During the process of entering into an inheritance, a notary may refuse to issue a certificate in respect of some objects and recommend filing a claim with the court to include the property in the inheritance mass. This need arises when the testator’s ownership of the thing cannot be confirmed with documents. That is, when such documents are missing, compiled incorrectly, or contain errors. For example, a non-privatized apartment, a summer cottage or a plot of land, the ownership of which is not registered in the state register of rights.
When entering into an inheritance, documents regarding the property are provided both by the heirs and requested by the notary who conducts the inheritance case. The court's decision on the claim for inclusion of property in the inheritance mass will become the basis for taking the object into account as part of the inheritance and dividing it between the heirs or recognizing the right of ownership in the order of inheritance. For your convenience, we have posted an example of such a claim. If you have any difficulties, you can use the help of the site’s on-duty lawyer.
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Statement of claim for inclusion of property in the inheritance estate
What is this hereditary mass?
The estate is the totality of property rights and obligations of the deceased person directly related to the property owned by the testator. Those parts of the inheritance that belong to the category of benefits are called assets, and the property obligations of the deceased are called liabilities. They are transferred to the new owner only in aggregate.
In other words, the subject of inheritance can be not only movable or immovable property, but also financial or other forms of obligations, debts. Responsibilities are inextricably linked with the legacy and pass on to the heir.
Legal successors have the right to demand the return of funds lent to the now deceased, compensation for damage caused to him or the due funded part of the pension (if it was not received at least once).
It is impossible to partially accept the inheritance or refuse a component share: the successor will either receive the benefits along with the debt, or will give up everything. Selective inheritance is allowed only when the recipient of the property is both a legal heir and one according to the last will of the will. This situation allows for the choice of the most favorable balance of rights and obligations.
If there is a will, the heirs are assigned the distribution of shares according to the last will of the testator.
In accordance with the concept of inheritance, legal successors have the right to begin to use the property of the deceased before the completion of the registration procedure. For example, living at home, driving a car, and so on.
When other successors quickly accepted the inheritance with a hasty sale, other successors are entitled to sue for an amount of funds equal to their due share. For example, when selling an apartment to another recipient of the inheritance, the portion due by right of inheritance will be paid in accordance with the amount of the proceeds.
If the successor has a residence permit in the testator’s apartment, then he receives the right of priority in the allocation of the due part of the inheritance.
Bank deposits
This question is more complex, but still it remains completely solvable. The fact is that today the law obliges banks to provide notaries (upon request) with information about the availability of citizen accounts.
There is only one problem in this matter - how to find out in which bank an account could be opened in the name of a deceased relative? Typically, a notary does not conduct a targeted search and submits requests to all regional banks.
If the heir wants to speed up the process, he can independently submit the notary request to one or another bank, which is obliged to provide information about the availability of the testator’s accounts within a month. If the bank delays in responding, its actions can be appealed to the Central Bank of the Russian Federation or to court.
Some heirs try to submit a request to the bank on their own. However, the bank will issue a response to such a request only if a testamentary disposition has been issued in the name of the heir.
To speed up the process of searching for bank deposits that make up the inheritance estate, you can contact the Federal Tax Service. The fact is that banks report all open accounts to the tax service. And the Federal Tax Service can provide this information to the notary handling the inheritance case.
However, today it is not determined by law whether the tax authority must provide this information to the notary or not. Therefore, the Federal Tax Service often refuses notaries to provide such information. But in this case, you can go to court, and the latter often sides with the heirs, obliging the Federal Tax Service to provide this information, since the heir needs it to ensure his legal rights.
What property can be included in the inheritance mass?
Inheritance of the property of the deceased is carried out in accordance with the current civil legislation of the Russian Federation.
Debt obligations include promissory notes, issued loans, and the obligation to make payments under the agreement.
Hereditary succession arises upon the death of a citizen, involving the transfer of various items of heritage to a potential new owner and includes:
- real estate (house, apartment, garage, non-residential building, land plot);
- movable property (transport, furniture, equipment, jewelry);
- cash, deposit account, securities and so on.
To add any form of property to the estate, the future owner will need to provide the notary with documentary evidence of the testator's right to own and dispose of this property.
The estate of inheritance may include other personal belongings of the testator.
If for some reason the property was not privatized or the registration procedure was not completed, it is allowed to complete the process in person or resolve the issue through the court. Properly carried out registration allows you to attach the property to the inheritance mass.
If anything unclear arises, it is recommended to seek legal advice.
Place of opening of inheritance
Determining the place of residence of a citizen at the time of death is also important. After all, such a place will be the place where the inheritance is opened.
The place of residence of the testator may be confirmed by documents certifying his corresponding registration with the registration authorities of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation.
As stated in the law:
If the last place of residence of the testator who owned property on the territory of the Russian Federation is unknown or is located outside its borders, the place of opening of the inheritance in the Russian Federation is recognized as the location of such inherited property.
If such inherited property is located in different places, the place of opening of the inheritance is the location of the immovable property or the most valuable part of the immovable property included in it, and in the absence of immovable property, the location of the movable property or its most valuable part.
The value of property is determined based on its market value.
What is not included in the hereditary mass?
Some things and objects of the deceased are not allowed to receive inheritance rights:
- structures, buildings erected by the testator without obtaining the appropriate permission from state authorities;
- legal grounds, obligations related directly to the person of the deceased (appointed alimony payments, loan guarantee, etc.);
- position, authorship, title;
- share of ownership of property acquired jointly during marriage.
The exclusion of erroneously classified possessions is carried out only in court.
The share of the inheritance, which is obligatory for succession by a special category of legal successors, cannot be inherited.
Actions with inheritance mass
Inherited property can be added to, reduced, accepted or renounced.
If the testator does not have documents on the right of ownership, or the papers were filled out with errors, then the property cannot be included in the total estate.
If there are disagreements with the composition of the inherited property, potential heirs must, within six months from the moment the notary office opens the inheritance case, send a claim to the district judicial authority.
There are different types of property that are subject to inheritance:
- membership in economic and consumer cooperatives;
- organization or production;
- ownership of a farm participant;
- items of limited circulation;
- territorial allotments;
- unpaid funds that are the main source of livelihood of the testator;
- state awards, orders and so on.
The succession of rights from these categories is carried out according to a special procedure prescribed by Chapter 65 of the current Civil Legislation.
The deceased’s existing production (firm, company) is accepted along with current expenses and debts. It is impossible to make only profit or lead an organization without paying off debt obligations.
Acceptance of an inheritance within a period of six months from the date of death of the testator is formalized by a notary. To do this, future owners must themselves come to the notary firm located closest to the inherited property and submit an application about their desire to acquire inheritance rights. The following documents must be attached:
- the applicant's identity card;
- grounds for ownership of property by the testator;
- confirmation of the status of the successor (marriage certificate, birth certificate, change of surname, will);
- death certificate of the person;
- receipt of payment of state duty.
Entering into inheritance rights is not mandatory. If a potential successor does not want to become the owner of the inheritance, a written refusal must be drawn up. Absolute refusal or in someone else's favor is allowed.
In relation to the legal aspects of inheritance proceedings, the heir can receive either everything he is entitled to or nothing. For example, if the testator left a private house and apartment to the successor, then you cannot choose one thing: the successor must accept all the benefits of the deceased.
When the now deceased makes a will concerning the distribution of the inheritance in part, then the part that is not indicated within the last will of the testator is subject to inclusion in the estate of the legal heirs.
Concept and formulation of hereditary mass
In inheritance law, the concept of inheritance mass means the entire volume of property and intangible rights belonging to the deceased, as well as the amount of all debt obligations of both the deceased himself and third parties to him. However, some objects that were actually owned by the deceased may not be included in the estate for various reasons.
Depending on each specific case, the direct process of including property or intangible rights, as well as obligations in the inheritance mass may differ. Cases concerning the inclusion of property in the estate are considered by a notary at the place of residence of the deceased. When a trial begins, the jurisdiction of such a case is determined by the standards of the Code of Civil Procedure of the Russian Federation.
Procedure for inclusion and exclusion of property
A claim for inclusion in the estate must be filed no later than 6 months from the date of death of the testator.
If a legally established period is missed for good reasons, a procedure for restoring the inheritance period is allowed. In fact, nothing is restored: the court considers the application, evidence of the weight of the reason, and if the answer is positive, issues a court decision to assign the right of inheritance.
To challenge an inheritance in order to restore the terms or rights of ownership, the law establishes a period of 3 years, after which it will be more problematic to prove the grounds for inheritance.
The court also cancels previously issued certificates to other heirs and recalculates shares. With the finished document, you can go straight to the registration chamber to register a certificate of ownership. Thus, there is no need to contact a notary.
Inclusion in the inheritance mass is carried out on the basis of provided documents and a court decision. It is also possible to carry out the procedure after correcting erroneous filling or completing the documentation process.
Based on the fact of the court's decision, it will be decided to include or not include the testator's things in the estate.
Exclusion of property from the estate occurs if it was not documented in the name of the testator or was registered with errors. Property that is not subject to division cannot be excluded from the inheritance.
Any interested person has the right to apply to the court for an exclusion procedure.
Rights related directly to the personality of the testator, benefits and obligations not permitted by law, and intangible benefits cannot be included in the inheritance.
The successor may be disowned from inheritance by the court or by the testator. This is possible if the heir was found unworthy. An unworthy successor is considered to be a citizen whose guilt in illegal or unlawful acts in relation to the testator has been documented. When considering a case, it is allowed to bring witnesses.
An unlawful act may be evasion of prescribed alimony payments, physical or mental violence, failure to provide assistance, and so on.
Procedure for going to court
The procedure for including property in the inheritance includes:
- Collection of evidence.
- Preparing a claim.
- Payment of duty.
- Going to court.
- Obtaining a court decision.
- Applying to a notary to issue a certificate.
Important! A better option is to include property in the estate and at the same time recognize ownership of it. Otherwise, you will have to contact a notary and pay an additional fee.
Deadlines for filing a claim
You can go to court with a claim for inclusion in the estate only within 6 months from the date of opening of the inheritance. If this period has expired, the applicant must apply to the court for recognition of ownership rights.
Don't hesitate to submit your application. If the period expires, the applicant will need to go to court to restore the period. But the court does not always agree to an extension. Therefore, the heir may lose his share.
Important! Often, the court takes into account the actual acceptance of the inheritance, even if it is necessary to additionally include property in the inheritance mass.
Thus, the person who has actually assumed the rights has the right to receive property that was not initially included in the inheritance.
Jurisdiction
The application is submitted to the district court.
Depending on the property, the claim is sent to:
- to the court at the location of the property (for real estate);
- to the court at the place where the inheritance was opened (for movable property, accounts, shares).
Example. The Ilyinas opened a bank account in the name of their wife and saved money on it. The husband died. The widow and daughter from her first marriage acted as heirs. The girl had to go to court to include ½ share of the funds in the account as part of the inheritance.
Collection of documents
An appeal to the court is necessary if the heir does not have title documents for the property. However, he must prove that the testator used the property lawfully.
Sample list of documents:
- passport;
- documents on inheritance rights (kinship or will);
- resolution on transfer of the object for use;
- social tenancy agreement for an apartment and warrant;
- evidence that the testator wanted to register ownership of the property, but did not have time.
Drawing up and procedure for filing a claim
All documents are transferred to the court at the location of the object of inheritance. If a personal visit is not possible, sending by mail or transfer through a third party is allowed. Before mailing, all documents must be certified by a local notary. The letter is issued with acknowledgment of delivery. Usually, they send a registered letter, but for documents it is recommended to use a valuable item with a description of the attachment, to which you can also attach a notification. When documentation is sent through an intermediary, a notarized power of attorney is required to perform the act on behalf of the applicant.
In an application for inclusion of property in the estate, the following must be indicated:
- personal details of the testator;
- information about the property owned by the deceased;
- information about the plaintiff;
- information about the notary handling the inheritance matter;
- indicate the possessions that were not included in the inherited mass, indicating the reasons;
- other potential successors;
- a package of papers confirming the property rights of the testator;
- request that the properties be included in the main composition.
The appeal necessarily contains the main parts of the semantic content. The introduction contains the details of the participants in the trial and the essence of the requirements. The description reveals the defendant's objections. The motivational part of the document contains the evidence base. The conclusion includes the date of preparation and the signature of the applicant.
An additional package of documents must be attached to the petition, on the basis of which the court can make a verdict:
- as many copies of the claim as there are people involved in the procedure;
- tax payment receipt;
- death certificate;
- confirmation of the testator's ownership;
- an extract on the value of the inherited property.
Documents are required so that there is something on which to make a decision.
The amount of the state duty is not fixed, but depends on the cost of the statement of claim or is calculated using the report forms of an invited appraiser. Based on the cost estimate, the value of the claim is calculated.
Peculiarities of inheritance of jointly acquired property
The spouse of a deceased citizen has the primary right of ownership of the object of inheritance. First, 50% of the jointly acquired property is allocated from the total personal property of the deceased. This part of the property from the estate has a second name: the marital share.
According to current legislation, first the husband or wife acquires an obligatory part of the inheritance, and the remaining amount of property is evenly distributed among other legal successors.
Only citizens who entered into an official marriage with a now deceased citizen have the right to own part of the jointly acquired property. A common-law husband or wife will be able to claim anything only if they prove their dependency.
