not necessarily his children) and born alive after his death.

Agree, it sounds a little ominous. But, logical and practical.

In a will, legal entities can also appear as heirs, in addition to people. Moreover, both non-profit and charitable organizations and commercial structures. There are no restrictions. Except one. Also ominous.

Under any conditions, regardless of the degree of kinship or the provisions of the will, the murderer cannot inherit the deceased.

When inheriting by law, heirs are ranked in order of priority. This order is determined by the "number of births" separating the testator from his relatives.

Each level of this gradation is called a queue. The heirs of each successive turn can claim the inheritance only in the absence of the previous turn or refusal of representatives of this previous turn to accept the inheritance.

The property is distributed in equal shares among the heirs of the first stage. An exception is the case when the heir of the first stage died before the registration of the inheritance. Then the order of "inheritance by right of representation" takes effect. This means that the inheritance due to him is already transferred to his own heir.

The law provides for seven lines of inheritance:

  • first stage: children, spouse and parents of the testator;
  • second stage: brothers and sisters, grandfather and grandmother;
  • third order: relatives of the testator's uncles and aunts, native nephews;
  • fourth stage: great-grandfathers and great-grandmothers;
  • fifth stage: children of native nephews, great uncles and grandmothers,
  • sixth stage: children of cousins and granddaughters, children of cousins and sisters and children of the testator's great-uncles and grandmothers;
  • seventh order: stepsons, stepdaughters, stepfather and stepmother of the testator.

It should be noted that any property specified in the will can be inherited. However, some objects of inheritance could have been sold by the testator himself after the drawing up of the will, or otherwise lost. For example, if an apartment is indicated by the testator in the will, but he sold it during his lifetime, then, of course, it can be the subject of inheritance.

Yes, one more important detail.

All heirs of the same line have equal rights, regardless of their place of residence and citizenship. The application procedure for them is the same as for Russian citizens. And they can act through their representative, who has a properly executed power of attorney.

Disputes between heirs

Wave everyday situation. The heir of the first stage, after the death of his next of kin, submits an application for acceptance of the inheritance. And suddenly, the testator's will "pops up", in which he "writes off" part of his property or all his property to some third party. (By the way, the "hackneyed" plot of the authors of detective novels).

Disputes between heirs
Disputes between heirs

The current legislation of the Russian Federation provides for the priority of the heirs indicated in the will over persons inheriting by law, even if these are the testator's own children.

A notary has no right to challenge a will. Therefore, the case will have to be decided in court. But even there the chances are few.

There is one caveat. Namely, half of the joint property of the spouses acquired in marriage unconditionally belongs to the spouse who survived the testator. No will can change this situation. Thus, the order of inheritance by law can be changed by the testator only in that part equal to 50% of the jointly acquired property that belonged to him during his lifetime.

However, for this exception, in turn, there is an exception. Namely, this order can be changed in advance in the marriage contract. And there you can write anything you want. But that is another story.

Inheritance of an apartment with encumbrances

When preparing documents for registration of an inheritance, it may suddenly turn out that the inherited property has certain encumbrances.

What follows from this? In each case, the consequences are different.

Inheritance of a rented apartment

For example, if the inherited immovable property is leased to a third party, the entry into inheritance rights by the new owner of this property is not a basis for termination or revision of the terms of the lease agreement, or is allowed in the manner prescribed by this agreement.

Inheritance of an apartment purchased under a mortgage

If the inherited apartment is pledged by the bank that issued the mortgage loan, then, first of all, you should find out how the testator was insured when receiving this mortgage loan. Typically, banks insist on life insurance for such a person to reduce the risk of losing their money.

Thus, if the cause of the death of the testator is recognized as an insured event, then the insurance company will be obliged to make a payment in favor of the bank that has this apartment as a pledge. If the sum insured is enough to pay off the mortgage loan, then the encumbrance is removed from the apartment.

However, this money may not be enough, or if the cause of the death of the testator is not recognized as an insured event, then there will be no payment at all. What then?

Then, if you have applied for the acceptance of the inheritance, you will have to repay the loan yourself. The bank that issued the mortgage loan will re-execute the loan agreement for you on the basis of a certificate of inheritance rights issued by a notary.

Whether to do this is up to you. After all, you have the right to refuse to accept the inheritance, and not make yourself such problems. But…

There is always this "BUT"!

The fact is that you do not have the right to refuse part of the inheritance. Let's say, give up an apartment bought on a mortgage, but accept a collection of paintings. Only from everything completely.

That is, if you give up the apartment for which you have to pay off the loan, you will automatically lose the rights to the rest of the inheritance. Therefore, if it's worth it, you'd better "harness" this loan. And then, after accepting the inheritance, sell the apartment, and pay the bank everything that is due to him from the money received from the sale of this apartment.

How to divide an inheritance

Sometimes situations arise when the testator in his will listed the persons to whom he leaves his inheritance, but, for some reason, he did not indicate in the will to whom and how much he leaves. What to do in such cases?

Before dividing the inheritance, you need to accept it. How this is done is already described in this article. Naturally, applications for acceptance of the inheritance must be written and submitted to the notary by all persons listed in the will.

How to divide an inheritance
How to divide an inheritance

After the notary has checked all the documents submitted to him by the heirs, he issues them certificates of the right to inheritance. Since there are several heirs, the inheritance goes into common shared ownership. This means that the shares of all heirs listed in the will are considered equal. After all, the testator did not indicate who gets how much.

Shared ownership of an inheritance means that all heirs have equal rights to own, use and dispose of the property received. But, you see, sometimes it is very inconvenient. Therefore, the heirs have the right to divide the inheritance and allocate their share.

But here another question arises. How to share property? How, for example, can you divide an apartment? After all, you cannot draw borders on the floor with chalk, or allocate a toilet and a kitchen to one heir, a room and a bathroom to another, and a balcony and a dressing room to the third. This is absurd.

It should be borne in mind that the separate premises formed as a result of the division of the apartment must comply with the norms of the living area.

And here it turns out that even if all the heirs are listed in a single list in the will, some of them have preferential rights. So, if a house or apartment is inherited, the division of which is impossible, then the heir who lived there at the time of the death of the testator and has no other housing has the preferential right to receive premises suitable for living.

If the dwelling received by the heir in the order of his preemptive right, in value terms, is significantly greater than the part that is due to each individual heir, he, with their consent, can compensate their shares with other things from the inheritance, or satisfy their claims in cash …

The division of the land plot takes place in a similar way. That is, if it cannot be divided into equal shares suitable for housing construction, then the priority right to receive a part of the plot sufficient for building a house belongs to the person who previously owned it together with the testator. The rest of the heirs should receive compensation due to them, equal to the market value of the part of the land that they received less.

If none of the heirs has a preemptive right, then they own, manage and use the land on the terms of shared ownership.

An explanation should be made.

Sometimes, an inherited piece of land cannot be divided among all heirs, because there is a concept of “minimum size of a land plot”. That is, for this or that type of activity, you can use a plot of land no less than the area defined by the legislation of the constituent entity of the Federation in which it is located.

To heirs about taxes and payments

In July 2005, a law was passed abolishing inheritance tax. Undoubtedly, this is a very positive step made by the authorities towards citizens. Indeed, earlier, some heirs simply could not afford to pay inheritance tax, because it could reach several tens of thousands of dollars. This law came into force on January 1, 2006.

However, when you receive an inheritance, you still have to pay. To the notary.

The legislation retained the norm providing for payment for the issuance of a certificate of inheritance. If you are the heir of the first stage, the state duty for obtaining a certificate is 0.3% of the value of the inherited real estate.

If you are the heir of the second and subsequent stages, as well as if you inherit by will, without being the heir of the first stage, then 0.6% of the value of the property is paid. In addition, the notary's own fee is 0.3% of the value of the property.

The value of the inherited real estate, at the choice of the heir, is determined either by an independent licensed expert appraiser, or by the BTI authorities.

In addition to calculating the state duty, real estate appraisal may be necessary in the event of disputes between the heirs. It often happens that the heirs cannot share the property they have inherited. In this case, they can either sell it and divide the money, or agree with one of the heirs that he becomes the owner of this real estate, and compensates everyone else for their shares in monetary terms.

Upon receipt of a certificate for the right of inheritance, persons who lived with the testator on the day of his death and who continue to live in the same living space after his death are exempted from paying state duty.

For those who do not know, or have forgotten. Prior to the adoption of the new law in 2005, the state duty was 13%. Agree that progress is evident.

Features of inheritance of a land plot

In general, the rules for inheritance of land plots are similar to those for other real estate objects. However, there are also some peculiarities.

First of all, for the purposes of inheritance, the land plot must be individualized, that is, its location, boundaries and size must be clearly defined.

Features of inheritance of a land plot
Features of inheritance of a land plot

For the inherited land plot, its legal regime must be determined, that is, its functional purpose must be indicated, for example, for housing construction, for agricultural production, or for some other purposes. It should be remembered that all land plots have different functional purposes, neglect of which may lead to sanctions against violators.

As a rule, the inherited land plot is located outside the city, and the inheritance has to be drawn up in the city where the testator permanently resided. This creates additional difficulties with the collection of documents, most of which will have to be received on a working day, often spending it entirely for the sake of one piece of paper.

The documents of title to land plots are often lost by the previous owners, and they will have to be restored.

Not all land plots are registered in the cadastre. How this happened is not clear. But without it, the document on the registration of the site for cadastral registration, the heir will have to interrupt his work for 2-3 months. During this time, he will wait for the fulfillment of his order for the production of works on land surveying and its registration in the cadastral register.

Such work is performed by special land management companies, whose services cost, as a rule, from 3 to 6 thousand rubles.

After the heir receives from a notary a certificate of the right to inherit a land plot by will (law), he should submit documents for registering ownership of the land plot to the local authority for registration of rights to real estate and transactions with it.

Submitted documents of title, a certificate of the right of inheritance, BTI documents for this land plot, a cadastral plan, a copy of the payment of the state duty and a statement in the form of the registering authority.

The processing time for documents is one month. However, it is rarely aged. Therefore, be patient. But you will receive an inheritance.

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